Background
Fabcot Pty Ltd brought a Class 1 appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) concerning Bayside Council’s deemed refusal of development application DA-2025/157. The original application was later refused by the Bayside Local Planning Panel. The application concerned a two-storey mixed-use development at 1543-1555 Botany Road, Botany, comprising basement parking, a ground-floor supermarket and retail premises, first-floor light-industrial units, signage and a three-lot stratum subdivision.
Following conciliation conferences under s 34 of the Land and Environment Court Act 1979 (NSW), the parties reached agreement on an amended proposal and conditions of consent. The amendments and supporting material addressed matters including building height and floor-space-ratio variations, traffic works, drainage through an adjoining property, flooding, contamination, acid sulfate soils, excavation, signage and sustainability. The original application had attracted 25 submissions, and the amended proposal was provided to the active objectors who had participated or expressed interest in the conciliation process.
The Court’s Holding
Acting Commissioner Swan held that the parties had reached an agreement for the purposes of s 34 and was satisfied that their agreed decision was one the Court could properly make. The Court accepted that the written cl 4.6 requests justified departures from the applicable height limits and the 1:1 floor-space-ratio standard, and that the relevant statutory prerequisites—including transport approvals, flood controls, contamination remediation, essential services and arrangements for a drainage easement—had been adequately addressed.
The Court upheld the appeal and granted development consent to the amended application, subject to the conditions in Annexure A. It also ordered Fabcot to pay $30,000 within 28 days for Council’s costs thrown away because of the amendments. Because the proceeding was resolved by agreement under s 34, the Commissioner emphasized that the Court did not determine the matters originally disputed or independently assess the amended proposal against the discretionary considerations under s 4.15.
Key Takeaways
- A court may give effect to a conciliation agreement when the parties have agreed on the outcome and the court is satisfied that the agreed decision falls within the proper exercise of its functions.
- Written cl 4.6 requests supported approval of a maximum height of 14.3 metres and an FSR of 1.009:1 despite lower applicable height limits and a 1:1 FSR standard.
- Conditions and supporting agreements may establish adequate arrangements for matters still requiring implementation, including registration of a drainage easement before a construction certificate and later water-management approval for basement dewatering.
Why It Matters
The decision illustrates how a substantially amended development application can be resolved through court-supervised conciliation once the parties address jurisdictional prerequisites and agree on enforceable consent conditions. It also underscores the limited nature of a s 34 judgment: the Court confirms that the agreed outcome is legally available, but does not adjudicate the original disputes or conduct a full discretionary merits assessment of the amended proposal.