Background
Anuj Goel appealed North Sydney Council’s refusal of DA471/2025/1, which sought consent for the ongoing use of unauthorised alterations and additions at a dwelling in Waverton. The works included extensions, balconies, pool and spa decking, a sauna, privacy screens, windows and a fireplace, together with amended works and landscaping.
At a conciliation conference, Mr Goel supplied amended plans and supporting documents. The parties’ experts agreed that the amendments resolved the Council’s contentions and addressed objectors’ concerns about privacy, overlooking, noise and landscaping. The parties then reached a section 34 agreement for consent subject to agreed conditions.
The Court’s Holding
Acting Commissioner Bilmon upheld the appeal and granted development consent for the use of the unauthorised alterations and additions, subject to the conditions in Annexure A. The Court was satisfied that the parties’ agreed outcome was one it could make in the proper exercise of its functions, requiring it to give effect to that agreement under s 34(3) of the Land and Environment Court Act 1979 (NSW).
The Court accepted that consent cannot retrospectively authorise construction already undertaken, but can authorise the prospective use of unlawfully constructed works. It also accepted that an applicant’s past unlawful conduct is not itself a relevant consideration when determining a development application, except insofar as it provides information about the development’s impacts. The Court was satisfied that applicable planning, catchment, contamination, BASIX and public-interest requirements were met.
Key Takeaways
- Consent may be granted for the future use of unlawfully constructed works, even though construction cannot be retrospectively approved.
- Past unlawful conduct does not itself determine a development application’s outcome.
- Where a section 34 agreement is within power, the Court must dispose of the proceedings in accordance with it.
Why It Matters
The decision illustrates the distinction between retrospective approval of building work and approval for the ongoing use of existing unauthorised works. It also shows how amended plans, expert agreement and conditions can resolve planning impacts in a Class 1 appeal.
The Court expressly did not undertake its own merits assessment of discretionary matters under s 4.15 of the Environmental Planning and Assessment Act 1979 (NSW); its orders gave effect to the parties’ agreement after finding the jurisdictional prerequisites satisfied.