Background
JQ Wilton Pty Ltd, the registered proprietor of 5-7 Wilton Close, Castle Hill, lodged Development Application No. DA1697/2022/HA with The Hills Shire Council seeking consent to demolish existing structures and construct a seven-unit multi-dwelling housing development. The Council refused the application, prompting the applicant to lodge a Class 1 development appeal in the Land and Environment Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW).
The proceedings were initially listed for a hearing on 28 May 2026. After experts conferred and further information was exchanged, the parties identified that the outstanding issues had been resolved and requested that the matter be relisted as a s 34 conciliation conference under the Land and Environment Court Act 1979 (NSW). Commissioner Porter presided over that conference on the same day. During the conference, the Council agreed to the applicant amending the DA in accordance with annotated architectural plans (Revision F, dated 24 February 2026) that adjusted the reduced levels for ground floor finished floor levels.
The site is zoned R3 Medium Density Residential under The Hills Local Environmental Plan 2019, a zone in which multi-dwelling housing is permissible. The application engaged a range of planning controls, including provisions relating to building height, flood planning, earthworks, biodiversity and conservation, BASIX sustainability requirements, and site contamination (resilience and hazards), all of which were addressed through expert reports and an agreed jurisdictional statement submitted to the Court.
The Court’s Holding
Commissioner Porter upheld the appeal and granted development consent to the amended DA, subject to conditions set out in Annexure A. Proceeding under s 34(3) of the Land and Environment Court Act 1979, the Commissioner was required to give effect to the parties’ agreed decision provided it was one the Court could have made in the proper exercise of its functions. The Commissioner confirmed that obligation is limited to checking for jurisdictional constraints — not conducting a merits assessment — consistent with McMillan v Taylor (2023) 111 NSWLR 634 and Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170.
Having carried out the required jurisdictional check, the Commissioner was satisfied that all preconditions to the grant of consent were met. The amended DA complied with the 9 m height limit (at a maximum of 8.9 m), satisfied flood planning requirements through the submitted Flood Study, Stormwater Plans, and Flood Emergency Response Plan, and met the relevant provisions of the Biodiversity and Conservation SEPP and the BASIX SEPP. The site’s history of residential use also satisfied the contaminated land provisions of the Resilience and Hazards SEPP.
The Commissioner emphasised that, consistent with the s 34 conciliation process, no merit assessment of the originally disputed issues was made. The Court’s role was confined to ensuring the agreed outcome was within its power to grant, and having confirmed that it was, the Commissioner was obliged to dispose of the proceedings accordingly.
Key Takeaways
- Under s 34(3) of the Land and Environment Court Act 1979, once parties to a development appeal reach agreement at a conciliation conference, the Court must give effect to that agreement if it falls within the Court’s jurisdictional power — the Commissioner is not required to conduct an independent merits review.
- The jurisdictional check is limited to confirming there are no constraints that would preclude an order of the kind agreed upon, not an evaluative assessment of planning merits: McMillan v Taylor [2023] NSWCA 183 and Al Maha [2018] NSWCA 245 applied.
- Applicants in development appeals can amend their DA during proceedings under s 38 of the Environmental Planning and Assessment Regulation 2021, with the consent authority’s agreement, allowing amended plans to form the basis of the granted consent.
- Sites in the Hawkesbury Nepean Catchment Area must satisfy the water quality and flood management provisions of the Biodiversity and Conservation SEPP Ch 6; these can be addressed through expert stormwater, flood, and emergency response reports submitted during appeal proceedings.
Why It Matters
This decision illustrates the practical operation of the Land and Environment Court’s conciliation conference process as a vehicle for resolving residential development disputes efficiently. By confining the Commissioner’s role to a jurisdictional check rather than a full merits hearing, the s 34 mechanism allows parties who reach agreement — often after expert conferencing — to obtain binding consent orders without the cost and delay of contested proceedings. For practitioners, the case reinforces that once an agreement is reached under s 34, the Court has no discretion to re-examine planning merits: the sole question is whether the agreed outcome is lawfully within the Court’s power.
For developers and councils in New South Wales, the decision also highlights the importance of proactively engaging expert reports on technical matters such as flooding, stormwater, biodiversity, and sustainability early in the appeal process. Resolving those technical issues through expert conferencing can clear the path to an agreed outcome, converting a contested refusal into a consent without a full hearing.