Background
JS Architects Pty Ltd appealed Cumberland Council’s refusal of DA2025/0720, which sought to demolish existing structures at 521 Merrylands Road, Merrylands and construct semi-detached dwellings with Torrens title subdivision into two lots. The 536.3m² site is in the R2 Low Density Residential zone, where the proposed use is permissible with consent.
The application had been publicly notified without receiving submissions and was refused under delegated authority on 15 April 2026. Before a conciliation conference, the parties agreed on an amended proposal, including increased private open space for one dwelling, a lower level for the other dwelling, and an updated request to depart from the applicable 550m² minimum lot-size standard.
The Court’s Holding
Commissioner Targett upheld the appeal and granted consent to the amended development application, subject to the conditions in Annexure A. Under s 34(3) of the Land and Environment Court Act 1979 (NSW), the Commissioner was satisfied that the parties’ agreed outcome was one the Court could make in the proper exercise of its functions.
The Court accepted that the clause 4.6 request adequately justified the 13.7m² shortfall from the 550m² lot-size standard: strict compliance was unreasonable or unnecessary, and sufficient environmental planning grounds supported the variation. It also accepted the parties’ treatment of relevant planning, stormwater, biodiversity, road-noise, essential-services, salinity and urban-heat matters.
Key Takeaways
- A Class 1 appeal may be resolved through a conciliation agreement if the agreed decision is legally available to the Court.
- A justified clause 4.6 request can support consent despite non-compliance with a minimum lot-size standard.
- The Court expressly made no independent merit assessment of the issues originally disputed by the parties.
Why It Matters
The decision illustrates the practical role of conciliation in NSW planning appeals: amended plans and agreed conditions can convert a refused application into a consentable proposal. It also confirms that a negotiated outcome still requires the Court to be satisfied of its jurisdiction and the legal basis for any development-standard variation.