Background
Lanevick Pty Ltd sought development consent from Ku-ring-gai Council to demolish an existing building at 3 Lamond Drive, Turramurra and construct a multi-storey residential flat building with shared parking, tree removal, earthworks, and stormwater infrastructure. The Council’s local planning panel ultimately refused the application (eDA0408/25), following an initial deemed refusal, prompting Lanevick 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 Court convened a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) on 5 March 2026, presided over by Commissioner Porter. During the conciliation process, Lanevick amended its development application, submitting revised architectural, landscape, stormwater, and supporting documentation prepared predominantly in May and June 2026. On 5 June 2026, the parties reached a written agreement under s 34 on the terms of a decision acceptable to both sides, which included upholding the appeal and granting consent subject to conditions.
The site is zoned R4 High Density Residential under the Ku-ring-gai Local Environmental Plan 2012, making a residential flat building permissible with consent. The proposal required assessment against a range of State Environmental Planning Policies (covering housing, biodiversity and conservation, sustainable buildings, resilience and hazards, and transport and infrastructure), as well as various provisions of the local environmental plan. The amended design incorporated biodiversity offset measures, BASIX sustainability compliance, and a clause 4.6 variation request to address the building’s storey count, which exceeded the standard maximum at certain points due to the steeply sloping topography of the site.
The Court’s Holding
Commissioner Porter upheld the appeal and granted development consent for the amended application, subject to the conditions in Annexure A. Acting under s 34(3) of the Land and Environment Court Act 1979, the Commissioner was required to dispose of the proceedings in accordance with the parties’ agreed decision, provided that decision was one the Court could have made in the proper exercise of its functions. Applying McMillan v Taylor (2023) 111 NSWLR 634 and Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86, the Commissioner confirmed that the jurisdictional check does not require a merits assessment — only satisfaction that no jurisdictional constraint precludes the agreed order.
The Commissioner carried out the required jurisdictional review and was satisfied that the amended DA met all relevant prerequisites: owner’s consent was in order; community notification had been properly conducted; a Biodiversity Development Assessment Report (BDAR) accompanied the application and satisfied the Biodiversity Conservation Act 2016; and the proposal complied with applicable SEPPs covering biodiversity and conservation, sustainable buildings, housing, resilience and hazards, and transport and infrastructure. Key KLEP 2012 clauses relating to acid sulfate soils, earthworks, biodiversity protection, and stormwater were also found to be satisfied or not applicable. A clause 4.6 variation request for the storey exceedance was accepted (other than the Housing SEPP reasons) on the basis it met the requisite tests in cl 4.6(3)(a) and (b).
The Court also ordered that Lanevick pay Ku-ring-gai Council’s costs thrown away by reason of the amendment to the development application, pursuant to s 8.15(3) of the EPA Act, reflecting the consequence of the applicant having amended the DA during the course of the appeal proceedings.
Key Takeaways
- Under s 34(3) of the Land and Environment Court Act 1979, once parties reach a conciliation agreement the Court must give effect to it — without conducting a merits review — so long as no jurisdictional constraint prevents the agreed order.
- A clause 4.6 variation to exceed the maximum storey standard can be justified by site-specific factors such as steeply sloping topography, even where the Housing SEPP reasons are not accepted, provided the written request satisfies cl 4.6(3)(a) and (b) of the relevant LEP.
- Applicants who amend their development application during an appeal may be ordered to pay the respondent council’s wasted costs attributable to that amendment under s 8.15(3) of the EPA Act, even where the appeal is ultimately upheld in their favour.
- Proximity to a designated centre (here, 256 m walking distance from Turramurra Centre) is determinative of whether the low and mid-rise housing inner area provisions of the Housing SEPP apply, triggering a more permissive height and FSR regime.
Why It Matters
This decision is a routine but illustrative example of how the Land and Environment Court’s conciliation process operates in residential development appeals in New South Wales. It demonstrates that the s 34 agreement mechanism allows parties to resolve planning disputes efficiently — including disputes involving complex multi-policy assessments — without the Court needing to adjudicate on the merits, so long as the Commissioner confirms the basic jurisdictional prerequisites are met.
For developers and councils in the greater Sydney region, the case is a practical reminder of two strategic considerations: first, that amending a development application during appeal proceedings carries a costs consequence; and second, that careful site-specific justification for development standard variations (particularly storey height in sloping terrain) can support a clause 4.6 request even where not all statutory reasons advanced are accepted by the Court.