Background
Lindfield Project Pty Ltd appealed Ku-ring-gai Council’s deemed and subsequent refusal of Development Application eDA0219/25 under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW). The application concerned demolition and lot amalgamation at 24 and 26 Russell Avenue, Lindfield, followed by construction of a residential flat building with 45 apartments, basement parking for 76 vehicles, civil works and landscaping.
After an earlier conciliation did not resolve the dispute, the hearing commenced on 17 September 2026. The parties then agreed on amended plans, including changes to setbacks, elevations, landscaping and unit layouts, and formalised their agreement at a further conciliation conference.
The Court’s Holding
Commissioner Washington held that the parties’ agreed outcome was one the Court could make in the proper exercise of its functions. Under s 34(3) of the Land and Environment Court Act 1979 (NSW), the Court was therefore required to dispose of the proceedings in accordance with that agreement.
The Court upheld the appeal and granted consent subject to conditions. It accepted that the amended proposal met the applicable planning requirements, including requirements concerning affordable housing, design, parking, heritage impacts, stormwater, flooding and BASIX. The Court also accepted the applicant’s clause 4.6 request to vary the applicable height standard: the development’s 28.556 m height exceeded the 28.6 m affordable-housing-bonus standard by 1.526 m, or 5.34%.
The applicant was ordered to pay the Council $35,000 for costs thrown away by the amendments, inclusive of costs thrown away in a notice of motion granted on 1 July 2026.
Key Takeaways
- A conciliated Class 1 planning appeal must be determined in accordance with the parties’ agreement if the Court could properly make that decision.
- The Court approved the amended 45-apartment project subject to conditions.
- The affordable-housing component supported applicable Housing SEPP concessions, while the remaining height exceedance was justified through a clause 4.6 variation.
Why It Matters
The decision illustrates the Land and Environment Court’s role in giving effect to a negotiated planning outcome after independently confirming that the statutory prerequisites for development consent are met. It also shows that amended development proposals may attract costs consequences even where the appeal is ultimately upheld.