Background
Robert Lawrence Walter Lippiatt sought approval to construct an elevated driveway across an unsealed portion of the Central Avenue road reserve and a hardstand parking area at 14 Central Avenue, Como. The proposal would extend the upper sealed roadway to the property through a single-lane driveway with a guardrail. Sutherland Shire Council refused the development application on 15 April 2025, and Lippiatt appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW). The amended proceedings also sought consent under s 138 of the Roads Act 1993 (NSW) for works on the public road.
At a court-arranged conciliation conference on 16 July 2026, the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979 (NSW). The agreement followed Council approval of amendments supplying updated landscaping, structural engineering, geotechnical and costing materials, as well as a pedestrian and construction traffic-management plan.
The Court’s Holding
Commissioner Gray was satisfied that the parties’ agreed decision was one the Court could lawfully make in the proper exercise of its functions. The Court considered the jurisdictional statement and supporting materials, found the applicable statutory prerequisites satisfied, and concluded that no jurisdictional constraint prevented the agreed orders. Relevant considerations included permissibility in the C3 Environmental Management zone, earthworks, stormwater, coastal and catchment impacts, landscaping, urban design, public submissions and the lawfulness of the consent conditions.
The Court upheld the appeal and granted development consent for the amended driveway and hardstand proposal, subject to the conditions in Annexure A. It also granted consent under s 138 of the Roads Act for works in the road reserve, subject to Annexure B. Because the orders implemented a conciliation agreement, the Commissioner expressly made no evaluative judgment on the issues originally disputed or on the proposal’s merits under the discretionary considerations in s 4.15 of the Environmental Planning and Assessment Act.
Key Takeaways
- A Class 1 planning appeal may be resolved through a binding conciliation agreement when the Court is satisfied that the agreed decision is within its lawful powers.
- The Court approved both the amended development application and the associated road-reserve works, subject to separate sets of conditions.
- The judgment confirms the legality and jurisdictional basis of the agreed outcome; it is not a merits determination of the parties’ original disputes.
Why It Matters
The decision illustrates how amendments and expert materials developed during a planning appeal can support a negotiated approval for development involving both private land and a public road reserve. It also underscores the limited judicial task under s 34(3): the Court must ensure that the agreed result is legally available, but need not independently resolve the contested merits.