Background
Liv Developments appealed the deemed refusal of DA2026/0004, concerning alterations and additions to an approved residential flat building at 18–20 Peake Parade and 2 Pearce Avenue, Peakhurst. The amended proposal also sought approval for the use of an unauthorised excavation and shoring wall.
The parties attended a Court conciliation conference and later filed a signed agreement. The Council had agreed to amendments to the application, including the revised development description.
The Court’s Holding
Acting Commissioner Miller upheld the appeal and granted development consent for the amended proposal, subject to conditions in Annexure A. The Court was satisfied that the agreed outcome was one it could lawfully make under s 34(3) of the Land and Environment Court Act 1979 (NSW).
The Court accepted that the relevant jurisdictional requirements were met, including the proposed height variation under clause 4.6 of the Georges River Local Environmental Plan 2021. It noted that the proposal exceeded the applicable height standard but complied with the affordable-housing-adjusted floor-space-ratio limit. The Court did not undertake a merits assessment of the discretionary matters under s 4.15 of the Environmental Planning and Assessment Act 1979 (NSW).
Key Takeaways
- A Class 1 planning appeal may be resolved through a s 34 conciliation agreement where the Court is satisfied it could lawfully make the agreed decision.
- The Court granted consent for use of the unauthorised excavation and shoring wall and for the amended residential-flat-building works.
- Liv Developments was ordered to pay the Council $14,000 in costs thrown away by the application amendment.
Why It Matters
The decision illustrates the limited role of the Court when giving effect to a negotiated s 34 outcome: it must verify that the statutory jurisdictional preconditions are met, but need not independently conduct the full discretionary merits assessment otherwise required for a development application.
It also shows that an affordable-housing development may rely on applicable planning bonuses while separately seeking a well-founded variation for a remaining height non-compliance.