Background
Lloyd Building and Development Pty Ltd appealed the refusal by Sutherland Shire Council of Development Application DA25/0744 for demolition of existing structures, construction of a dual occupancy development, tree removal, and one swimming pool with strata subdivision at 145 Nicholson Parade, Cronulla (Lot 5 DP 5761). The appeal was brought under section 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW).
Pursuant to section 34AA(2)(a) of the Land and Environment Court Act 1979 (NSW), the Court arranged a conciliation conference held on 7 July 2026 before Acting Commissioner Miller AC. At the conciliation, the parties reached agreement on the terms of a decision that would be acceptable to both.
The applicant modified its proposal to address the Council’s concerns: revising driveway arrangements to protect a significant front tree, altering construction methodology and deleting the proposed pool to preserve trees on-site and within adjacent properties, and adding a deferred commencement condition requiring a drainage easement.
The Court’s Holding
The Court upheld the appeal and granted development consent subject to conditions. Under section 34(3) of the Land and Environment Court Act 1979 (NSW), the Commissioner disposed of the proceedings in accordance with the parties’ agreed decision, finding it a decision the Court could properly make in the exercise of its functions.
The Court examined the amended application against all applicable planning instruments and found compliance with: the Sutherland Shire Local Environmental Plan 2015 (dual occupancy permitted in C4 zone; site area of 869.7 m² satisfies minimum 700 m² for dual occupancies; maximum building height 8.46m complies with 8.5m limit; FSR of 0.499:1 complies with 0.5:1 limit); the State Environmental Planning Policy (Resilience and Hazards) 2021 (littoral rainforest proximity requirements satisfied through proposed siting and tree protection); the State Environmental Planning Policy (Sustainable Buildings) 2022 (BASIX Certificate submitted); and all other applicable regulations including stormwater management, biodiversity protection, landscape requirements, and acid sulfate soil provisions.
The Commissioner noted that the parties had demonstrated agreement was based on comprehensive consideration of environmental matters including terrestrial biodiversity, tree protection measures, on-site stormwater detention, drainage design, and replacement planting.
Key Takeaways
- Conciliation conferences under the Land and Environment Court Act can resolve development disputes by enabling parties to negotiate modifications that address legitimate planning concerns.
- Dual occupancy developments in C4 Environmental Living zones require careful consideration of environmental factors, particularly tree and biodiversity protection, but can obtain approval when appropriate protections are incorporated.
- Modifications to applications—such as revised site layout, construction methods, and deferred conditions requiring easements—can transform refusals into approvals when they genuinely address the consent authority’s concerns.
- Courts will grant development consent pursuant to agreed decisions between parties when all jurisdictional requirements and applicable planning instruments are satisfied.
Why It Matters
This judgment illustrates the practical value of mandatory conciliation in development disputes. Rather than proceeding to contested hearings, the parties negotiated modifications that protected environmental values while allowing the development to proceed, demonstrating how negotiated outcomes can achieve both conservation and development objectives.
The decision confirms that applications initially refused can be revived through substantive amendments addressing specific environmental and planning concerns. For developers and councils alike, it reinforces that strategic redesign—particularly regarding tree protection and drainage—can be determinative in securing approval for dual occupancy projects in environmentally sensitive residential zones.