Background
Aaron Ly appealed Fairfield City Council’s refusal of DA 36.1/2026. The application sought demolition of existing structures and construction of a two-storey dwelling with associated works at 9 Cook Avenue, Canley Vale.
The proceedings were brought in the Court’s Class 1 jurisdiction under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW). At a conciliation conference on 7 September 2026, the parties agreed on acceptable terms, including amendments to the application approved by the Council under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW).
The Court’s Holding
Commissioner Washington upheld the appeal and granted consent to the amended development application, subject to the conditions in Annexure A. The matter resolved at conciliation and did not proceed to a contested hearing.
The Commissioner was satisfied that the 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 accepted that the proposal was permissible in the R2 Low Density Residential zone, complied with applicable height and floor-space-ratio standards, and met relevant flood-planning, biodiversity, earthworks, contamination, water-management and BASIX requirements.
Key Takeaways
- A Class 1 development appeal may be resolved by conciliation where the parties reach an outcome the Court has power to make.
- The Court approved the amended dwelling proposal after accepting that it met the relevant planning controls and flood-related requirements.
- The appeal resulted in development consent, subject to conditions, rather than a remittal to the Council.
Why It Matters
The decision illustrates the operation of the Land and Environment Court’s conciliation process in a residential development appeal. Once the jurisdictional requirements were established, s 34(3) required the Court to dispose of the case in accordance with the parties’ agreed decision.
It also shows that amendments made during an appeal can address a council’s contentions and support consent where the revised proposal satisfies the applicable statutory and planning controls.