Background
Mackenzie Architects International Pty Ltd applied to demolish existing dwellings at 2 Forsyth Street, Killara, and build seven townhouses with basement parking and landscaping. The site is in an R2 Low Density Residential zone and within walking distance of Gordon Railway Station.
After the application was not determined, Mackenzie appealed its deemed refusal. Ku-ring-gai Local Planning Panel later refused the application on the Council’s behalf. Before a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW), the parties reached agreement on an amended proposal.
The Court’s Holding
Commissioner Horton held that the parties’ agreed outcome was one the Court could make in the proper exercise of its functions. The amended development was permissible under the Housing SEPP provisions applying to low and mid-rise housing in an R2 zone, and the relevant planning prerequisites were satisfied.
The Court upheld the appeal and granted consent to the amended development application, subject to agreed conditions. It also ordered Mackenzie to pay the Council $24,600 in agreed costs thrown away by the amendment, within 28 days. The Commissioner expressly did not make a merit assessment of the issues originally in dispute.
Key Takeaways
- A Class 1 appeal may be resolved through a s 34 conciliation agreement where the agreed decision is legally available to the Court.
- The Housing SEPP permitted the townhouse proposal despite the R2 zone, because the site was within the applicable low and mid-rise housing area.
- Consent was granted subject to conditions, while the applicant bore agreed amendment-related costs.
Why It Matters
The decision illustrates the Land and Environment Court’s role in giving effect to a negotiated planning outcome after confirming that statutory and planning-instrument requirements are met. It is not a merits ruling on the parties’ original disputed issues.