Background
Germaine Nehme appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) from Canterbury-Bankstown Council’s refusal of DA-1414/2025. The application concerned demolition of the existing structures at 2 Lovat Avenue, Earlwood, and construction of a two-storey dwelling over a one-level basement, with a swimming pool, outbuilding, landscaping and associated works.
The proposal was amended before a Court-convened conciliation conference held on 17 July 2026. One submission had been made during notification, but the submitter made no further submission after being notified of the amended Rev E plans. At conciliation, the parties agreed that the amended plans and proposed conditions resolved all contentions.
The Court’s Holding
Commissioner Espinosa upheld the appeal and granted development consent for the amended proposal, subject to the conditions in Annexure A. Under s 34(3) of the Land and Environment Court Act 1979 (NSW), the Court was required to give effect to the parties’ agreement if it was a decision the Court could properly make.
The Court held that the relevant jurisdictional prerequisites were satisfied. The dwelling was permitted in the R2 Low Density Residential zone; the proposed 0.45:1 floor-space ratio complied with the applicable standard; flood-planning requirements were met; and the site was suitable for continued residential use. The Court also accepted the clause 4.6 request for the 9.06-metre building height, a 6.588% departure from the 8.5-metre standard, because the limited parapet exceedance resulted from the land slope and historic rear excavation, while the proposal achieved the height standard’s objectives and had sufficient environmental planning grounds.
Key Takeaways
- A Class 1 appeal may be resolved through conciliation where the agreed outcome is one the Court could lawfully make.
- The Court approved a limited building-height variation supported by a clause 4.6 request.
- The Court did not undertake a merits assessment of the formerly disputed issues; it gave effect to the parties’ agreed decision under s 34(3).
Why It Matters
The decision illustrates the practical operation of the Land and Environment Court’s conciliation process in residential development appeals. Once the parties resolved the contentions through amended plans and conditions, the Court focused on whether the agreed consent met the statutory prerequisites.
It also shows that a modest height-standard departure can be approved where the written variation adequately addresses the planning objectives and provides site-specific environmental planning grounds.