Background
Pertinax (Aust) Pty Ltd appealed the deemed refusal of its development application for a two-storey centre-based childcare facility at 1 Debenham Road South, West Gosford. The original proposal was for 108 places; following a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW), the parties agreed to amended plans for a 103-place facility, revised parking, waste arrangements and play areas.
The site is partly zoned E3 Productivity Support and partly E4 General Industrial under the Central Coast Local Environmental Plan 2022. The proposal was integrated development because it required a bush fire safety authority. The NSW Rural Fire Service had issued general terms of approval and a bush fire safety authority.
The Court’s Holding
Commissioner Targett held that the parties’ agreed outcome was one the Court could make in the proper exercise of its functions. Under s 34(3), the Court was therefore required to dispose of the appeal in accordance with that agreement.
The Court granted consent to the amended DA, subject to conditions. It accepted that contamination, bushfire, traffic, noise, childcare-space and essential-services requirements had been addressed. It also accepted a clause 4.6 variation to the 8.5-metre height standard applying to the E3 portion of the land: the proposed maximum height was 10.2 metres, but the non-compliance arose from the site’s topography and was found to be minor, localised and environmentally acceptable.
The Court expressly noted that, in making consent orders reflecting the conciliated agreement, it had not undertaken a merits assessment of the issues originally disputed. It ordered Pertinax to pay the Council $8,000 in costs thrown away within 28 days.
Key Takeaways
- A Class 1 planning appeal resolved by conciliation must be determined in accordance with the parties’ agreement if it is an outcome the Court could lawfully make.
- The Court approved the amended 103-place childcare facility subject to conditions, including bushfire and contamination-related requirements.
- A height-standard variation was accepted where site topography justified the departure and strict compliance would not improve the planning outcome.
Why It Matters
The decision illustrates the Land and Environment Court’s role in giving effect to lawful conciliated outcomes in development appeals. Its function at that stage is not to revisit every contested planning merit, but to confirm that the agreed consent is within power and can properly be made.
For proponents, the case also shows how amendments made during conciliation—supported by specialist reports, agency approvals and conditions—can resolve a deemed-refusal appeal, while potentially attracting costs thrown away for the changes.