Background
Pmando Holdings Pty Ltd appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) against Liverpool City Council’s refusal of Development Application DA-561/2024. The application concerned 16-18 Orient Road, Greendale, and proposed demolishing former fish-farm tanks, constructing a landscape-material supply facility and associated infrastructure, using an existing warehouse for landscape supplies, and using an existing caretaker’s flat and office.
Following a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW), the parties agreed on terms that would uphold the appeal and approve the amended application subject to conditions. Before making consent orders, the Court had to determine whether the agreed decision was one it could lawfully make and whether all jurisdictional prerequisites had been satisfied.
The Court’s Holding
The Court found that it had power to grant consent. The proposed uses were permissible with consent in the RU1 Primary Production zone, and demolition was permissible under the Liverpool Local Environmental Plan 2008. The Court was also satisfied, on the parties’ agreed jurisdictional statement, technical reports, and proposed conditions, that the relevant requirements concerning site contamination, water quality, aquatic ecology, recreation and public access had been addressed.
The biodiversity assessment showed that clearing land on the Biodiversity Values Map triggered entry into the biodiversity offsets scheme, but it quantified the residual impacts after avoidance and mitigation measures. The Court accepted that the applicable biodiversity legislation had been considered and satisfied, and noted that three objecting submissions had received due consideration, with additional conditions imposed in response.
Because the agreed outcome was one the Court could make in the proper exercise of its functions, s 34(3) required the Court to give effect to it. The Court granted leave to rely on amended plans and documents, upheld the appeal, and approved the amended development application subject to the conditions in Annexure A. It expressly made no merits assessment of the issues originally disputed between the parties.
Key Takeaways
- In a s 34 conciliation, the Court must confirm that the parties’ agreed decision is legally available and that jurisdictional prerequisites to consent have been met.
- The inquiry is whether the Court could make the agreed decision, not whether it would or should have reached that outcome after a contested merits hearing.
- Technical reports, agreed conditions, biodiversity-offset requirements, and consideration of public objections supported the Court’s power to approve the amended proposal.
Why It Matters
The decision illustrates the judicial scrutiny applied to agreed outcomes in New South Wales planning appeals. Even where the developer and council settle, the Court must independently identify and address statutory preconditions before granting development consent.
It also underscores the limited nature of a consent judgment following conciliation: the Court verified that the approval was legally available but did not resolve the parties’ former merits disputes or endorse the proposal through a full merits assessment.