Background
PR Investors appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) after the Penrith Local Planning Panel refused DA24/0754. The amended proposal was for demolition, tree removal, and a centre-based childcare facility at 110 Explorers Way, St Clair, with basement parking, signage and associated works.
The parties held conciliation conferences under s 34 of the Land and Environment Court Act 1979 (NSW). Following further plans, reports and agreed conditions, they filed a signed agreement and jurisdictional statement supporting consent to the amended proposal.
The Court’s Holding
Acting Commissioner Swan upheld the appeal and granted development consent, subject to the conditions in Annexure A, for a childcare centre for 184 children. The Court also ordered the applicant to pay the Council $7,000 within 28 days for costs thrown away by the amendment to the development application.
The Commissioner was satisfied that the parties’ agreement met the requirements for a s 34 disposition: the parties had agreed on the outcome, and the outcome was one the Court could properly make. The Court accepted that relevant jurisdictional matters, including biodiversity, zoning, site suitability, childcare-space requirements, traffic, stormwater, signage and airport-buffer controls, had been addressed.
The Court emphasised that, in making consent orders under s 34, it did not make an evaluative judgment on the issues originally disputed or conduct a merits assessment of the amended application under s 4.15.
Key Takeaways
- A Class 1 planning appeal may be resolved by conciliation where the agreed outcome is one the Court could lawfully make.
- The Court granted consent to the amended 184-place childcare proposal subject to detailed conditions.
- Amending a development application during the appeal can result in a costs order for the other party’s wasted costs.
Why It Matters
The decision illustrates the Land and Environment Court’s s 34 conciliation process: parties can settle a development appeal, but the Court must independently be satisfied that the agreed consent is within its lawful power.
It also shows that an agreed outcome does not involve a fresh merits determination by the Commissioner where the statutory preconditions for consent orders are met.