Background
Satmell Holdings appealed against Blacktown City Council’s deemed refusal of its application to modify Development Consent SPP-17-00012 for a residential flat building and townhouse development at 876 Windsor Road, Rouse Hill. The original consent had been granted by the Land and Environment Court in 2019 and remained valid until 5 December 2026.
The amended modification application concerned the townhouse component only. It proposed, among other matters, reducing the number of townhouses from 87 to 86, increasing gross floor area and floor-space ratio, altering townhouse heights and facades, converting most two-bedroom townhouses to three-bedroom dwellings, adding internal lifts to some types, increasing residential parking, changing site coverage and landscaping, and revising stormwater arrangements.
The matter was relisted from a hearing to a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW). At the conference, the parties agreed that the modifications should be approved subject to conditions.
The Court’s Holding
Acting Commissioner Miller upheld the appeal and modified the 2019 development consent in the terms set out in Annexure A, with the resulting modified consent in Annexure B. The Court gave effect to the parties’ agreed decision under s 34(3) of the Land and Environment Court Act.
The Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions. In particular, the development as modified was substantially the same as the development originally approved, as required by s 4.56 of the Environmental Planning and Assessment Act 1979 (NSW).
The Court accepted that relevant matters under ss 4.56 and 4.15(1) of the Act had been considered. It stressed, however, that in making consent orders under the conciliation provisions it had not undertaken its own merits assessment of the discretionary planning issues.
Key Takeaways
- A deemed-refusal appeal can be resolved through a s 34 conciliation agreement where the resulting decision is one the Court could lawfully make.
- The “substantially the same development” requirement was satisfied despite changes to townhouse numbers, layouts, bedrooms, parking, scale, finishes and stormwater works.
- When approving a conciliated outcome, the Court may give effect to the parties’ decision without independently deciding the discretionary merits of the modification application.
Why It Matters
The decision illustrates the role of conciliation in NSW development litigation: once parties reach agreement, the Court’s task is to confirm that the agreed outcome falls within its statutory power, including the requirement that the modified development remain substantially the same as that originally approved.
For developers and consent authorities, it also shows that a substantial package of design and operational changes to one component of an approved mixed residential project may be dealt with by modification, provided the development retains the essential character of the original approval.