Background
Joseph Gregory Shina and Mary Shina applied to Canterbury Bankstown Council for development consent to demolish existing structures and construct a new two-storey residence with basement parking, a cabana, and a front fence at 67 Linda Street, Belfield NSW 2191 (DA-1404/2025). The Council refused the application, prompting the applicants to lodge a Class 1 appeal in the Land and Environment Court of New South Wales under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW).
The site is zoned R3 Medium Density Residential under the Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP). Dwelling houses are permissible with consent in that zone, and the proposed development was required to satisfy a range of standards, including height of buildings (8.5 m), floor space ratio (0.55:1), earthworks, stormwater drainage, essential services, site contamination, and embodied emissions requirements under applicable state environmental planning policies.
Prior to the conciliation conference convened by Commissioner Horton on 19 June 2026, the parties reached an in-principle agreement on the matters in contention, based on amendments to the development application. A signed agreement was filed with the Court on 18 June 2026 in accordance with s 34(10) of the Land and Environment Court Act 1979 (NSW).
The Court’s Holding
Commissioner Horton upheld the appeal and granted development consent for DA-1404/2025, subject to conditions set out in Annexure A. Pursuant to s 34(3) of the Land and Environment Court Act 1979 (NSW), the Commissioner was required to dispose of the proceedings in accordance with the parties’ agreed decision, provided that decision was one the Court could have made in the proper exercise of its functions.
The Commissioner verified the jurisdictional prerequisites for granting consent under s 4.16 of the EPA Act. The proposed development was found to comply with the CBLEP height and FSR standards, to adequately address earthworks considerations (supported by a geotechnical assessment), and to satisfy stormwater management requirements through a 1,500 L rainwater tank, a basement pump-out tank of 3.33 m³, and permeable surfaces covering 36% of the site area. The site was confirmed as uncontaminated and suitable for residential use, and a BASIX certificate quantifying embodied emissions was accepted as satisfying the State Environmental Planning Policy (Sustainable Buildings) 2022.
The Commissioner noted that, consistent with the conciliation process, no merit assessment of the originally disputed issues was undertaken. Consent was granted on the basis of amended architectural, stormwater, and civil engineering plans filed in June 2026.
Key Takeaways
- Where parties to a Class 1 appeal reach agreement at or before a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW), the Commissioner must give effect to that agreement if it represents a decision the Court could lawfully have made — no independent merit assessment is required.
- Compliance with the CBLEP’s height, FSR, earthworks, stormwater, essential services, and contamination provisions, together with a valid BASIX certificate addressing embodied emissions, satisfied all jurisdictional prerequisites for the grant of development consent.
- Amending a development application during appeal proceedings — with the consent authority’s approval under s 38 of the EPA Regulation — is a practical mechanism for resolving planning disputes without a contested hearing.
Why It Matters
This decision is a routine but instructive example of how Class 1 development appeals in New South Wales are frequently resolved through the Land and Environment Court’s conciliation process. It illustrates the Court’s gatekeeping role: even where parties agree, the Commissioner must independently confirm that the agreed outcome is legally open to the Court before giving it effect, including satisfaction of all applicable planning instrument requirements.
For practitioners and applicants, the case reinforces the value of pre-conference engagement and amendment of development applications as a cost-efficient path to consent, and highlights the technical compliance checklist — particularly stormwater management and BASIX embodied-emissions quantification — that must be satisfied for residential development under the current Canterbury-Bankstown and state planning frameworks.