Background
SPT 1 Pty Ltd appealed the Hills Shire Council’s refusal of its development application for 75 Windsor Road, Kellyville. The proposal was for an integrated housing development and Torrens title subdivision: 10 residential lots, 10 two-storey dwelling houses, an extension of Exbury Road ending in a cul-de-sac, driveways, retaining works, fencing and associated tree removal.
After the appeal was filed, the parties attended a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW). They later agreed to amended plans, including changes to the shared battle-axe access for Lots 3 and 4, stormwater works, landscaping, tree removal and environmental-certification material. The Council agreed that the amended application could be approved subject to conditions.
The Court’s Holding
Acting Commissioner Kullen upheld the appeal and granted development consent for the amended proposal, subject to the conditions in Annexure A. The Court held that the parties’ agreed outcome was one the Court could make in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act.
The Court was satisfied that the relevant jurisdictional prerequisites for consent under the Environmental Planning and Assessment Act 1979 (NSW) had been met, including requirements concerning notification, contamination remediation, BASIX documentation, biodiversity and stormwater matters, and the applicable R3 Medium Density Residential zone. It did not conduct a merits assessment of the issues originally disputed, because the matter was resolved through the statutory conciliation process. SPT 1 was also ordered to pay the Council $12,000 in agreed thrown-away costs caused by the amendment.
Key Takeaways
- A Class 1 development appeal may be resolved through a s 34 conciliation agreement where the agreed decision is one the Court could lawfully make.
- The Court granted consent for the amended 10-lot, 10-dwelling Kellyville development subject to detailed conditions.
- Amending a development application during proceedings can result in an order for the applicant to pay the consent authority’s thrown-away costs.
Why It Matters
The decision illustrates the practical operation of conciliation in NSW planning appeals: once parties agree on amended plans and conditions, the Court’s task is to confirm that statutory prerequisites are met and that the agreed decision is within its power.
It also shows that agreement does not eliminate planning compliance requirements. The amended proposal still required satisfaction on matters including contamination, biodiversity, stormwater, road access and residential-development controls.