Background
Tony Sukkar appealed to the Land and Environment Court from Inner West Council’s deemed refusal of DA/2025/1038 for alterations and additions to an approved residential flat building at 314 Liverpool Road, Ashfield. The amended proposal included a new Level 4, six additional dwellings, rooftop communal open space, and an increase in affordable housing from seven to 13 units.
The matter proceeded as a Class 1 appeal. At conciliation conferences held in May 2026, the parties reached a negotiated outcome recorded in a s 34 agreement. The amended scheme reduced its bulk and scale by deleting a Level 3 unit and increasing Level 4 side setbacks.
The Court’s Holding
Acting Commissioner Bilmon 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 1979 (NSW). The Court therefore granted leave for the amended application to be filed, upheld the appeal, and granted development consent subject to conditions.
The Commissioner accepted that relevant jurisdictional requirements had been met, including those relating to existing use rights, infill affordable housing, BASIX, height, floor space ratio, heritage and flood planning. Although the proposed height exceeded the affordable-housing-adjusted height limit, the Court found the cl 4.6 request adequately justified the departure. The Court expressly did not undertake a merits assessment of the discretionary matters under s 4.15 of the Environmental Planning and Assessment Act 1979 (NSW).
Key Takeaways
- A Court must give effect to a valid s 34 conciliation agreement if it could lawfully make the agreed decision.
- The approved scheme provides 13 affordable housing units, comprising 14.92% of the development.
- The applicant was ordered to pay the Council $4,000 in agreed thrown-away costs.
Why It Matters
The decision illustrates the practical effect of a negotiated planning outcome in a Class 1 appeal: once the Court is satisfied that the legal preconditions are met, it may make the agreed consent orders without independently determining the development’s discretionary planning merits.
It also shows how the Housing SEPP’s affordable-housing incentives may affect development standards, while a separate cl 4.6 justification may still be required where a proposal exceeds the adjusted height limit.