Background
Arushan Thiyagalingam appealed Inner West Council’s refusal of Development Application No DA/2024/0843 for a new three-storey dwelling house with swimming pool and landscaping at 94E Elliott Street Balmain NSW 2041 (a 219.3 square metre lot zoned R1 General Residential). The DA was lodged on 3 October 2024 and formally refused on 29 June 2025. Thiyagalingam filed a Class 1 Application in the Land and Environment Court on 13 November 2025.
The Court arranged a mediation conference under the Civil Procedure Act 2005 (NSW) on 28 April 2026, followed by a conciliation conference under the Land and Environment Court Act 1979 (NSW) on 5 May 2026. Both were presided over by Acting Commissioner Starr. At the conciliation conference, the parties reached agreement on the terms of a decision acceptable to both.
The Court’s Holding
The Court upheld the appeal and determined the application by granting development consent, subject to conditions set out in Annexure A. Under s 34(3) of the Land and Environment Court Act 1979 (NSW), the Court was bound to dispose of the proceedings in accordance with the parties’ agreed decision, provided it was a decision the Court could have properly made. Acting Commissioner Starr found that the agreed position satisfied all jurisdictional requirements and was a proper exercise of the Court’s functions.
The amended application satisfied multiple planning requirements: it complied with the Inner West Local Environmental Plan 2022’s landscaping requirement (17% landscaped area versus 15% minimum), site coverage standard (53% versus 60% maximum), and floor space ratio (0.78:1 versus 0.9:1 maximum). Vegetation removal complied with the State Environmental Planning Policy (Biodiversity and Conservation) 2021 through removal of 7 unsuitable trees with replacement plantings and relocation of 5 suitable trees within the site. Stormwater management plans satisfied the water management requirements, and the site was found suitable for development despite historical residential use and acid sulfate soil classification. Heritage impacts on the nearby “Braeside” heritage item and Iron Cove Heritage Conservation Area were agreed to be acceptable.
Key Takeaways
- Conciliation conferences in the Land and Environment Court can resolve contested development applications through party agreement where the agreed decision falls within the Court’s proper exercise of functions
- Comprehensive environmental and heritage assessment is mandatory for residential development in heritage areas, covering vegetation management, water retention, contamination risk, and conservation impacts
- Modest-sized residential lots in R1 zones may satisfy development standards through careful site planning, even in heritage conservation areas
- Environmental planning legislation operates across multiple overlapping layers—local environmental plans, state planning policies, development control plans, and biodiversity requirements—all must be satisfied
Why It Matters
This decision illustrates how the Land and Environment Court uses conciliation to resolve development disputes that might otherwise proceed to contested hearings. The Court’s role in reviewing agreed decisions is confined to ensuring the agreement represents a decision it could have properly made—a narrow gate that respects party autonomy while maintaining jurisdictional oversight.
For practitioners advising on residential development in Sydney’s inner-west heritage areas, the judgment demonstrates the cumulative compliance burden: applicants must navigate zoning provisions, site coverage and FSR requirements, landscaping standards, vegetation preservation obligations, stormwater management requirements, heritage considerations, and contamination assessments. The systematic satisfaction of each requirement—here achieved through iterative amendments culminating in conciliation—is essential for successful development approval in such areas.