Background
Touma Family Super Fund Pty Limited, the applicant, initiated proceedings in Class 1 of the Land and Environment Court of New South Wales, appealing the City of Parramatta Council’s refusal of Development Application DA/628/2024. The proposed development involved the demolition of existing structures and the Torrens title subdivision of one lot into eight residential lots at 21A Tucks Road, Toongabbie.
In an effort to resolve the dispute, the Court arranged a conciliation conference between the parties under section 34 of the Land and Environment Court Act 1979 (NSW). During this conference, held on 24 July 2026, the parties successfully reached an agreement on the terms of a decision that would be acceptable to both sides.
The core issue before the Commissioner, presiding over the conference, was to ensure that the parties’ agreed decision to grant development consent, as amended and subject to conditions, was one that the Court could have made in the proper exercise of its functions, specifically by satisfying all relevant jurisdictional prerequisites under various environmental planning instruments.
The Court’s Holding
The Land and Environment Court of New South Wales upheld the appeal lodged by Touma Family Super Fund Pty Limited. The Commissioner found that there were no jurisdictional bars preventing the Court from approving the development application, as amended, based on the agreement reached during the conciliation conference.
The Court systematically addressed the jurisdictional prerequisites outlined in the State Environmental Planning Policy (Resilience and Hazards) 2021, the State Environmental Planning Policy (Biodiversity and Conservation) 2021, and the Parramatta Local Environmental Plan 2023. This included confirming satisfaction regarding land contamination (deemed unlikely due to historical use), water quality and flow impacts (assessed as negligible), flood impacts (based on expert flood studies indicating no increased risk to surrounding properties), and the availability of essential services. These findings were predominantly based on the parties’ agreed statements of jurisdictional prerequisites and supporting technical reports.
Ultimately, the Court ordered that Development Application DA/628/2024 (as amended), for the demolition of existing structures and the subdivision of one lot into eight, be granted consent, subject to the conditions detailed in Annexure “A” to the agreement. Additionally, the applicant was directed to pay the respondent’s costs of $3,000, incurred as a result of the amendments to the development application.
Key Takeaways
- Conciliation conferences under s 34 of the LEC Act are an effective mechanism for resolving development application appeals by facilitating party agreement.
- The Land and Environment Court will scrutinize party agreements to ensure all jurisdictional prerequisites are met and the decision aligns with statutory functions.
- Comprehensive environmental assessments, particularly for contamination, biodiversity, and flood impacts, are crucial for satisfying development consent requirements.
- Amendments to development applications during appeal proceedings can result in cost orders against the applicant.
Why It Matters
This decision underscores the practical utility and judicial endorsement of conciliation conferences as a primary method for dispute resolution in planning and environmental matters in New South Wales. It illustrates that even when parties reach an agreement, the Court retains an important oversight role to ensure the proposed consent adheres to the relevant legislative framework and environmental planning instruments. This provides certainty for both applicants and councils, knowing that negotiated outcomes will still be subject to jurisdictional review.
For developers, the case highlights the necessity of thorough pre-application studies and adaptability, as amendments during an appeal can lead to resolution but also carry cost implications. For planning authorities, it reinforces the process for dealing with development applications in flood-prone or environmentally sensitive areas, emphasizing the need for detailed assessments to satisfy complex statutory requirements. Overall, it serves as a valuable precedent for how development appeals can be efficiently resolved while maintaining regulatory integrity through collaborative agreement and judicial oversight.