Background
Upscale Developments Pty Ltd brought a Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) against Woollahra Municipal Council’s refusal of a development application for 574–576 Old South Head Road, Rose Bay. The proposal involved demolishing the existing dwellings and constructing a 17-unit residential flat building, with five units designated as affordable housing.
The application attracted 49 submissions. Residents raised concerns including bulk and scale, overshadowing, privacy, traffic, flooding, geotechnical issues, and neighbourhood character. Following an earlier conciliation conference, the developer amended the proposal to reduce the basement and above-ground built form, excavation, and impacts including privacy and overshadowing. At a further conciliation conference on 11 September 2026, the parties agreed that the appeal should be upheld and consent granted subject to conditions.
The Court’s Holding
Commissioner Espinosa held that the parties’ agreed decision 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 was therefore required to dispose of the proceedings in accordance with that agreement. Because the orders implemented the parties’ agreed decision, the Commissioner was not required to, and did not, undertake a merits assessment of the issues originally in dispute.
The Court upheld the appeal and granted consent for the amended 17-unit development subject to the conditions in Annexure A. It was satisfied that the relevant jurisdictional prerequisites under applicable planning instruments had been addressed, including requirements concerning affordable housing, building height and floor space, flooding, contamination, water quality, classified-road access, traffic noise, and sustainability. The Court also ordered the developer to pay the Council $10,000 within 14 days for costs thrown away because of the amendment.
Key Takeaways
- A court implementing an agreement reached at a statutory conciliation conference must be satisfied that the agreed decision is one it could properly have made.
- The approved scheme comprises 17 apartments, including five affordable-housing units, with a condition requiring the affordable housing to remain in that use for 15 years.
- Amending a development application during an appeal can result in an order for costs thrown away; here, the developer was ordered to pay the Council $10,000.
Why It Matters
The decision illustrates how a New South Wales development appeal can be resolved through a s 34 conciliation agreement. The Court still had to verify that it possessed the power to grant consent and that the applicable jurisdictional prerequisites were satisfied, but it was not required to determine the merits of the planning disputes that the parties had settled.
For developers and consent authorities, the case also shows the practical importance of documenting how an amended proposal satisfies each applicable planning instrument and addresses public objections. Although agreement secured approval here, the amendments also carried a direct costs consequence for the applicant.