Background
Monique Wilson appealed Lithgow City Council’s refusal of DA 33/2025 under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW). The amended proposal was to convert an existing dwelling at 20 Curtin Place, Lithgow, into a centre-based childcare facility for 36 children.
The parties held conciliation conferences under s 34 of the Land and Environment Court Act 1979 (NSW). The proposal was amended during that process, including a reduction from 39 to 36 places, and was re-notified. The parties ultimately filed an agreement supporting approval subject to conditions.
The Court’s Holding
Acting Commissioner Swan upheld the appeal and granted development consent for the amended 36-place childcare facility, subject to the agreed conditions in Annexure A. The applicant was also ordered to pay the Council $5,600 in costs thrown away by the amendment, within 28 days.
The Commissioner held that the parties’ agreement met the requirements for a s 34 disposition: the parties had reached a decision, and it was one the Court could properly make. The Court accepted the parties’ assessments concerning zoning permissibility, stormwater and groundwater, drinking-water catchment requirements, contamination, childcare-space standards, servicing, and public submissions.
Key Takeaways
- A planning appeal may be resolved through a s 34 conciliation agreement where the agreed outcome is one the Court could lawfully make.
- The reduced 36-place proposal complied with the applicable indoor and outdoor childcare-space requirements.
- The Court did not independently decide the original merits disputes; it made orders giving effect to the parties’ agreement.
Why It Matters
The decision illustrates the practical role of conciliation in NSW Class 1 planning appeals. Amendments, further technical material, re-notification, and agreed conditions enabled a refused childcare proposal to proceed with consent.
It also confirms that a s 34 consent outcome still requires the presiding Commissioner to be satisfied that the agreed decision falls within the Court’s proper statutory functions.