Background
Nemr Magdy Yassa appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) against Canterbury-Bankstown Council’s refusal of a development application to demolish existing structures and construct a childcare centre at 12 Segers Avenue, Padstow. The application was lodged in June 2025, refused in September 2025, and brought before the Court as a Class 1 proceeding in December 2025.
After a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW), the parties negotiated amendments and agreed that consent should be granted subject to conditions. The amendments included reducing the centre’s capacity to 40 children, providing 10 off-street parking spaces, lowering the building and floor levels, revising setbacks and internal layouts, and making fire-safety, access, landscaping, and service changes. No public submissions had been received during notification of the application.
The Court’s Holding
Acting Commissioner Kullen upheld the appeal and granted development consent to the amended application, subject to the conditions in Annexure A. The Court also ordered Yassa to pay the Council $6,000 for costs thrown away because of the amendment to the development application.
Under s 34(3) of the Land and Environment Court Act, the Court was required to give effect to the parties’ agreement if it was a decision the Court could properly have made. The Commissioner found that the relevant jurisdictional prerequisites had been satisfied, including requirements concerning zoning, building height, floor-space ratio, contamination, childcare facilities, and the matters prescribed by s 4.15 of the Environmental Planning and Assessment Act. The Court did not undertake a merits assessment of the issues originally disputed between the parties.
Key Takeaways
- A Class 1 development appeal may be resolved through a binding s 34 conciliation agreement where the Court is satisfied that the agreed decision is within its lawful powers.
- The approved childcare centre was materially revised, including a reduction to 40 children, before the Council agreed to consent.
- An applicant who amends a development application during an appeal may be ordered to pay the consent authority’s resulting wasted costs.
Why It Matters
The decision illustrates the Court’s limited but essential role when parties settle a planning appeal through statutory conciliation: it must verify jurisdiction and legality, but it need not independently determine the original planning disputes on their merits.
For developers and councils, the case also shows how amended plans and negotiated consent conditions can resolve objections to a refused development application while preserving accountability for costs caused by late amendments.