Background
Hui Hong Zhao appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) after Hornsby Shire Council refused DA/1042/2025. The application concerned demolition works and construction associated with a dwelling house and landscaping at 81 Cheltenham Road, Cheltenham. The Council had refused the application in December 2025; the Class 1 appeal was filed in March 2026.
At a Court conciliation conference in July 2026, the parties agreed on amended plans. The amended proposal retained the existing dwelling, limited demolition principally to its rear and selected internal fabric, and located additions behind the existing footprint. It was supported by further material on stormwater, earthworks, trees and landscaping.
The Court’s Holding
Acting Commissioner Starr upheld the appeal and granted development consent for the amended DA, subject to the conditions in Annexure A. The Court found that the agreed outcome was one it 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 satisfied that the relevant jurisdictional matters had been addressed, including owner’s consent, contamination, vegetation and water-management considerations, BASIX requirements, road-noise considerations, heritage impacts within the Beecroft-Cheltenham Heritage Conservation Area, earthworks, and public submissions. Because the parties’ agreement passed the s 34(3) test, the Court was required to dispose of the proceedings in accordance with it; it did not conduct a merits assessment of the discretionary matters under s 4.15 of the EPA Act.
Key Takeaways
- A Class 1 planning appeal may be resolved through a conciliation agreement if the agreed result is one the Court could lawfully make.
- The amended proposal preserved the existing house and confined demolition and additions largely to the rear.
- The consent was granted subject to detailed agreed conditions addressing the remaining planning and technical issues.
Why It Matters
The decision illustrates the Land and Environment Court’s conciliation process in a residential development dispute. Its role was not to independently re-determine all discretionary planning merits once the parties reached agreement, but to ensure the agreed consent was within the Court’s jurisdiction and a proper exercise of its functions.