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No linked legislation citations have been extracted yet.

The Court convened a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The conferences took place over four dates: 24 and 31 July, 28 August, and 18 September 2020 ([2]). In accordance with the Court’s COVID-19 arrangements, the proceedings were conducted using Microsoft Teams ([3]).

The parties reached an agreement on an amended proposal. It retained five storeys but reduced the accommodation to 62 rooms, specified as 11 single and 51 double rooms, and increased parking to 32 vehicles ([4]–[5]). The agreed orders included consent subject to conditions, acceptance of a height-standard variation, and payment by the applicant of $10,000 for costs thrown away because the application had been amended.

The judgment records an important procedural qualification: a conciliation agreement is not, by itself, the Court’s order. Section 34(3) required the Court to dispose of the case according to the parties’ decision only if that was a decision the Court could have made in the proper exercise of its functions ([6]). The Acting Commissioner therefore identified and considered the applicable planning requirements before making the agreed orders.

The final orders granted leave to rely on amended architectural, landscape and stormwater plans identified in Condition 2 of Annexure A. They upheld the appeal and granted consent for the amended boarding house, subject to Annexure A conditions. The supplied judgment does not reproduce those detailed conditions, so their specific content cannot be analysed here.

Why the court decided this way

The Court’s reasoning proceeds from its statutory role in an agreed Class 1 appeal. It identified that the parties’ agreement called for the Court to exercise the development-consent function under s 4.16 of the EPA Act ([6]). It then considered whether the relevant jurisdictional prerequisites had been met ([7]).

The State Environmental Planning Policy (Affordable Rental Housing) 2009 applied to the proposal, which was for a boarding house on land zoned R4 High Density Residential under the Sutherland Shire Local Environmental Plan 2015 (SSLEP) ([8]). The Court noted that clause 28 of that policy allowed the amended proposal to be carried out with consent ([9]). It found compliance with the standards in clause 29 that cannot be used to refuse consent, except for the building-height standard in clause 29(2)(a), which it addressed separately ([10]). It also found compliance with the boarding-house standards in clause 30(1) and compatibility with the local area’s character under clause 30A. In assessing character, the Court referred to the SSLEP’s planned transition towards high-density residential uses ([11]–[12]).

The principal planning issue was the height variation. The amended building height was 16.68 m, compared with a 16 m standard, a variation of 4.25%. The judgment says the excess was limited to a small extent of the site and attributable to a lift overrun ([13]). Under clause 4.6(3) of the SSLEP, the written request had to address why compliance was unreasonable or unnecessary in the circumstances and identify sufficient environmental planning grounds for the contravention. Clause 4.6(4) required the consent authority to be satisfied that the request adequately addressed those matters and that the development was in the public interest because it was consistent with the relevant development-standard and zone objectives ([14]–[15]). The Court also addressed the concurrence matters referred to in clause 4.6(4)(b) and (5) ([16]).

The applicant supplied a clause 4.6 written request prepared by ABC Planning Pty Ltd and dated September 2020 ([17]). The Court’s reasoning on the physical impact was that the proposal generally sat within the building envelope determined by the height standard and primary setback controls. The breach was confined to a lift overrun, positioned so that its visibility or overshadowing would be negligible or eliminated. On that basis, the Court found that the height objectives were achieved notwithstanding the numerical exceedance. It also accepted consistency with the zone objectives and found the development would be in the public interest ([18]). Having found the clause 4.6 matters adequately addressed, it upheld the variation under s 39(6) of the LEC Act ([19]).

The Court also recorded conclusions on other matters. It accepted the parties’ position that the land had been used for residential purposes since subdivision and noted there was no evidence of contamination, in considering State Environmental Planning Policy No 55 ([20]). It found that an acoustic report satisfactorily addressed the rail and road noise provisions in clauses 87 and 102 of the Infrastructure SEPP ([21]). A BASIX Certificate had been submitted to support compliance with the BASIX policy ([22]). These findings supported the Court’s conclusion that it was appropriate to make the agreed orders ([23]).

Before and after state of the law

This judgment does not purport to change the law or establish a new general test. It applies statutory and planning-instrument provisions already identified in the reasons: s 34(3) of the LEC Act, s 4.16 of the EPA Act, and clause 4.6 of the SSLEP, among others ([6], [14]–[19]). Its significance in this particular proceeding lies in how the Court applied those provisions to the amended design and the parties’ agreement.

Before the orders, the proceeding concerned a deemed refusal and an original proposal with 72 rooms and 21 parking spaces ([1]). By the time of agreement, the proposal had changed to 62 rooms and 32 parking spaces ([5]). The Court granted leave to rely on amended plans and then granted consent to the amended scheme. That is the procedural and project-specific change reflected in the decision, rather than a change to the content of the planning instruments.

On height, the Court accepted a 4.25% variation where the excess was attributed to a lift overrun and was limited in extent. Its reasons focused on the location and effects of that element, the objectives of the height standard, the zone objectives, and the public interest ([13]–[19]). The judgment does not state that a variation of this percentage, or a lift-overrun variation generally, must be accepted in other developments. Nor does it set out a universal approach for measuring visual or overshadowing effects.

The decision also illustrates the statutory constraint on agreed outcomes under s 34(3). The parties’ consent was relevant, but the Court still had to determine whether the outcome was one it could make in the proper exercise of its functions ([6]–[7]). The judgment records that it undertook that assessment by considering the applicable planning provisions and identifying the relevant outstanding height issue ([8]–[22]).

Key passages with plain-English translation

At [6], the Commissioner stated that the Court “must dispose of the proceedings in accordance with the parties’ decision” if it is a decision the Court could have made properly. In plain English, the parties’ agreement is not enough on its own. The Court has to check that the agreed result is legally available within its decision-making powers.

At [13], the judgment describes the proposed height as 16.68 m against a 16 m standard, a 4.25% variation. The excess was “attributable to a lift overrun.” This identifies the scale and stated cause of the non-compliance. The judgment does not treat the percentage alone as resolving the issue.

At [18], the Court explains that the excess was limited to a single lift overrun and positioned so that visibility or overshadowing would be negligible or entirely eliminated. In plain English, the Court considered where the non-compliant part sat and what effects it was likely to have, rather than treating the numerical breach in isolation. It then found that the height objectives could still be achieved despite the breach.

At [19], the Court says it was satisfied the matters in clause 4.6(4) had been addressed and the matters in clause 4.6(5) adequately considered, and therefore upheld the variation. This is the conclusion on the statutory variation request. It is grounded in the Court’s stated satisfaction about the written request, planning objectives, public interest and concurrence matters.

Finally, the orders required the applicant to pay $10,000 in costs “thrown away as a result of amending the development application,” within 28 days ([Orders 1(2)]). That order identifies both the amount and deadline. The judgment does not explain how the amount was calculated, so further reasoning about its basis cannot be drawn from the text supplied.

What fact patterns trigger this precedent

The decision is most directly relevant to a procedural setting in which parties to a Class 1 planning appeal reach an agreement at a conciliation conference and ask the Court to make orders giving effect to it. The controlling statutory point is that the Court’s power under s 34(3) depends on whether the agreed decision is one the Court could have made in the proper exercise of its functions ([6]). It is not a general endorsement of every negotiated planning outcome.

For the height issue, the fact pattern involved a boarding house in an R4 High Density Residential zone, a 16 m building-height standard, and an amended design reaching 16.68 m because of a lift overrun ([8], [13]). The Court accepted the variation after considering the written request, the limited extent of the breach, the overrun’s location and its expected visibility and overshadowing effects, along with the relevant planning objectives ([14]–[19]). A case with different building elements, site context, impacts, planning objectives or supporting material may raise different questions.

The judgment also concerns an amended application during an appeal, where the Court granted leave to rely on revised plans and ordered costs thrown away because of the amendment ([Orders 1(1)–(2)]). It does not provide a general rule about when amended plans should be accepted or how costs should be quantified. Those aspects are recorded as orders in this proceeding, without further analysis.

How later courts have treated it

The supplied judgment contains no discussion of later cases, and no later authorities have been provided for this analysis. It is therefore not possible, on this source material, to say whether later courts have followed, distinguished, applied or otherwise treated this decision.

The judgment itself cites no other decided cases. Its reasoning is statutory and instrument-based, referring to provisions of the EPA Act and LEC Act and to the relevant environmental planning instruments. The absence of cited precedents in the supplied text means that a precedent-relations history cannot be extracted from this judgment alone. Any account of later judicial treatment would require later decisions or a separate, supplied legal source.

For research use, the decision’s express reasoning should be distinguished from any broader characterisation of its precedential weight. It is a principal judgment in a Class 1 appeal, but the proceeding was resolved by agreement and the reasons focus on whether that agreed decision could properly be made. The text does not claim to formulate a general rule for all clause 4.6 applications or all conciliation outcomes.

Still-open questions

The judgment does not reproduce the full clause 4.6 written request or the detailed conditions in Annexure A. It states that the request was prepared by ABC Planning Pty Ltd and dated September 2020, and summarises the considerations the Court accepted ([17]–[19]). Without the request itself, it is not possible to examine its full reasoning, evidence or treatment of every clause 4.6 matter.

The reasons do not explain the calculation of the $10,000 costs order. The operative order states that the amount represents costs thrown away as a result of amending the development application and must be paid within 28 days ([Orders 1(2)]). The judgment does not provide a breakdown or describe any competing submissions about the amount.

The decision also does not elaborate on the factual material underlying the Court’s assessments of visibility and overshadowing. It says those effects would be negligible or eliminated due to the lift overrun’s location ([18]), but does not set out detailed measurements, viewpoints, shadow diagrams or evidentiary disputes. The basis stated by the Court should therefore not be extended beyond this proposal and the material it considered.

Finally, the text does not address the effect of later legislative or policy changes, nor does it provide a record of subsequent judicial treatment. Its conclusions should be understood as the Court’s application of the provisions cited in the judgment to the agreed proposal before it in October 2020.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have a qualified Australian lawyer check it.