appellant. The appeal is upheld. Consent is granted to Development Application DA 0682/2019 for a cemetery and associated buildings and roadworks at Lot 300 DP 1223037, Croome and Tongarra Road, Croom,...
Key principles
Where parties in a Class 1 appeal reach agreement at conciliation under s 34(1) of the Land and Environment Court Act 1979, the Court must dispose of the proceedings in...
A development application may be granted by the Court where the Court is satisfied, on the evidence before it, that requirements in relevant statutory regimes and instruments...
Conciliation-based agreements resolving objector and council contentions concerning amenity, noise, flood, bushfire and access can form an adequate evidentiary basis for the...
Issues before the court
Whether the Court could and should dispose of the Class 1 appeal in accordance with the parties' agreement reached at conciliation under s 34(3) of...
Whether the requirements of ss 4.14 (protected matters, including BC Act and bushfire) and 4.15(1) (merit considerations) of the EPA Act were...
Whether the proposal complied with disability access obligations under the Disability Discrimination Act 1992 and the Disability (Access to Premises...
Plain English Summary
The applicant appealed a deemed refusal of a DA for a cemetery. At conciliation the parties agreed amended plans, specialist reports and conditions would resolve Council and objector concerns. The Court, bound by s 34(3) to give effect to a conciliatory agreement it could properly make, found the DA satisfied the statutory prerequisites (including ss 4.14 and 4.15(1) EPA Act and other regulatory requirements) and granted consent subject to conditions, and ordered the applicant to pay the council's wasted costs of $7,500.
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Deep Dive
1,767 words · generated 15/07/2026
What happened
Parsons v Shellharbour City Council concerned a Class 1 appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 challenging the deemed refusal of Development Application DA 0682/2019 for a cemetery and associated buildings on Lot 300 DP 1223037, on the corner of Croome Road and Tongarra Road, Croom [1]–[2]. The appeal was listed for a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 and heard on 26 October 2020 by Microsoft Teams [3]. There were no resident objectors at the conciliation, though the Court recorded that earlier notification had produced objector submissions [3], [18].
Parsons v Shellharbour City Council [2020] NSWLEC 1539 | Case summary | Zoe
Whether the Biodiversity Conservation Act 2016 requirements were satisfied (test of significance for endangered species).
Cited legislation
1 cited instrument linked from this judgment.
At conciliation the applicant and respondent reached agreement: the applicant provided amended plans and supporting specialist reports and the parties agreed conditions of consent which, together, addressed the Council's contentions and issues from objectors [4], [19]. The parties identified the specific statutory and policy instruments relevant to the Court's jurisdictional assessment, relying on materials to address each (for example, an accessibility report for the Disability Discrimination Act, a bushfire hazard assessment, a biodiversity test of significance, acoustic and flood impact assessments, and TfNSW concurrence for works affecting a classified road) [6]–[16], [10], [16].
Commissioner Bish determined, pursuant to s 34(3) of the LEC Act, that where the parties reach an agreement at conciliation the Court must dispose of the proceedings in accordance with that agreement if it is a decision the Court could have made in the proper exercise of its functions [5]. The Commissioner was satisfied the supporting documents and conditions demonstrated that the statutory prerequisites in ss 4.14 and 4.15(1) of the EPA Act and related statutory instruments were met [5], [21]. Accordingly the Court made orders on 9 November 2020 granting consent to the DA subject to conditions contained in Annexure A, upholding the appeal, and ordering the applicant to pay the respondent's costs thrown away in the sum of $7,500 within 28 days [23].
Why the court decided this way
Two linked legal propositions explain the decision.
First, the statutory framework under the Land and Environment Court Act gives strong effect to conciliation. Section 34(3) requires the Court to dispose of proceedings in accordance with a conciliation outcome if the decision is one the court could properly have made [5]. This compels the Court to give effect to consensual resolutions reached at conciliation, subject to judicial assessment that the proposed order is one it could itself make. Commissioner Bish invoked and applied that statutory obligation directly [5].
Second, the Court had to be satisfied that, on the materials before it, there were no jurisdictional impediments to granting consent. That required satisfaction of ss 4.14 and 4.15(1) of the Environmental Planning and Assessment Act, and compliance with relevant statutory instruments and policies identified by the parties (including the Disability Discrimination Act and Standards, Biodiversity Conservation Act, Roads Act and SEPPs, SLEP provisions, SEPP 55 and SEPP 64, and the Shellharbour Development Control Plan) [6]. The parties produced and relied upon specialist technical reports and amended plans (for example, an Accessibility Design Review Report by ABE Consulting, a Bushfire Hazard Assessment, a test of significance for biodiversity, an acoustic assessment, flood impact and stormwater plans, and TfNSW concurrence) and agreed conditions that incorporated statutory agency requirements [7]–[11], [16], [23].
The Court examined those materials and concluded they addressed key potential impacts: disability access issues were resolved by the accessibility report and reflected in conditions [7]; bushfire requirements were met with a Bushfire Hazard Assessment and RFS conditions [8]; biodiversity concerns were addressed by the test of significance report [9]; transport and classified road matters were resolved by TfNSW concurrence and inclusion of required road works and dedications in the plans and conditions [10]; contamination issues under SEPP 55 were not of concern per the Council's assessment [12]; signage complied with SEPP 64 criteria [13]; SLEP zone objectives and flood mapping impacts were addressed by amended plans and supporting documents [14]–[15]; and aircraft noise risks were mitigated by building design and conditions informed by an Environmental Noise Impact Assessment [16]–[17]. The Court explicitly found there were no jurisdictional impediments and that the requirements of ss 4.14 and 4.15(1) were satisfied, enabling it to give effect to the parties' agreement [21]–[22].
Therefore the order granting consent flows from the combination of statutory duty to adopt a conciliation outcome the Court could itself make and the Court's affirmative findings, grounded in the documents and conditions, that statutory and policy prerequisites were satisfied.
Before and after state of the law
Before this case, the statutory framework governing conciliation outcomes and judicial disposition in the Land and Environment Court was unchanged: s 34(3) already required the Court to dispose of proceedings in accordance with a conciliation agreement if it was a decision the Court could properly make. What this decision illustrates, rather than establishing new law, is the practical application of that framework to a contested development application where detailed specialist reports and amended plans were produced at conciliation.
After Parsons, the legal position remains the same in terms of precedent: the decision demonstrates two practical points of application.
First, conciliation may produce a comprehensive evidentiary and regulatory package (amended plans, specialist reports, agency concurrence and conditions) sufficient to satisfy the Court on jurisdictional prerequisites, enabling the Court to give effect to the negotiated outcome under s 34(3) [5], [21].
Second, the decision exemplifies the Court's approach to accepting technical reports and conditions as an adequate basis for finding compliance with a suite of statutory instruments and policies, where those materials collectively resolve the relevant concerns of the consent authority and objectors [6]–[17], [19].
The case is therefore of practical value as an example of how a well-prepared conciliation package can dispose of a Class 1 planning appeal by consent. It does not change statutory obligations or create novel legal tests.
Key passages with plain-English translation
"Based on the amended plans... the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties." [4]
Plain English: The applicant and Council settled their differences at conciliation by agreeing new plans and terms which both sides found acceptable.
"Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions." [5]
Plain English: If the court thinks the settled outcome is something it itself could lawfully make, it has to implement that settlement.
"The parties agree that the requirements of the DD Act have been satisfied by the provision of an access report ... that confirms the proposed design satisfies the requirements of the Disability Standards." [7]
Plain English: The Council and applicant agreed an accessibility report shows the design meets disability law requirements, and conditions will ensure this.
"I am satisfied that there are no jurisdictional impediments to this agreement and that DA 0682/2019 should be granted, as it satisfies the requirements of ss 4.14 and 4.15(1) of the EPA Act." [21]
Plain English: The judge concluded the settlement cleared all legal hurdles and the Court could validly grant the development consent.
Operative order: "The appeal is upheld... DA 0682/2019 ... is determined by the grant of consent, subject to the conditions at Annexure 'A'." [23]
Plain English: The appeal was successful and the development consent was formally granted on the terms agreed at conciliation.
What fact patterns trigger this precedent
This decision is persuasive in situations with the following fact pattern:
A Class 1 appeal against a deemed refusal of a development application where the development is complex and interacts with multiple statutory regimes (e.g. accessibility, biodiversity, bushfire, flood, aircraft noise, classified roads and SEPPs), and
The parties are willing and able to produce an integrated package at conciliation (amended plans, specialist reports, agency concurrence and draft conditions) that addresses each statutory and amenity concern relied upon by the consent authority and objectors, and
There is an absence of unresolved legal impediments (for example, conflicts in zone permissibility or unremediable environmental impacts), such that the Court can properly conclude the agreement is a decision it itself could make under its statutory functions.
In such circumstances Parsons confirms that the Court will give effect to a conciliation settlement under s 34(3) provided the Court is satisfied on the statutory prerequisites in ss 4.14 and 4.15(1) (and related instruments).
How later courts have treated it
The judgment itself contains no discussion of later authority. The decision is primarily operative and procedural: it records acceptance of a conciliation outcome after satisfaction of statutory prerequisites. As such, Parsons functions mainly as a practical illustration, rather than a doctrinal pivot, of the Court applying s 34(3) and ss 4.14 / 4.15(1). To determine how later courts have treated Parsons specifically would require subsequent case law research; the present judgment does not supply that material.
Still-open questions
Parsons is fact-specific and raises limited precedent questions. Remaining uncertainties include:
The extent to which courts may scrutinise the sufficiency of technical reports relied upon at conciliation where objectors or third parties are absent from the conciliation, particularly on contested scientific matters. Parsons accepted the parties' expert material as adequate; it does not elaborate the threshold for when the Court would decline to give effect to a conciliation settlement on evidentiary insufficiency grounds (compare the general statutory obligation under s 34(3) [5], [21]).
The judgment records acceptance of conditions to mitigate impacts (e.g. noise, bushfire and flood) but does not articulate a detailed approach to the content or enforcement of such conditions; practitioners should note that the precise phrasing of conditions and supporting plans will be central to any later compliance or enforcement issues [23].
Where third party objectors are numerous or raise technical objections, it remains for future decisions to clarify how the Court balances settlement-by-consent with the need for independent judicial scrutiny of contested technical issues.
Parsons does not address scenarios where a conciliation agreement rests on future contemporaneous approvals or works by other agencies that are not guaranteed; the permissibility of disposing of proceedings by consent in such contingent circumstances remains to be tested.
In short, Parsons is a clear example of the Court giving effect to a comprehensive conciliation agreement when the Court is satisfied statutory prerequisites are met; unresolved questions primarily concern the boundary of judicial acceptance of party-supplied evidence and conditions in more contested or technically disputed cases.
Judgment (3 paragraphs)
[1]
Judgment
COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA) 0682/2019 by Shellharbour City Council (hereafter the Council) which as amended, seeks a (cemetery) development with construction of associated buildings including a memorial home, administration, mortuary, landscaping, parking, essential services, road and drainage works on Lot 300 DP 1223037, also known as corner Croome Road and Tongarra Road, Croom (hereafter the site).
This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
The Court agreed to the parties' request for a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held before me on 26 October 2020 by Microsoft (MS) Teams in Court. There were no (resident) objectors at the conciliation, however the Court notes that a number of resident submissions in objection were provided as a result of notification of the original DA.
Based on the amended plans, together with the DA's supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions raised by Council have been considered and resolved, in addition to the issues raised in submissions by objectors. The decision of the parties is to uphold the appeal and grant consent to DA 0682/2019 with conditions.
Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to be satisfied of the requirements in ss 4.14 and 4.15(1) to grant consent to DA 0682/2019, with conditions described in Annexure A.
The parties identified the jurisdictional prerequisites of particular relevance in these proceedings for the Court's consideration as consistency with the: Disability Discrimination Act 1992; (DD Act); Biodiversity Conservation Act 2016 (BC Act); Roads Act 1993; Environmental Planning and Assessment Regulation 2000 (EPA Reg); State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure); State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55); State Environmental Planning Policy No 64 - Advertising and Signage (SEPP 64); Shellharbour Local Environmental Plan 2013 (SLEP); the Disability (Access to Premises - Buildings) Standards 2010 (Disability Standards); and the Shellharbour Development Control Plan 2013 (SDCP).
The parties agree that the requirements of the DD Act have been satisfied by the provision of an access report by ABE Consulting, dated 5 August 2020 and which supports the DA, that confirms the proposed design satisfies the requirements of the Disability Standards. The conditions of consent reflect the requirements to satisfy the DD Act. The relevant contention is thereby resolved.
The parties recognise that the site is partially mapped as bushfire prone land. A Bushfire Hazard Assessment, prepared by Harris Environmental Consulting, supports the DA. The NSW Rural Fire Service have provided conditions of approval, which are included in the conditions of consent. Therefore, the parties agree that the requirements of s 4.14 of the EPA Act are satisfied.
The parties agree that the DA has assessed any potential impact of the proposed development on endangered species. The site assessment and test of significance report dated 24 July 2020, demonstrates that there is no known potential for impact to endangered species. The parties agree that the requirements of the BC Act are satisfied, and the relevant contention is resolved by the documents supporting the DA and conditions of consent.
As the DA proposes works to Tongarra Road, which is a classified road and a car park for more than 50 spaces, concurrence was sought and provided from Transport for NSW (TfNSW). Their requirements are included in the conditions of consent, with the proposed upgrades to roads associated with the site shown in plans that support the DA. Works that require the dedication of two small sections of the site to Council, are identified in the conditions of consent and attached plans. The parties agree that the requirements of the Roads Act 1993 and SEPP Infrastructure are satisfied, and the relevant contentions resolved.
The applicant is a Director of the company that owns the land, and the parties agree that there are no issues relating to compliance with Schedule 1 of the EPA Reg in the making of the development application.
The parties agree that the proposed development complies with the provisions of SEPP 55, as contamination is not likely on the site, as assessed by the Council. The parties agree that the site is suitable for the proposed development and the conditions of consent address any unforeseen issues, thereby satisfying the requirements of SEPP 55.
The parties agree that the proposed signage is consistent with the aims and objectives of SEPP 64, and that the signage proposed satisfies the criteria specified in Schedule 1. The contention that relates to the requirements of cl 8 of SEPP 64 is resolved to the satisfaction of the parties.
The proposed development on the site is located within the SP1 Special Activities Zone, as identified in the SLEP. The proposed development is permissible and satisfies the objectives of this zone. The western portion of the site is zoned RE1 (Public Recreation), pursuant to the SLEP, although the parties accept that this area is not intended to be developed as part of the DA under appeal. The parties agree that the relevant provisions of the SLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The relevant contentions are resolved by the DA's amended plans and supporting documents, and conditions of consent.
Specifically, the supporting documents and amended plans of the DA, together with the conditions of consent satisfy the requirements of cl 6.3 of the SLEP, as the land is partially mapped as flood prone, and which resolves the relevant contention.
The site is located within proximity of the Illawarra Regional (Shellharbour) Airport. The parties agree that the requirements of the Civil Aviation Safety Authority (CASA), and specifically cll 6.7 and 6.8 of the SLEP are addressed by the provisions of an Environmental Noise Impact Assessment prepared by Harwood Acoustic, which support the DA and as described in the conditions of consent in Annexure A.
As a result of the amended DA and conditions of consent, the parties agree that there are no unreasonable amenity impacts to adjoining properties or within the site as a result of the proposed development. The acoustic impact assessment that supports the amended DA resolves the issues as raised by objectors, with regards to any potential amenity issues to the mourners on the site. The parties agree the site is suitable for the proposed development. The contention as it relates to acoustic impact is resolved because noise from the nearby airport will be mitigated by the design of buildings and the height limit on structures is observed.
The parties agree that the DA was publicly notified in accordance with the SDCP. During the notification period for this DA under appeal, 10 submissions in objection were received by Council. The parties agree that the issues raised by objectors are resolved by the provision of additional information and amended plans that supports the DA, and conditions of consent.
The parties advise the Court that the amended plans that relate to the proposed development have been considered in the context of the site and surrounding area. Based on the amended plans and supporting documents to the DA, the contentions raised by Council and all jurisdictional requirements are resolved to the satisfaction of the parties and the Court.
The parties advise the Court that they have undertaken the appropriate merit assessment of the amended DA, and that they are satisfied resolves the contentions and resident issues, as raised.
I am satisfied that there are no jurisdictional impediments to this agreement and that DA 0682/2019 should be granted, as it satisfies the requirements of ss 4.14 and 4.15(1) of the EPA Act.
As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
The Court orders that:
1. Leave is granted to rely on the following documents that are the subject of development application DA 0682/2019:
Name of Plan/Document Prepared By Drawing/Document No./Revision Drawing/Document Date
Cover Sheet & Overall Site Plan Place Logic L000/Revision 3 25/09/2020
Staging Plan Place Logic L001/Revision 2 25/09/2020
Proposed Signage Place Logic L003/Revision 00 20/12/2019
Site Plan (North) Place Logic L100/Revision 5 25/09/2020
Site Plan (South) Place Logic L1001/Revision 6 25/09/2020
Landscape Plan (North) Place Logic L300/Revision 4 25/09/2020
Landscape Plan (South) Place Logic L301/Revision 4 25/09/2020
Building B:Chapel Floor Plan Marksman Homes Job No.2267, Revision T1 25/09/2019
Building B:Chapel Elevations Marksman Homes Job No.2267, Revision T1 25/09/2019
Building C:Memorial Homes-Floor Plan & Elevations Marksman Homes Job No.2267, Revision T1 05/12/2019
Building D:Memorial Homes Office-Floor Plan & Elevations Marksman Homes Job No.2267, Revision T1 -
Building E:Administration, Garage and Mortuary-Floor Plan Marksman Homes Job No.2267, Revision T1 05/12/2019
Building E:Administration, Garage and Mortuary-Elevations Marksman Homes Job No.2267, Revision T1 05/12/2019
Stormwater Plan-Sheet 1 Westlake Punnet 19395-C02, Revision F 18/09/2020
Stormwater Plan-Sheet 2 Westlake Punnet 19395-C03, Revision F 18/09/2020
Waste Management Plan Alan Parsons - 19/12/2019
Bushfire Hazard Assessment for Proposed Cemetery Development and Associated Buildings Harris Environmental Consulting Reference 3516 16 Dec 2019
Aircraft Noise Intrusion Assessment Proposed Cemetery Development at Croome Road/Tongarra Road (LOT 300, DP 1223037) Albion Park NSW 2527 Harwood Acoustics. Rev FINAL 15 Jan 2020
Flood Impact Assessment Report At Cnr Croome & Tongarra Roads, Albion Park Lot 300, DP 1223037 Westlake Punnett and Associates Pty Ltd Job ref: 19395.01 22 September 2020
Accessibility Design Review Report ABE Consulting Job No.20219, Version 20219_ADR-DA_v12 5 August 2020
[2]
The Court orders the Applicant pay the Respondent's costs thrown away in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $7,500 within 28 days of the date of these orders.
2. The appeal is upheld.
3. Development application DA 0682/2019 for a cemetery and associated (ancillary) buildings and roadworks at Lot 300 DP 1223037, Croome and Tongarra Road, Croom is determined by the grant of consent, subject to the conditions at Annexure "A".
…………………………
Sarah Bish
Commissioner of the Court
Annexure A (1887292, pdf)
Plans (14182415, pdf)
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 09 November 2020
The appeal is upheld. Consent is granted to Development Application DA 0682/2019 for a cemetery and associated buildings and roadworks at Lot 300 DP 1223037, Croome and Tongarra Road, Croom, subject to the conditions in Annexure A; the Applicant must pay the Respondent's wasted costs in the sum of $7,500 within 28 days; leave is granted to rely on the listed plans and documents (see [23]).