Australia, June 2 -- New South Wales Land and Environment Court issued text of the following judgement on May 2:

1. COMMISSIONER: This appeal concerns a development application for the construction of a new residential care facility and a new independent living unit facility, together with works in a mix-used complex containing those new buildings in addition to an existing church and community hall, at 7-13 Bellevue Road and 38-40 Princes Highway, Figtree. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. Following an adjournment of the hearing, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17 April 2025. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was provided on the same date, and a final agreement was filed on 28 April 2025. The agreement includes an order that the Court exercise the functions of the consent authority, pursuant to s 39(2) of the LEC Act, to agree to an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amended development application was filed on 17 April 2025 and has reduced height, floor space ratio (FSR) and unit numbers from what was originally proposed, and it includes a culvert for managing the overland flow during storm events, as well as a landscape design for the open space areas.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Statement of Jurisdictional Prerequisites that sets out the jurisdictional prerequisites to the exercise of the power to approve the development application. I have considered the contents of the Agreed Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties' have agreed upon (see McMillan v Taylor [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

1) Development for the purpose of seniors housing is permissible in the R2 Low Density Residential zone in which the site is located, pursuant to the Wollongong Local Environmental Plan 2009 (WLEP).

2) Chapter 3 Pt 5 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) concerns housing for seniors and people with a disability and therefore applies to the proposed development. Having regard to the savings provision in Sch 7A(3), the version of the SEPP Housing that was in force immediately prior to 14 December 2023 applies to the development application (except in relation to Ch 4 concerning building height and FSR). Other than the height and FSR standards, the proposed development complies with the discretionary and non-discretionary development standards contained in ss 84-91, 107-108 of the SEPP housing.

*Rest of the document can be viewed at: (hhttps://www.caselaw.nsw.gov.au/decision/19684aca4d938ccefc93d7da)

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