Australia, June 9 -- New South Wales Land and Environment Court issued text of the following judgement:

1. COMMISSIONER: This appeal, lodged by the applicant under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), concerns the refusal by Penrith City Council (Council) of development application number DA-23/0763 (DA). The DA seeks consent for the construction of multi dwelling housing consisting of twenty-three (23) town houses with associated parking, landscaping and tree removal, drainage, road and associated works and strata subdivision.

2. The land upon which development would occur (site) is all within the suburb of St Marys and involves three land holdings. Because of certain points discussed later I need to outline certain particulars of the different holdings, as follows:

1) Lot 6 in DP882697 and also known as 22-32 Ainsbury Road - the proposed housing development would principally occur on this land.

2) Part of land currently known as Ainsbury Road and comprising Crown land - future public road access and certain services would be provided via this land.

3) Lot 1 DP739330 also known as 34 Hall Street and owned by the (NSW) Planning Ministerial Corporation (PMC) - involving land west of the proposed housing development where some ancillary development would occur and upon which a flood levee is now located.

Conciliation and agreement between the parties

3. After significant prior liaison between the parties (and a number of amendments to the DA), at the parties' request, the Court arranged a conciliation conference between them under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 1 May 2025, and at which I presided. At the conference, the parties provided evidence of, and explained, a signed agreement confirming the decision between them in regard to the outcome of the proceedings. This decision involved the Court upholding the appeal and granting development consent to the DA, as amended, to address various contentions, and subject to conditions. A bundle of documents handed to the Court during conciliation and marked EJ-4 provided a series of relevant updated documents.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is one that the Court could have made in the proper exercise of its functions. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [63],[65]). It is my finding that there are no such constraints. But there are certain queries, relating to jurisdiction, which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties' agreed statemement of jurisdictional prerequisites (ASJP) received by the Court on 1 May 2025.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196ad4e2e6922afe2eb56672)

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