Australia, June 11 -- New South Wales Land and Environment Court issued text of the following judgement on May 12:

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA-2023/481 (DA) by Wollongong City Council (Council). The DA relates to land at 200, 220 and 330 Marshall Mount Road, Marshall Mount and 240 Marshall Mount Road, Avondale comprising Lots 1 and 2 in DP 1277366, Lot 5 in DP 1280030 and Lot 1 in DP 1280028 (site). The site falls within the West Dapto urban release area.

Conciliation and agreement between the parties

2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. The conference was held on 6 May 2025. Prior to the conference, and after considerable dialogue between the parties, the parties had come to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the DA, as amended, in accordance with agreed conditions.

Pre-requisites to the exercise of the function to grant development consent

3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

4. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties' agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [63], [65]). Ultimately, I find that there are none. But there are certain statutory queries 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 jurisdictional statement, as finalised on 6 May 2025 (JS).

Concept development application

5. The DA, lodged pursuant to Div 4.4 of the EPA Act, is a concept development application. In relation to concept development applications s 4.22 of the EPA Act provides as follows:

4.22 Concept development applications

(1) For the purposes of this Act, a concept development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for the site or for separate parts of the site are to be the subject of a subsequent development application or applications.

(2) In the case of a staged development, the application may set out detailed proposals for the first stage of development.

(3) A development application is not to be treated as a concept development application unless the applicant requests it to be treated as a concept development application.

(4) If consent is granted on the determination of a concept development application, the consent does not authorise the carrying out of development on any part of the site concerned unless-

(a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or

(b) the concept development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent.

The terms of a consent granted on the determination of a concept development application are to reflect the operation of this subsection.

(5) The consent authority, when considering under section 4.15 the likely impact of the development the subject of a concept development application, need only consider the likely impact of the concept proposals (and any first stage of development included in the application) and does not need to consider the likely impact of the carrying out of development that may be the subject of subsequent development applications.

6. The DA sets out concept proposals for the development of the site; with detailed proposals for separate parts of the site to be the subject of a subsequent development application or applications (s .4.22(1) EPA Act).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196b211e15f838fc20e71dd3)

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