What has happened?
Most Class 1 development appeals in the Land and Environment Court are resolved by agreement at a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act). In Joseph v Spencer [2026] NSWCA 46, the Court of Appeal dismissed a neighbour's challenge to a development consent granted in this way.
Context
Under s 34(3), a Commissioner must give effect to the parties' agreement if it is a decision the Court "could have made in the proper exercise of its functions". In practice, this means the Commissioner must be satisfied that any legal preconditions to granting consent (often called jurisdictional prerequisites) are met.
Here, the owners and Kiama Municipal Council agreed that the owners' appeal should be upheld and consent granted to an amended development application. A neighbour, who had unsuccessfully sought to be joined to the appeal, sought judicial review. The neighbour argued, among other things, that:
the Commissioner had not properly formed the satisfaction required by a clause of the local environmental plan;
she had wrongly relied on a "jurisdictional note" prepared by the parties; and
the Council, having refused the original application, had no power to agree to an amended one.
The decision
The Court of Appeal rejected every ground. Its key findings were:
Conciliation is designed to resolve smaller planning disputes cheaply and by agreement. Parliament did not intend objectors to have a say in whether the parties' agreement is acceptable.
A Commissioner may ordinarily rely on the material the parties provide, including a jurisdictional note, unless something on its face suggests it is unreliable or insufficient.
The Commissioner needs to identify the planning controls that must be satisfied, explain how she was satisfied of them, and state that satisfaction. She is not required to evaluate all the material filed in the proceedings, or the public interest, as she would at a contested hearing.
The Council's earlier refusal did not prevent it agreeing to an amended application on appeal.
How will this affect you?
Consents granted through s 34 agreements are robust, provided the jurisdictional prerequisites are properly addressed.
A clear, accurate jurisdictional note remains essential. It is the foundation on which the Commissioner's decision rests.
Neighbours who wish to be heard should raise their concerns early with the council and through the Court's processes. A later judicial review challenge will rarely succeed.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.