Australia, June 24 -- New South Wales Land and Environment Court issued text of the following judgement on May 23:

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a five (5) storey shop top housing development containing two (2) commercial units, thirteen (13) apartments and basement parking at 1025 Botany Road, Mascot (Lots 2 and 3 in Section 2 DP 4089). The applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of the subject development application on 15 August 2024. In exercising the functions of the consent authority on 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 [28] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. 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 11 February, 26 February, 13 March and 1 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 recorded in a signed agreement filed on 29 April 2025.

4. The agreement follows the Council's approval of an application for an amendment to the development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). Amendments to the plans were made and additional documentation submitted to address the contentions identified by the Respondent. In particular the proposal was amended to remove one level and the proposed basement car parking. This resulted in an amended proposal comprising the construction of a four (4) storey shop top housing development containing two (2) commercial units, nine (9) apartments and at grade parking.

5. The original proposal was integrated development in accordance with s 4.46 of the EPA Act as it required an approval under the Water Management Act 2000. The deletion of the proposed basement means that the proposal is no longer integrated development and an approval under the Water Management Act 2000 is no longer required.

6. The decision agreed upon in the parties' agreement 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 Jurisdictional Statement, which sets out the jurisdictional requirements for the making of orders in accordance with the agreement. I have considered the contents of the Jurisdictional 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.

7. 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. I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons outlined below.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196ebbade963983027bf5632)

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