Update – Interesting Land and Environment Court cases

Three interesting cases have recently been handed down by the Land and Environment Court, covering planning issues that are always first at mind with councils and developers alike.

·         Jurisdictional Statements and Resident Objectors (Joseph V Spencer)

·         Application of DCP controls (Patel v Ku-ring-gai Council)

·         Interpretation of Consents and Conditions, Lapsing of Consents (Wollondilly Shire Council v Godfrey)

In this article, we discuss the background to each case, consider the decision and provide key takeaways.

Joseph v Spencer [2026] NSWCA 46

Background

The Applicant, Mr Michael Joseph, once again sought judicial review and declaratory relief in the NSW Court of Appeal (having already done so in 2025), seeking to have Commissioner Dickson’s decision to grant consent to Ricardo & Jennifer Spencer’s 2023 development application (the DA) for alterations and additions to their Kiama home quashed.

The DA was originally refused by Kiama Council, largely due to non-compliance with cl 6.7 of the Kiama Local Environmental Plan 2011 (KLEP). The Spencer’s appealed Council’s refusal to Class 1 of the Land and Environment Court, where the matter was set down for a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act).

At the conciliation conference, the parties (being the Spencers and Kiama Council) reached an agreement, and the proposed development was deemed to be an exception to cl 6.7 of the KLEP. Subsequently, the parties agreed to terms and produced an agreement under s 34(3) of the LEC Act, being a ’decision that the Court could have made in the proper exercise of its functions’. In support of this agreement, and so that the Commissioner could be satisfied that the decision was one that could be made by the Court, the parties provided a jurisdictional note. Commissioner Dickson was satisfied that the Court could make the agreed decision and granted consent to the DA subject to the agreed conditions.

Mr Joseph, an objector to the DA, filed an amended summons on 26 June 2025 seeking review of the Commissioner’s decision on the grounds (among others) that there had been a denial or procedural fairness and abuse of process in Council’s, and legal unreasonableness in the Court’s, approaches to cl 6.7 of the KLEP, that the Commissioner had erred in relying on the jurisdictional note provided by the parties in determining whether the Court could make the agreed decision, and that the Commissioner should also have considered some merits issues like those in cl 6.6 of the KLEP.

Decision

The Land and Environment Court dismissed the appeal.

The Court held that:

• Council was not obliged to inform the Applicant of their change in approach to cl 6.7 of the KLEP, and there was no errors in the Council’s change of approach, nor Commissioner Dickson’s interpretation of the provision: [92], [131]
• Objectors are not intended to be parties to the s 34 conference process and are not intended to have any say in whether the terms of agreement and resolution of the proceedings are appropriate and acceptable: [43], [128].
• The Commissioner was satisfied of all necessary jurisdictional points, having considered the jurisdictional note, and was right to consider it: [105] – [111]
• When disposing of proceedings in accordance with an agreement under s 34(3) of the LEC Act, the Commissioner need only be satisfied that the material before them satisfies any jurisdictional constraint, they are not to undertake a review of any merits of the decision: [35], [140] citing McMillan v Taylor (2023) 111 NSWLR 634.

Key takeaways

1. Objectors are not privy to the terms of agreement and approaches adopted by parties when coming to an agreement in a s 34 conference.
2. Jurisdictional notes or statements are to set out the jurisdictional matters and constraints for the Court. In considering the jurisdictional note or statement, the Commissioner need only be satisfied that the decision is one the Court could make, not that it is one that the Court should make if it was to undertake a merits review. The Court is not, in this process, to consider a provision of an environmental planning instrument which does not contain a prohibition or jurisdictional constraint.

Patel v Ku-ring-gai Council [2026] NSWLEC 1207

The significance of this case is that the Commissioner gave determinative weight to the proposal’s non-compliance with DCP side building setbacks and refused the DA.

The proposal was for a centre based childcare centre at 16 Burns Road, Wahroonga.  The site was within the Wahroonga Heritage Conservation Area (HCA) and shared a western boundary with the local heritage item, Hazeldean, a ‘grand residence’.  The surrounding suburban development comprised predominantly one to two storey dwelling houses within an established landscaped setting.

The Commissioner noted that, by virtue of control 11 of Part 4A.2 of the Ku-ring-gai Development Control Plan (KDCP), the side setback control for the site is 2.01m.  This control applies to childcare centres in low density residential areas via control 2 of Part 10.2 of the KDCP.  Control 1 of Part 4A.2 of the KDCP provides that basement areas are to be consolidated under the building footprint and meet all building setback requirements.

The proposed upper level of the basement to the childcare building extended to both the eastern and western boundaries of the site.  On the western boundary, the top of the slab roof of the basement carpark was RL183.326, and the top of the raised planter bed was RL184.333.  This meant that the basement and planter structure projected approximately 1.3m above existing ground level along the shared boundary with Hazeldean.  Three trees, identified as having moderate retention value and located adjacent to the shared boundary with Hazeldean, were proposed to be removed to allow for construction of the driveway and basement.  The new plantings along the boundary would not, in the Commissioner’s opinion, ’ameliorate the detrimental impact of the raised structure on the shared boundary’.

Before refusing the DA, the Commissioner found that [43]:

The incursion of the basement and planter structure into the western side setback [with Hazeldean] results in an unreasonable amenity impact on Hazeldean, as the wall of the structure is 1.3m above existing ground level along the shared boundary, immediately adjacent to the driveway, carport and eastern elevation of this grand residence. The incursion of the driveway and structure into the side setback [with Hazeldean] requires the vegetation, including those mature trees close to the western boundary, to be removed, which results in a detrimental impact on the established landscaped setting of Hazeldean and the [Wahroonga Heritage Conservation Area].

This decision is a reminder that DCP side setback controls can be determinative in a hearing where a development is within an HCA, is close to or adjacent to a heritage item, and is surrounded by an established landscaped suburban setting.

Wollondilly Shire Council v Godfrey and Ors [2026] NSWLEC 21

In these Class 4 proceedings, Wollondilly Shire Council sought declaratory and injunctive relief against Mr Godfrey, the First Respondent and sole director of each of the Second and Third Respondents, in relation to alleged unauthorised development on land at 28 Wonga Road, Picton. Since at least 1997, Mr Godfrey used the land as a sand and soil yard. Council contended that the Respondents had engaged in various unauthorised activities, between 2009 and 2024, resulting in impacts to neighbours including dust and noise.

Various consents were before the Court for consideration, including consents granted by Council in 1994, 1997, 2000, and a consent granted by the Court in 2007. The parties agreed the 1994 Consent applied to the land, which granted consent for the Respondent’s use of a shed on the land for storage of earthmoving equipment. It was also agreed that the Court-granted 2007 Consent, which was not taken up by Mr Godfrey, had lapsed and no longer applied.

It was contentious whether the 1997 Consent and the 2000 Consent continued to apply to the site, or whether they had lapsed. It was Council’s submission that they had never been lawfully commenced due to Mr Godfrey’s failure to comply with the conditions of Consent, and accordingly the Consents had lapsed.

Robson J, distinguishing between the terms contained in ss 4.53(4) and 4.53(5) of the Environmental Planning and Assessment Act 1979 (EPA Act), considered that the 1997 Consent and the 2000 Consent were consents for the use of land rather than for ’building, subdivision or work’. It followed that despite that Mr Godfrey failed to comply with various the conditions of the 1997 and 2000 Consents, those non-compliances did not preclude the commencement of the uses authorised under those consents pursuant to the construction of those conditions. Accordingly, the uses authorised under the consents had been lawfully commenced within the meaning of s 4.53(5) of the EPA Act within the relevant period, and did not lapse.

However, the above findings did not save the Respondent. Robson J went on to consider the lawfulness of the Respondent’s use of land over time, with regard to the 1994, 1997 and 2000 Consents, and found that the Respondents had engaged in a suite of unauthorised activities between 2010 and 2024.

Robson J also considered that the unauthorised works were beyond mere technical breaches; that Mr Godfrey decided not to proceed under the Court-granted 2007 Consent; and that Council had sought to contain the Respondents’ operations over many years, with ongoing concerns expressed by residential neighbours. Little evidence was brought by way of explanation or to demonstrate hardship.

Robson J made various declaratory and injunctive orders, and costs in favour of Council.

Key takeaways

This case serves as a reminder, when drafting conditions of consent, to consider whether the consent is for the ’use’ of land, or for ’building, subdivision or work’. If the consent is for the use of land, then lawful commencement of the consent could occur despite non-compliances with various conditions of consent, if non-compliance with those conditions does not preclude the commencement of the use. In those circumstances, declaratory or injunctive relief may still be available for activities that have been done not in accordance with, or without development consent.