Court of Appeal clarifies whether development standards are jurisdictional prerequisites to the grant of development consent
On 26 April 2023, the New South Wales Court of Appeal handed down its decision in El Khouri v Gemaveld Pty Ltd  NSWCA 78 which has further clarified whether compliance with a development standard is a jurisdictional fact that must be satisfied in order to enliven the power of the Land and Environment Court to grant development consent following a s.34 conciliation conference.
In May 2020, Gemaveld Pty Ltd (Gemaveld), the registered proprietor of land (Land) located in Blakehurst, lodged a development application (DA) with Georges River Council (Council) seeking development consent for the demolition of the existing building and the erection of a new dwelling house, swimming pool and landscaping works. In October 2020, Council refused the DA.
In October 2021, Gemaveld commenced Class 1 proceedings in the Land & Environment Court (LEC) appealing the refusal of the DA.
A significant point of contention between Gemaveld and Council was the height of the proposed dwelling. The development standard for height that applied to the Land was 9 metres (Height Control) as specified in the (since repealed) Kogarah Local Environmental Plan 2012 (Kogarah LEP). The Land was unique in that it sloped steeply and unevenly down from street level towards the Georges River, making the approved height difficult to identify. Ultimately, Gemaveld provided plans which indicated that the proposed dwelling complied with the Height Control.
On this basis, Gemaveld and the Council reached an agreement at a Section 34 conciliation conference and the Commissioner of the LEC granted development consent without the matter proceeding to a hearing.
In July 2022, the neighbouring landowners (Neighbours) commenced proceedings seeking judicial review of the LEC decision. The Neighbours claimed that the grant of consent was not a decision that the Commissioner of the LEC could have made in the proper exercise of its functions — within the meaning of s 34(3) of the Land and Environment Court Act 1979 (NSW) (Court Act) — as the Height Control had not been complied with and no application had been made to vary the Height Control.
After a two-day hearing in the Supreme Court it was held that the proposed development exceeded the Height Control, but this had not been evident on the plans put before the Commissioner of the LEC. The proceedings were dismissed. The Neighbours consequently appealed that decision to the NSW Court of Appeal.
Court of Appeal
The question before the Court of Appeal was whether compliance with the Height Control in the Kogarah LEP was a pre-condition (or ‘jurisdictional fact’) necessary to enliven the Court’s power under s 34 of the Court Act to grant consent to the DA.
In considering the issue, the Court of Appeal referred to the decision in Ross v Lane  NSWCA 235, in which it was held that it is a matter for the consent authority to determine whether a planning instrument is engaged, and that the Court cannot interfere in that determination when it depends on the formation of a state of satisfaction or opinion.
The Court of Appeal held that compliance with the Height Control was not a jurisdictional prerequisite to the power to grant development consent. The Height Control was instead a mandatory consideration that the Commissioner of the LEC was required to have regard to in making a determination that the s.34 agreement between the parties was one that the LEC could have made in the proper exercise of its functions.
When granting development consent following agreement at a s.34 conciliation conference, a commissioner of the LEC must have regard to the relevant development standards in planning instruments to determine whether an agreement between the parties is one that the Court could have made, but compliance with those standards is not a precondition to the grant of consent.