The Land and Environment Court’s decision in Billyard Avenue Developments Pty Limited v The Council of the City of Sydney serves as a powerful reminder of the importance of adhering to planning controls and understanding the boundaries of consent orders.

Consent orders vs a Section 34 Agreement

Consent orders are formal orders issued by the Court based on an agreement reached between the parties, but they require the Court to satisfy itself through a merit assessment that the proposed development complies with planning laws, aligns with planning objectives, and is in the public interest. The Court must also ensure that its decision is lawful and it has jurisdiction to grant the orders.

This is distinct from a Section 34 agreement under the Land and Environment Court Act 1979, which documents the orders the parties consent to following a conciliation conference. In the case of a Section 34 agreement, the Court’s role is limited to ensuring that the decision is lawful, that it has jurisdiction to grant the orders, and that proper processes were followed. The Court does not undertake a merit assessment of the development itself.

This key difference highlights the heightened scrutiny involved in consent orders, compared to the more procedural oversight of Section 34 agreements.

The judgment in Billyard Avenue Developments v The Council of the City of Sydney marks the first refusal of consent orders in over seven years, a rarity that underscores its significance for councils and developers alike.

What was this about and why was consent refused?

The appeal concerned a development application for the demolition of two residential flat buildings and the construction of two new ones at Billyard Avenue and Onslow Avenue, Elizabeth Bay. The proposal sought to provide modern, high-amenity housing but came with challenges, including breaches of the Sydney Local Environmental Plan’s building height controls.

Despite negotiations, expert agreements, and amendments to the plans, the Court ultimately dismissed the appeal, finding that the proposed development:

1. contravened building height standards.
2. failed to align with the objective of the R1 General Residential zone to “provide for the housing needs of the community.”
3. reduced the overall housing supply and the availability of affordable dwellings in a locality already under housing pressure.

The refusal stemmed from the Court’s finding that the development would decrease the availability of housing that met community needs. While the applicant submitted that the proposal aligned with housing diversity objectives, the Court emphasised that it failed to address the broader housing crisis by reducing affordable housing stock.

Moreover, the Court highlighted that granting consent orders under these circumstances would undermine the principles of public interest and planning integrity.

Key Takeaways

This judgment provides several lessons for parties involved in development appeals, especially when seeking consent orders:

1. Breaches of development standards, such as height controls, must be justifiable under planning law. Unsupported contraventions risk refusal, even with consent orders in place.
2. Applications that fail to provide or preserve housing that meets community needs – especially affordable housing – may be found to not align with public interest objectives.
3. Consent orders are not a guarantee of approval. The Court has a statutory obligation to ensure that proposed developments comply with planning objectives, regardless of agreement between parties.
4. When negotiations stall or significant objections arise, parties should seek legal advice early. This case highlights how unresolved issues can lead to costly outcomes.

This case marks the first refusal of consent orders in over seven years, underscoring its importance.

Read more

A copy of the full judgment can be read below.