Essential Guide to Residential Development Appeals under s.34AA

Many Council officers would be familiar with development appeals in the Land and Environment Court of NSW. In these proceedings, the Court “stands in the shoes” of the consent authority and determines whether consent should be granted to a development application which has been refused or deemed to be refused. However, Council officers may be less familiar with the streamlined process which applies to some residential developments under s.34AA of the Land and Environment Court Act 1979 (the Act). This guide addresses the key aspects of that process, and important differences between these proceedings and ordinary development appeals.

When does s.34AA apply?

The residential development appeal process in s. 34AA of the Act applies where development is for the purpose of:

1. detached single dwellings and dual occupancies (including subdivisions); or
2. alterations or additions to such dwellings or dual occupancies.

The purpose of development is the end which the land use serves. Accordingly, development which is ancillary to a detached single dwelling or dual occupancy will still be for development for that purpose and s.34AA will apply.

There is also scope for parties to agree for the streamlined process to apply to other development, or for the Court to order that an appeal be dealt with under s 34AA. Conversely, the Court may, at any stage of the proceedings, determine that an appeal is not to be dealt with, or continue to be dealt with, under the streamlined process if that is considered appropriate in the circumstances of the case.

If s 34AA applies to an appeal, the proceedings will be subject to the Court’s Practice Note Class 1 Residential Development Appeals.

The 34AA process

The Court’s ordinary process in a development appeal is to list the proceedings for a conciliation conference and, if they are not resolved at that conference, to then list the matter for a contested hearing at a later date.

A conciliation conference is an opportunity for the proceedings to be resolved by agreement and is presided over by an officer of the Court, usually a Commissioner. The conference will generally commence onsite, where there is an opportunity for objectors to the development to address the parties and the Court. The parties then proceed to have confidential, without prejudice discussions, often considering amended plans and information prepared by the applicant. If those discussions are successful, the parties can enter into an agreement under s 34 of the Act which is then made by the Court. s.

The conciliation process is mandatory for residential appeals. However, one of the key differences in residential development appeals is that, if no in principle agreement is reached to resolve the appeal at the conciliation conference then, unless the Commissioner who presides over the conciliation conference determines otherwise, the proceedings must:

1. Immediately proceed to a hearing; or
2. If the parties’ consent, be determined on the basis of what has occurred at the conciliation conference.

This process therefore removes several steps in the ordinary development appeal process, including a second directions hearing. This means that there is a more limited opportunity for applicants to amend the proposed development once the appeal has been commenced. Where an applicant does amend their development application in the course of the proceedings, the Court is not required to make an order for the applicant to pay the costs of the Council that have been “thrown away” as a result of the amendment under s 8.15(3) of the Environmental Planning and Assessment Act 1979. This order is required in ordinary developments appeals where there is more than a minor amendment to the development application.

The s 34AA process means that residential appeals will ordinarily be listed for multiple days to allow sufficient time for a contested hearing to take place if agreement is not reached at the conciliation conference stage . It also means that the steps necessary to prepare for a hearing, which in an ordinary appeal usually take place in the months after a conciliation conference, must be done before this listing. This includes:

1. Preparing expert evidence, usually by way of joint conferencing of the parties’ experts and the filing of a joint expert report;
2. Preparing draft conditions of consent;
3. Preparing submissions.

This material needs to be prepared in addition to the parties undertaking the usual steps which precede a conciliation conference, which include the provision of without prejudice information by the Applicant and a response by the Council. If the matter is resolved under s 34 of the Act without proceeding to a contested hearing then the expert evidence and submissions which had been prepared for the hearing will not strictly be required.

Conclusion

The streamlined process under s 34AA of the Act aims to “fast track” merits review proceedings for small scale residential developments to achieve time and cost savings for both parties and the Court. [1] However, whether it deliveries these efficiencies varies depending on the matter. Where an appeal proceeds to a contested hearing, the proceedings are generally resolved more efficiently and cheaply via the s.34AA pathway than if there was a separate conciliation conference and hearing. However, if a matter ultimately settles at the conciliation stage, the parties will have incurred time and costs in preparing evidence and submissions which are ultimately not used.

More Information

For more information, or for assistance in development appeals, contact Victoria McGinness in the Planning, Environment & Local Government team.

Please note that the information detailed in this Essential Guide is current as at 12 March 2025. The content contained in this guide is not legal advice, readers should contact us and receive our specific advice on the particular situation that concerns them.

[1] Planning Appeals Legislation Amendment Bill 2010, Second reading speech