Section 34 conciliation conferences play a critical role in the Land and Environment Court appeal process, offering applicants a genuine opportunity to resolve development disputes without proceeding to a full hearing. They allow both the applicant and council to work collaboratively, guided by a Court Commissioner, to explore practical solutions, refine designs, and address issues that led to the refusal.
Many applicants find the process unfamiliar or daunting, so this article aims to demystify what actually happens during an S34 conference, from preparation and attendance to expected outcomes and costs, helping you understand what to expect and how to approach it with confidence.
What is a S34 Conference?
A Section 34 Conciliation Conference is part of the formal Class 1 appeal process in the NSW Land and Environment Court (LEC), typically following the refusal or deemed refusal of a Development Application (DA). It provides a valuable opportunity to resolve planning disputes through collaboration rather than proceeding to a full court hearing.
Once an appeal is lodged, the consent authority (often the local council) prepares a Statement of Facts and Contentions (SOFAC) outlining the reasons for refusal. The applicant may then submit amended plans or additional information responding to those issues, which are reviewed prior to the conference.
The S34 Conference itself operates much like a mediation, where both parties, guided by a Court Commissioner, work together to identify solutions, negotiate outcomes, and potentially reach agreement on a revised development proposal. It is common for further information to be requested within two weeks following the meeting, with an online follow-up session often scheduled to confirm next steps.
Who Attends the Conference?
A Section 34 Conference brings together all key parties involved in the development appeal to ensure that technical, legal, and planning matters can be properly addressed.
Typically, in attendance are:
- The applicant (and/or landowner)
- Specialist consultants relevant to the proposal, such as the town planner, architect, engineer, traffic, or environmental consultant
- Council officers and/or appointed planning or technical consultants representing the consent authority
- Each party’s legal representatives, which may include a solicitor or barrister experienced in planning and environmental law
- A Commissioner of the Land and Environment Court, who acts as an independent mediator, guiding discussions and assisting the parties to reach a potential resolution
This combination of participants ensures that both the planning and legal aspects of the application are considered comprehensively during the conciliation process.
How is the Conference Run?
A Section 34 Conference follows a structured but collaborative process designed to resolve planning disputes efficiently before a full court hearing is required.
The conference typically begins on the subject site, allowing the Commissioner and all parties to gain a clear understanding of the site’s physical characteristics, surrounding context, and any environmental or design constraints. From there, the conference may progress to Council chambers or remain on-site if the arrangements are sufficient and agreed upon by both parties.
During the conference, specialist consultants from the relevant disciplines, such as the town planner, architect, engineer, traffic, or environmental consultant, attend as expert witnesses to provide technical input and assist in resolving outstanding issues.
As the conference is a court-convened process under Section 34 of the Land and Environment Court Act, it is facilitated by a Court Commissioner who acts as the mediator. Both parties are generally represented by their legal counsel, which may include a lawyer, Senior Counsel, or barrister, who review and interpret the Statement of Facts and Contentions (SOFAC) and assist in the preparation of any consent proposal.
The conciliation discussions focus on identifying areas of agreement, exploring design or condition amendments, and negotiating practical outcomes. If consensus is reached, the Commissioner may make consent orders to finalise the matter. If not, the conference concludes with directions for the next procedural steps toward a contested hearing.
What is the Role of an Expert?
Experts provide the technical evidence and professional insight needed to clarify planning, design, or environmental issues during a Section 34 Conference.
Before the conference, each expert, such as the town planner, engineer, or environmental consultant, reviews the Statement of Facts and Contentions (SOFAC), assesses the key issues, and prepares their professional opinions.
During the conference, experts respond to questions, explain their assessments, and work with legal counsel and the applicant’s team to refine plans or conditions. Their role is to offer independent, evidence-based advice, helping the parties find practical and technically sound solutions.
Common Applicant Questions and Concerns
Applicants often approach a Section 34 Conference with a degree of uncertainty about what to expect and how the process will unfold. One of the most common questions is whether they need to attend. The answer is yes, the applicant or landowner’s presence is important, as their input and instructions are essential during negotiations and discussions with the Commissioner and other parties.
Another frequent concern is whether legal representation is required. While it is not mandatory, it is highly recommended that applicants engage a lawyer or barrister experienced in planning law to help interpret the Statement of Facts and Contentions (SOFAC), present their case effectively, and negotiate appropriate outcomes.
Applicants also often ask what happens if an agreement isn’t reached. In that case, the matter simply proceeds to a contested hearing before the Court, where a Commissioner or Judge makes a final determination. It’s also common to wonder whether plans can be amended before or during the conference, this is entirely possible and often encouraged. Providing amended plans or additional information can help address key concerns raised by the consent authority and demonstrate a willingness to resolve issues.
Finally, many applicants want to know how long the process takes. A typical conference runs for half a day to a full day, followed by a two- to three-week period for any requested revisions or follow-up discussions. Overall, the Section 34 process is designed to be collaborative rather than adversarial, offering applicants a practical opportunity to resolve planning issues early, efficiently, and often more cost-effectively than proceeding to a full court hearing.
Tips for Applicants Attending Their First S34 Conference
Attending a Section 34 Conference for the first time can feel daunting, but with the right preparation and understanding of the process, it can be a constructive and even positive experience.
Start by reviewing all documentation carefully, particularly the Statement of Facts and Contentions (SOFAC), as this outlines the issues the consent authority has raised. Make sure your consultants and legal representatives are briefed, coordinated, and clear on your objectives and any areas where flexibility may be possible. Being prepared to discuss and negotiate on design changes, mitigation measures, or consent conditions can significantly improve your chances of reaching agreement.
On the day, approach the process with an open and cooperative mindset. The conference is intended to be conciliatory rather than adversarial, so showing a willingness to collaborate and consider reasonable amendments is viewed positively by both the Commissioner and the other party.
Finally, understand that not every matter will be resolved on the day. It’s common for additional information or revised plans to be requested within a short timeframe after the meeting. Staying responsive and proactive in providing this material can help maintain momentum and move the matter toward a favourable outcome.
What Happens If the Parties Don’t Agree?
If the parties are unable to reach an agreement during the Section 34 Conference, the matter simply progresses to the next stage of the Land and Environment Court process. In this case, the conciliation is formally terminated, and the Commissioner will issue procedural directions to prepare the matter for a contested hearing.
At this stage, both sides refine their evidence and arguments. The applicant’s and council’s consultants may be called as expert witnesses, and legal representatives will present their respective cases before the Court. The Commissioner or Judge then makes a final determination, based on the evidence and planning merit of the proposal.
While not every matter settles through conciliation, the conference process is still valuable, it often helps narrow the issues in dispute, clarify technical matters, and streamline the subsequent hearing.
Making the Most of Your Section 34 Conference
A Section 34 Conciliation Conference can feel complex at first, but it is ultimately a valuable and collaborative part of the Land and Environment Court appeal process. It offers applicants a genuine opportunity to resolve planning disputes early, often saving significant time, cost, and uncertainty compared to a full hearing.
By approaching the process with preparation, openness, and the right professional guidance, applicants can achieve practical and often positive outcomes for their projects. If you’re unsure about any part of the process or how to prepare, our team is always available to answer questions, clarify expectations, and help you navigate your next S34 Conference with confidence.
Get in touch today via our online form or call us on 9056 1900, we’re here to help you clarify your next steps, or get expert help preparing for your upcoming Section 34 Conference.