Posted on May 15, 2026 by Dimitrious Havadjia and Lindsay Taylor 1

Court of Appeal Confirms Role of Commissioners in Section 34 Agreements

In Class 1, 2 and 3 appeals in the Land and Environment Court (LEC), it is common for parties to reach an agreement in a conciliation conference on the issues in dispute prior to the final hearing and enter into a written agreement pursuant to s34(3) of the Land and Environment Court Act 1979 (LEC Act). These are often referred to as ‘s34 agreements’.

Once a s34 agreement is filed with the LEC, s34(3) of the LEC Act requires the LEC to dispose of the proceedings in accordance with the agreement as long as the decision is one the LEC ‘could have made in the proper exercise of its functions.’ It is well understood that this means the Court must be satisfied of its jurisdiction and need not consider the merits of the application.

Joseph v Spencer [2026] NSWCA 46

In Joseph, the NSW Court of Appeal considered the role of a Commissioner of the LEC’s when considering a s34 agreement. The case dealt with a number of other matters but this post focuses on the Court’s findings regarding the extent of independent enquiry a Commissioner is expected to make once an agreement has been filed.

An objector to a proposed development that was subsequently granted consent by a Commissioner of the LEC following a s34 agreement entered into between the Council and the applicant sought judicial review and declaratory relief from the Court of Appeal challenging the Commissioner’s acceptance of the s34 agreement reached between the parties.

In a unanimous decision, the Court of Appeal dismissed the objector’s claim.

The Court considered the statutory context of s34 agreements and earlier decisions of the Court and found that once a s34 agreement is filed, a Commissioner is not ‘required under s 34(3) of the LEC Act to carry out an evaluative exercise taking into account matters which may be relevant at a substantive hearing of Class 1 proceedings’ and ‘It would be antithetical to the purpose and context of s 34… if a Commissioner were required to interrogate the Court file, search for material which might bear on jurisdictional constraints, or evaluate competing contentions or opinions in the material filed with the Court before disposing of the proceedings.’ 

The Court found that while a Commissioner can choose to consider additional material, they are entitled to rely upon the materials provided by the parties to finalise the agreement to satisfy themselves that the s34 agreement is lawful ‘Provided there is nothing on the face of that material that undermines its reliability or otherwise suggests that it insufficient for this purpose.’

The Court also disagreed with the objector’s contention that the public interest is a relevant consideration when a Commissioner exercises their function under s34(3) of the LEC Act.

Implications

When filing s34 agreements, parties will usually provide a document called a ‘jurisdictional statement’ to the LEC that sets out why the orders in accordance with the agreement can lawfully be made.

Based on this case, a Commissioner will not fall into error by relying on that document as long as there is nothing on its face that undermines its reliability.

Therefore, parties should take care to ensure that the matters raised in the s34 agreement materials (including any jurisdictional statement) are accurate and reliable, so as to protect any decision made by a Commissioner on the basis of those materials from legal challenge.

The full text of the judgment can be found here: Joseph v Spencer [2026] NSWCA 46.

If you have any questions, please contact Dimitrious Havadjia or Dr Lindsay Taylor.