Background
HK & AR Investments Pty Ltd appealed against Blacktown City Council’s deemed refusal of DA-25-01968 under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW). The amended application sought consent for two quick service restaurants, each with a drive-through, 47 parking spaces, landscaping and associated works at 308 Wianamatta Parkway, Ropes Crossing.
The parties held a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW), adjourned it to allow amended plans and conditions, and then filed an agreement for consent. The site was biodiversity-mapped, bushfire-prone, adjoining a regional park zone, and subject to planning controls concerning signage, vegetation, contamination, stormwater and sustainable buildings.
The Court’s Holding
Acting Commissioner Swan upheld the appeal and granted development consent subject to the agreed conditions in Annexure A. The Court found that the parties’ agreement satisfied the requirements for a s 34 disposition: the parties had agreed on the decision, and it was a decision the Court could properly make.
The Court accepted that the jurisdictional requirements had been addressed. The biodiversity assessment supported the conclusion that the project would not have serious and irreversible biodiversity impacts, while conditions required retirement of biodiversity credits. The Court also accepted the parties’ positions on bushfire measures, consultation with National Parks and Wildlife Service, vegetation removal, signage, contamination, servicing and other applicable planning controls.
Key Takeaways
- A deemed-refusal appeal can be resolved through a s 34 conciliation agreement when the agreed outcome is one the Court could lawfully make.
- Conditions of consent required biodiversity-credit retirement and compliance with bushfire and National Parks and Wildlife Service requirements.
- The Court did not independently make merits findings on the discretionary s 4.15 assessment matters originally in dispute.
Why It Matters
The decision illustrates the Land and Environment Court’s role in giving effect to negotiated development outcomes after confirming statutory preconditions and jurisdictional requirements. It also shows that substantial amendments to a proposal—including reduced signage and revised environmental material—can support a consent outcome during conciliation.