Background
Australian Native Landscapes Pty Ltd operates a waste and resource management facility at 12 Pindimar Road, Tea Gardens, New South Wales. The site, zoned RU2 Rural Landscape under the Great Lakes Local Environmental Plan 2014, already held approval for organics processing. The company lodged Development Application No. 2024/0689 seeking a change of land use to introduce the receival of Food Organics and Garden Organics (FOGO) at up to 50,000 tonnes per annum (tpa), while reducing wood waste intake to 100,000 tpa and keeping the total organics intake steady at 150,000 tpa.
When Mid-Coast Council failed to determine the application within the statutory timeframe, the DA was deemed refused, and Australian Native Landscapes appealed to the Land and Environment Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW). The proposed development constituted designated development because it would process more than 5,000 tonnes per year of organics, requiring an environmental impact statement and public exhibition. During the appeal, the applicant amended the DA — incorporating a Water Cycle Management Strategy prepared by Martens Pty Ltd — which prompted Council to award costs thrown away against the applicant for those amendments.
A conciliation conference was convened on 26 May 2026 under s 34 of the Land and Environment Court Act 1979 (NSW), presided over by Acting Commissioner Young. The parties reached agreement on the terms of a decision that would be acceptable to both sides, including conditions of consent set out in Annexure A.
The Court’s Holding
Acting Commissioner Young upheld the appeal and granted development consent to DA 2024/0689, being satisfied that the parties’ agreed decision was one the Court could have made in the proper exercise of its functions as required by s 34(3) of the Land and Environment Court Act 1979 (NSW). The Court confirmed that the proposed development was permissible under the Transport and Infrastructure SEPP 2021, which allows waste and resource management facilities in prescribed zones including the RU2 Rural Landscape zone, notwithstanding that the local environmental plan would not otherwise permit such use. The Court accepted that all mandatory jurisdictional prerequisites — including zoning permissibility, owner’s consent, public notification, designated development procedures, and consideration of the s 4.15 EPA Act matters — had been satisfied.
On the integrated development issue, the Court noted that the NSW Environment Protection Authority had not formally refused to issue general terms of approval for a variation to the existing Environment Protection Licence, though it had not yet done so pending further information. Relying on s 8.14(4) of the EPA Act, the Court held it could make orders in accordance with the s 34 agreement even in the absence of such general terms, while making clear that a licence variation would still be required before the development could lawfully commence.
The Court also ordered that Australian Native Landscapes pay Mid-Coast Council’s “costs thrown away” of $20,000 within 28 days, pursuant to s 8.15(3) of the EPA Act, in connection with the amendments made to the DA during the course of the appeal. An earlier procedural order made on 8 May 2026 was vacated.
Key Takeaways
- A State Environmental Planning Policy (here, the Transport and Infrastructure SEPP 2021) can override a local environmental plan to permit waste and resource management facilities in rural zones where the LEP would otherwise prohibit them.
- Under s 8.14(4) of the EPA Act, the Land and Environment Court may grant development consent on appeal even where an integrated approval body (such as the EPA) has not yet issued general terms of approval, provided it has not formally refused to do so — though any required licence variation remains a precondition to commencing work.
- Where a DA is amended during the course of an appeal, the Court may order the applicant to pay the respondent council’s “costs thrown away” attributable to those amendments under s 8.15(3) of the EPA Act, even when the appeal is otherwise upheld.
- Parties who reach agreement at a s 34 conciliation conference and satisfy the Court’s jurisdictional prerequisites can obtain consent without the Court conducting a full merit assessment under s 4.15(1) of the EPA Act.
Why It Matters
This decision illustrates the growing role of Food Organics and Garden Organics processing in New South Wales waste infrastructure and the planning pathway available to operators seeking to expand or diversify existing facilities. It confirms that the Transport and Infrastructure SEPP 2021 provides a viable permissibility gateway for waste and resource management facilities in rural zones, and that the Land and Environment Court’s s 34 conciliation process can efficiently resolve deemed-refusal appeals — including for designated development with complex environmental assessment requirements — once parties reach agreement on conditions.
The costs order against the successful applicant serves as a practical reminder that amending a development application during appeal proceedings carries financial consequences, regardless of the overall outcome. For practitioners advising waste facility operators, the decision also underscores that EPA licence variations remain a hard prerequisite to commencing any approved FOGO processing, notwithstanding a favourable court order.