Background
Design Cubicle Pty Ltd sought development consent from The Hills Shire Council for an infill subdivision at 12–14 Fleur Close, West Pennant Hills — a roughly 1.28-hectare triangular allotment containing an existing dwelling and significant environmental features including areas of Blue Gum High Forest (BGHF), a critically endangered ecological community. The proposed development would create five community title residential lots and one association lot, and involved tree removal, landscaping, new infrastructure, site preparation, and private road works. The site is zoned C4 Environmental Living under The Hills Local Environmental Plan 2019, a zone reserved for low-impact residential development in areas of special ecological, scientific, or aesthetic value.
The Council refused Development Application No. 1274/2023/ZD on 20 March 2025. Design Cubicle appealed to the Land and Environment Court in August 2025. The site presented multiple planning challenges: portions were subject to landslide risk; part of the site fell within the Biodiversity Values Map, triggering the biodiversity offsets scheme threshold under the Biodiversity Conservation Act 2016 (NSW); and limited asbestos-impacted soils were identified, requiring a Remedial Action Plan.
Following the appeal, the Court convened a series of conciliation conferences over six sessions between November 2025 and May 2026. During that process, the applicant substantially amended the development application — reducing native vegetation clearing, refining the Environmental Protection Area in consultation with the parties’ ecological experts, and filing updated engineering, arboricultural, landscape, and biodiversity assessment reports. The amended proposal had its environmental footprint significantly reduced compared to the original DA.
The Court’s Holding
Acting Commissioner Peatman upheld the appeal and granted development consent to the amended DA, acting pursuant to s 34(3) of the Land and Environment Court Act 1979 (NSW). The parties had reached agreement at the conciliation conference on 8 May 2026 as to the terms of an acceptable decision, and filed a formal agreement under s 34(3). The Commissioner was satisfied that the parties’ agreed decision was one the Court could have made in the proper exercise of its functions, and was therefore required by statute to dispose of the proceedings accordingly without conducting an independent merits review.
The Commissioner confirmed that all relevant jurisdictional prerequisites under s 4.15(1) of the Environmental Planning and Assessment Act 1979 (NSW) were satisfied. In particular, the amended Biodiversity Development Assessment Report (prepared by Keystone Ecological) was consistent with the Biodiversity Assessment Method 2020 and the Court was satisfied the development would not result in serious and irreversible impacts on biodiversity values — including BGHF comprising eleven trees within the development footprint — given the Vegetation Management Plan adopted to preserve overall biodiversity. No biodiversity offset credits were required. Geotechnical, stormwater, contamination, and land-use compatibility considerations were each addressed through expert reports and conditions of consent.
The applicant was ordered to pay the Council’s costs “thrown away” under s 8.15(3) of the EPA Act as a result of the amendments made to the DA during proceedings, to be agreed or assessed. Consent was granted subject to the conditions contained in Annexure A, which incorporated remediation, stabilisation, monitoring, and vegetation management requirements.
Key Takeaways
- A council’s refusal of a community title subdivision in a C4 Environmental Living zone was overturned on appeal after the applicant substantially reduced the development’s environmental footprint through amendment, enabling agreement at conciliation.
- Under s 34(3) of the Land and Environment Court Act, once parties reach agreement at a conciliation conference on terms that the Court could have ordered, the Commissioner is obliged to dispose of proceedings on those terms without conducting an independent merits review.
- Where a DA exceeds the biodiversity offsets scheme threshold, a Biodiversity Development Assessment Report compliant with the Biodiversity Assessment Method 2020 is required; if the BDAR concludes no credits need to be retired, no offset conditions need be imposed.
- Applicants who amend a DA during appeal proceedings may be ordered to pay the respondent’s costs “thrown away” by reason of those amendments, even where the appeal is ultimately successful.
Why It Matters
This decision illustrates the practical utility of the Land and Environment Court’s conciliation conference process in resolving complex environmental planning disputes. By engaging ecological, geotechnical, and engineering experts collaboratively over multiple sessions, the parties transformed a refused application into a consented one — avoiding costly contested hearings. The case also demonstrates how a developer’s willingness to reduce a development’s environmental footprint mid-appeal, particularly in relation to threatened ecological communities such as Blue Gum High Forest, can be decisive in achieving consent.
For practitioners, the case is a reminder that amendments made during appeal proceedings carry a costs consequence: s 8.15(3) of the EPA Act permits the consent authority to recover costs “thrown away” as a result of those amendments, regardless of the ultimate outcome of the appeal. This creates an incentive for applicants to front-load environmental assessment work before lodging a DA, particularly on ecologically sensitive sites subject to the biodiversity offsets scheme.