Hobart 44 Pty Ltd v Penrith City Council — Court approves amended five-dwelling St Marys development

Case
Hobart 44 Pty Ltd v Penrith City Council
Court
Land and Environment Court of New South Wales (Australia)
Judge
AC Sherry (of New South Wales, 2025)
Date Decided
1 September 2026
Citation
[2026] NSWLEC 1563
Topics
planning appeals, development consent, conciliation, residential development

Background

Hobart 44 Pty Ltd appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) after Penrith City Council refused DA25/0287 for land at 44 Hobart Street, St Marys. The original application was amended during the appeal.

Following a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW), the parties agreed to approve amended plans for demolition of the existing structures and construction of five two-storey multi-dwelling houses, with landscaping, parking and strata subdivision. The Council’s concerns and contentions were resolved by the amendments.

The Court’s Holding

Acting Commissioner Sherry upheld the appeal and granted development consent subject to the agreed conditions in Annexure A. The Court gave effect to the parties’ signed s 34 agreement because it was a decision the Court could properly have made.

The Court was satisfied that the amended proposal met the relevant statutory preconditions, including contamination, catchment, earthworks, servicing, urban-heat and biodiversity considerations, and complied with applicable controls. It noted that the site was in the R3 Medium Density Residential zone, exceeded the 1,200-square-metre minimum site area, and complied with the 8.5-metre height limit. The applicant was ordered to pay the Council’s thrown-away costs caused by the amendment, as agreed or assessed.

Key Takeaways

  • A s 34 agreement may resolve a planning appeal where the Court is satisfied the agreed result is within its lawful power.
  • Amended plans can cure a council’s objections during conciliation and support a consent outcome.
  • The Court did not undertake a separate merits assessment of discretionary s 4.15 matters when disposing of the proceedings by agreement.

Why It Matters

The decision illustrates the Land and Environment Court’s role in giving effect to negotiated planning outcomes after confirming the necessary legal and environmental preconditions. It also highlights the cost consequence of materially amending a development application during an appeal.

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