Background
Richard Petherick sought development consent from Hawkesbury City Council to alter and expand an existing pub at 13 Bells Line of Road, North Richmond — a hotel dating to the 1930s. The proposed works included activating the existing first floor for dining and bar facilities (with balcony patron seating), installing a lift, modifying an internal staircase, constructing a covered entry, enclosing an existing refrigeration condenser for acoustic purposes, and reconfiguring the car park to provide 33 on-site spaces. The first-floor interior was proposed to operate Monday to Saturday until midnight and Sunday until 10:00 pm, with the balconies closing at 10:00 pm daily.
Hawkesbury City Council refused the development application (DA0035/25) on 31 July 2025. Petherick lodged a Class 1 appeal in the Land and Environment Court on 17 October 2025 under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW). The Council filed its Statement of Facts and Contentions in November 2025, raising issues concerning traffic, parking, acoustics, waste management, and documentation adequacy.
Acting Commissioner Kullen presided over conciliation conferences held on 25 February 2026 and 12 May 2026 under s 34 of the Land and Environment Court Act 1979 (NSW). The conferences were adjourned to allow the applicant to prepare amended plans and supporting documents — including revised architectural plans, an environmental noise assessment, a plan of management, and updated traffic swept-path diagrams — which the Council then assessed. No public submissions had been received during the original notification period, and no submitters attended the on-site view.
The Court’s Holding
After the conciliation process, the parties reached agreement on the terms of a decision acceptable to both sides and filed a signed s 34 agreement on 19 May 2026. Acting Commissioner Kullen was satisfied that the parties’ agreed decision was one the Court could have made in the proper exercise of its functions under s 34(3) of the LEC Act, and accordingly was required to dispose of the proceedings in accordance with that agreement. The Court upheld the appeal and granted development consent to the amended DA subject to the conditions in Annexure A.
The Court confirmed that all jurisdictional prerequisites were met: the applicant held the landowner’s authority, the DA had been properly notified, the site’s E1 Local Centre zoning permits a pub with consent, and the proposed works complied with the applicable height controls (the existing building is under the 10-metre maximum and no height increase was proposed). Relevant State Environmental Planning Policies — including the Biodiversity and Conservation SEPP (Hawkesbury-Nepean catchment provisions), the Resilience and Hazards SEPP (site contamination), and the Transport and Infrastructure SEPP — were each considered and found to be either satisfied or not triggered at the applicable thresholds.
The Court ordered the applicant to pay $4,000 in costs thrown away by the Council as a result of the amendment to the development application, in accordance with s 8.15(3) of the EPA Act. Acting Commissioner Kullen expressly noted that, in giving effect to the parties’ s 34 agreement, no independent merit assessment of the originally disputed issues was made.
Key Takeaways
- A development consent refusal by council is not necessarily the end: a s 34 conciliation conference in the Land and Environment Court can produce a negotiated agreement that results in consent being granted on amended plans, without the Court conducting a full merits hearing.
- Where a s 34 agreement is reached, the Court must give effect to it under s 34(3) of the LEC Act provided the agreed decision is one the Court could have made — the Commissioner is not required to (and did not) conduct an independent merits assessment.
- Costs thrown away by an amendment to a development application during appeal proceedings can be ordered against the applicant under s 8.15(3) of the EPA Act, even where the overall appeal succeeds.
- A pub operating in an E1 Local Centre zone under the Hawkesbury Local Environmental Plan 2012 is a permissible use with consent; activation of an existing upper floor for dining and bar facilities is capable of approval where acoustic, traffic, parking, and waste management concerns are addressed through amended plans and a plan of management.
Why It Matters
This decision illustrates the practical utility of the Land and Environment Court’s conciliation process as an alternative to contested hearings in development appeals. By amending the application and providing targeted expert reports — on noise, traffic, and waste — the applicant was able to satisfy the Council’s contentions and obtain consent without a full merits determination. The case is a useful reminder for practitioners that a council refusal can be a starting point for negotiation rather than an endpoint, and that the Court’s conciliation machinery under s 34 of the LEC Act is well-suited to resolving technical planning disputes of this kind.
The decision also highlights the cost consequences of mid-appeal amendments: the applicant obtained the consent it sought but was required to compensate the Council for wasted costs, reinforcing that applicants should weigh the timing and extent of any proposed amendments carefully. For hotel and hospitality operators seeking to expand or adapt existing licensed premises, the case demonstrates the range of planning, acoustic, traffic, and environmental controls that must be addressed when activating additional floor space for patron use.