ADN Resource Management Pty Limited v The Council of Camden

Parties: ADN Resource Management Pty Limited (Applicant)
The Council of Camden (Respondent)

Representation: Counsel:
A Johnson (Solicitor) (Applicant)
T Kwok (Solicitor) (Respondent)
Solicitors:
Miller Prince (Applicant)
Holding Redlich (Respondent)

File Number(s): 2025/436373

Publication restriction: Nil

Judgment

1. COMMISSIONER: On 8 May 2025, the Court granted development consent in proceedings referenced under the Court’s reference system as 2024/00481450 (DA proceedings) for the construction and use of a landscape material supply facility with associated works at 1110 The Northern Road, Bringelly, legally described as Lot 25 in Deposited Plan 1222679 (site).

2. The DA proceedings were resolved by way of an agreement entered into between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act). The Court disposed of the proceedings in accordance with that agreement (ADN Resource Management Pty Ltd v The Council of Camden [2025] NSWLEC 1312 (ADN)).

3. According to a jurisdictional statement (JS) provided by the parties to the Court on 6 March 2026, the proceedings the subject of this judgement, Modification Application No. DA/2024/537/3 (MA), now seeks to modify the consent forthcoming from the DA proceedings generally as follows:

4. Removal of 1 additional tree;

5. Removal of part of the approved landscape buffer to the east of the Site;

6. Addition of compensatory planting to the north of the new proposed driveway;

7. Widening of the approved entry crossover and driveway;

8. Construction of a covered hardstand area around the perimeter of the outbuilding;

9. Construction of an additional driveway and vehicular crossover to Bent Road

10. Increase to the outbuilding height, roof area and roof pitch;

11. Increase in the height of the roller door; and

12. Amendments to the approved wastewater system.

13. The MA is lodged with the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), which enables the Court to modify a consent granted by it.

Conciliation and agreement between the parties

5. The Court arranged a conciliation conference between the parties under s 34(1) of the LEC Act, at which I presided. The conference was held on 5 March 2026. Prior to the conference, and after certain amendments have been agreed, the parties had come to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court approving the MA in accordance with agreed conditions.

Pre-requisites to the exercise of the function to grant development consent

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

7. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties' agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 (McMillan) at [62]-[65]). Ultimately, I find that there are no such constraints. But there are certain statutory queries which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties' agreed JS.

8. The parties agree that it is within the Court’s power to uphold the appeal and approved the modification to the development consent as now amended. The matters requiring attention before such power is enabled are addressed below. The focus is ss 4.55(2) and (3) of the EPA Act, which I reproduce below, relevantly:

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a) it is satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with—

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

…

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

9. Having regard to s 4.55(2)(a) of the EPA Act, the parties advise of their agreed position that the development to which the consent as modified would relate is substantially the same development as the development for which the consent was originally granted. The parties cite a number of points of justification to demonstrate that the modified proposal is “essentially or materially the same” as the development originally approved, citing the findings in Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8. I accept that the proposed modifications are limited in scope and involve only minor design refinements. It does not alter the fundamental character purpose or environmental impacts of the originally approved development. I agree with the parties that in this instance the development to which the consent as modified relates would be substantially the same development as the development for which consent was originally granted.

10. With respect to s 4.55(2)(b) of the EPA Act, the parties advise and I accept that none of the conditions proposed to be modified by way of the modification application were imposed as a requirement of a concurrence to the consent, or in accordance with any general terms of approval.

11. With respect to s 4.55(2)(c) of the EPA Act, the parties advise that the proposal was notified in accordance with requirements and no submissions were received.

12. The rest of the statutory considerations in s 4.55(3) of the EPA Act call up: (1) the consideration of evaluative matters itemised in s 4.15(1) of the EPA Act, and (2) the taking into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. In the JS, the parties provide a detailed working through of the relevant provisions of environmental planning instruments, and the relevant development control plan, and indicate how requirements are addressed. The parties also refer to their consideration of the Court’s 2025 findings in A**DN, as a basis for understanding the reasoning behind that decision to grant consent.

13. I note these points in relation to the consideration of such matters by, in particular, Council as the consent authority. But there is no requirement for a finding of the Court with respect to them in this judgement. This is for two reasons. First, is that mindful of McMillan (at [62]-[65]), the question to be attended to in actioning s 34 agreements is whether there is a jurisdictional constraint to the Court's exercise of power in accordance with the parties' agreement, and these requirements for "consideration" are not to be thought of as jurisdictional constraints. Second, is that in North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468; [1998] NSWSC 163 (Michael Standley) (at pp 480-481), the Court of Appeal found that (now) s 4.55 of the EPA Act is a "free-standing provision", released from statutory restrictions that apply under s 4.2(1)(b) of the EPA Act. As made clear in Michael Standley at 481C, this does not mean the provisions of relevant environmental planning instruments are to be ignored, only that they do not by their construction provide a statutory bar; a relevant question for judgements relating to s 34 agreement matters.

Conclusion

14. With the above findings, I am satisfied that the jurisdictional prerequisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

15. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. Subsection 34(3)(b) of The LEC Act also requires me to “set out in writing the terms of the decision”. The final orders have this effect.

Notations

16. With respect to the amendments of the DA, the Court notes that:

17. The Respondent, as the relevant consent authority, has approved under s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant amending the Modification Application No. DA/2024/537/3 in accordance with the following amended plans and documents (Amended Development Application Documents):

| Drawing No and Revision | Title | Prepared by | Date | | Landscape Plans | | 1. | Drawing No. 24083 MA 2 - 2, Revision E | Landscape Concept Plan | Vision Dynamics | 27 October 2025 | | Engineering Plans | | 2. | Drawing No. D00, Revision G | Cover Sheet, Legend & Drawing Schedule | Amity Engineers | 3 February 2026 | | Drawing No. D01, Revision G | General Notes | | Drawing No. D05, Revision G | Cut and Fill Plan | | Drawing No. D10, Revision G | Stormwater Drainage Plan – Ground Floor | | Drawing No. D12, Revision G | Site Catchment Plan – Pre vs Post Development | | Drawing No. D20, Revision G | Stormwater Drainage Details | | 3. | Sheet No. 1 of 1, Issue A | Proposed Layout for 6950L Septic Tank + 30,000L Collection Well | BioSeptic Pty Ltd | 7 March 2023 | | Reports | | 4. | Engineering letter of response | Amity Engineers | 3 February 2026 | | 5. | Salinity Assessment | Foundation Earth Sciences | 25 September 2024 | | 6. | On-site Wastewater Report | Broadcrest Environmental Pty Ltd | 27 February 2026 | | 7. | Certificate of Accreditation – Sewage Management Facility Septic Tanks & Collection Wells | NSW Government | 20 November 2023 | | 8. | BioSeptic Pty Ltd Quotation | BioSeptic Pty Ltd | 27 February 2026 | | 9. | Pump Out Services Quotation | Chlorocheck Liquid Waste | 3 March 2026 | | 10. | Cost-Benefit Analysis | | 2 March 2026 | | 11. | Cost-Benefit Analysis | | 3 March 2026 | | 12. | Landowners consent – ADN Resource Management Pty Limited | ADN Resource Management Pty Limited | 5 March 2026 | | 13. | DRAINS model | Amity Engineers | - | | 14. | Tuflow Flood Model | Amity Engineers | - | | 15. | MUSIC Model | Amity Engineers | |

2. The Applicant was to file the Amended Development Application Documents with the Court by 6 March 2026.

Orders

17. The Court orders that:

18. The modification application made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) is approved.

19. Development Consent DA/2024/537/1 granted by the Court on 8 May 2025 is modified in accordance with Annexure A.

20. Development Consent DA/2024/537/1 as modified by the Court is at Annexure B.

P Walsh

Commissioner of the Court

Annexure A (200 KB, pdf)

Annexure B (323 KB, pdf)

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