Emu Property (NSW) Pty Ltd v Penrith City Council

Category: Principal judgment

Parties: Emu Property (NSW) Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation: Counsel:
G McKee (Applicant) (Solicitor)
D Johnson (Respondent) (Solicitor)
Solicitors:
McKees Legal Solutions (Applicant)
Penrith City Council (Respondent)

File Number(s): 2025/439285

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application No . DA25/0320 (DA) for the erection of an awning over an existing vehicle display area of an approved vehicle sales and hire premises at Lot 10 in DP 286568 known as 1 Willett Close, Cranebrook, NSW (site). The proposed development is for an addition to an existing approved use.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties on 16 February 2026. I presided over the hearing and the conciliation conference.

3. On 13 February 2026, the parties submitted an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the DA, and subject to the conditions in Annexure A.

Jurisdictional Prerequisites

4. The signed agreement is supported by a Jurisdictional Note from the parties, that sets out the jurisdictional prerequisites that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act.

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

6. For the reasons set out below, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions as required by s 34(3) of the LEC Act.

Owner’s consent

7. I accept the parties’ agreement that the DA was lodged with the consent of the owners of the land to which the development relates.

Zoning and permissibility

8. The Site is zoned E4 - General Industrial under the Penrith Local Environmental Plan 2010 (LEP).

9. The proposed awning is ancillary to the approved use on the site and is an alteration or addition to an existing approved use of the land under DA18/1232 by Penrith City Council, namely a vehicle sale and hire premises.

10. To the extent they are relevant, the parties agree and I accept that the proposed development is permissible with consent and consistent with the objectives in cl 2.3 of the LEP.

Public notification

11. Pursuant to the Penrith City Council’s Community Engagement Policy, the parties agree and I accept that the development application did not warrant public notification. Council did not receive any submissions on the DA.

Penrith Local Environmental Plan 2010

12. Based on the Statement of Environmental Effects prepared by Cityscape Planning + Projects dated May 2025 (SEE) and the reasons set out in the Jurisdictional Note, the parties are satisfied and I am accept that the applicable development controls and the relevant matters required to be considered by the consent authority under the LEP have been complied with and adequately addressed by the Applicant, including in regard to cl 4.3 – Height of Buildings, cl 7.4 – Sustainable Development, cl 7.5 – Protection of scenic character and landscape values, cl 7.7 – Essential services, cl 7.22 – Waterside, and cl 7.30 – Urban heat.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

13. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) - Water Catchments applies to the site because it is land within the Hawkesbury-Nepean Catchment.

14. In deciding whether to grant development consent to development on land in a regulated catchment, the consent authority must consider a range of matters regarding water quality and flood risks.

15. Based on the information in the SEE, the parties agree and I accept that the nature of the proposed development means that it will not result in any adverse impacts on the Hawkesbury-Nepean Catchment and that the requirements of the Biodiversity and Conservation SEPP have been adequately addressed.

State Environmental Planning Policy (Resilience and Hazards) 2021

16. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.

17. Based on the information in the SEE, the development proposes no earth works, site disturbance or change of land use other than very minor soil excavation for two posts, and based on the site history there is a low risk of potential contamination.

18. Accordingly, the parties are satisfied and I accept that the requirements of the Resilience and Hazards SEPP have been met.

Section 4.15 of the EPA Act

19. The parties agree and I accept that the mandatory matters in s 4.15 of the EPA Act that are of relevance to the DA have been taken into consideration by the parties, including the environmental, social and economic impacts in the locality, the suitability of the site and the public interest.

Conclusion

20. Based on the Jurisdictional Note, the SEE, and the documents referred to in Annexure A, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

21. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

22. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act.

Notation

23. The Court notes:

24. Penrith City Council as the relevant consent authority has agreed, under s 37 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the applicant amending the development application number DA25/0320 in accordance with the plans and documents listed below:

| Plan No. | Plan Title | Prepared By | Revision | Date | | 2018/062/2 | Awning Drainage Plan | Gerard Balkin | A | 23.12.2025 | | L/01 | Proposed Landscape Plan | Discount Landscape Plans | C | 13. 2. 2026 | | L/02 | Landscape Details | Discount Landscape Plans | C | 13. 2. 2026 | | L/03 | Landscape Specification | Discount Landscape Plans | C | 13. 2. 2026 |

Orders

24. The Court orders:

25. The appeal is upheld.

26. Development Application DA25/0320 for the erection of an awning over an existing vehicle display area of an approved vehicle sales and hire premises on Lot 10 in DP 286568 known as 1 Willett Close, Cranebrook is determined by the grant of consent subject to the conditions set out in Annexure ‘A’ to this agreement.

M Young

Acting Commissioner of the Court

Annexure A (203 KB, pdf)

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