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[2026] NSWLEC 1113
General information, not legal advice.
Land and Environment Court (NSW)
2026-03-19
Kullen AC
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Medium Neutral Citation: ESR Developments (Australia) Pty Ltd v Penrith City Council [2026] NSWLEC 1113
Hearing dates: Conciliation conference held on 28 January 2026
Date of orders: 19 March 2026
Decision date: 19 March 2026
Jurisdiction: Class 1
Before: Kullen AC
Decision: The Court orders:
(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $7,000 within 28 days of these orders.
(2) The appeal is upheld.
(3) Development Application DA 24/0734, as amended, seeking consent for construction, fitout and use of a (single occupancy) warehouse and distribution centre, with associated works including earthworks, retaining walls, stormwater management works, car parking, fencing, landscaping and business identification type signage at 290-308 Aldington Road and 59-72 Abbotts Road, Kemps Creek NSW, 2178, contained in part of Lot 2 DP1321939 (formerly Lots 111, 112 and 113 in Deposited Plan 1296469) is determined by the grant of development consent subject to the conditions at Annexure A.
Catchwords: DEVELOPMENT APPEAL — Mamre Road Precinct development — conciliation conference — agreement between the parties — orders
Legislation Cited: Biodiversity Conservation Act 2016 (NSW)
Environmental Planning and Assessment Act 1979 (NSW), ss 4.12, 4.15, 4.16, 4.17, 8.7, 8.15, Sch 1, Div 2, cl 7
Land and Environment Court Act 1979 (NSW),
s 34
Sydney Water Act 1994 (NSW), ss 73, 78
Environmental Planning and Assessment Regulation 2021 (NSW), ss 23, 35, 35BA, 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Pt 6.2, Div 2, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.17, 6.18, 6.19, 6.21, 6.23 13.16, 21
State Environmental Planning Policy (Industry and Employment) 2021, Ch 2, ss 2.2, 2.10, 2.14, 2.17, 2.19, 2.20, 2.21, 2.22, 2.24, 2.25, 2.26, 2.30, 2.31, 2.34, 2.35, 2.36, 2.37, 2.38, 2.39, 2.40, 2.41, 2.42, 2.43, 2.44, 3.6, Sch 5
State Environmental Planning Policy (Precincts – Western Parkland City) 2021, ss 4.3, 4.13, 4.17, 4.18, 4.19, 4.20, 4.21, 4.22, 4.23, 4.23A, 4.27, Pt 4.3,
Sch 1
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, Ch 3, ss 3.1, 3.2
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.122, Sch 3
Texts Cited: NSW Department of Planning and Environment, Cumberland Plain Conservation Plan (August 2022)
NSW Department of Planning, Industry and Environment Mamre Road Precinct Development Control Plan 2021 (November 2021)
Penrith City Council, Mamre Road Precinct Development Contributions Plan 2022 (Amendment 1) (August 2025)
Penrith City Council, Community Engagement Strategy and Community Participation Plan (December 2024)
Category: Principal judgment
Parties: ESR Developments (Australia) Pty Limited (Applicant)
Penrith City Council (Respondent)
Representation: Counsel:
A Hemmings (Applicant)
A Jucha (Respondent)
Solicitors:
Johnson Winter Slattery (Applicant)
Penrith City Council (Respondent)
File Number(s): 2025/150258
Publication restriction: Nil
The DA as amended by the Applicant on 24 October 2025 by leave of the Court (the amended DA) (refer to [8] below) seeks consent for the construction, fitout and use of a (single occupancy) warehouse and distribution centre, with associated works including earthworks, retaining walls, stormwater management works, car parking, fencing, landscaping and business identification type signage at 290-308 Aldington Road and 59-72 Abbotts Road, Kemps Creek NSW contained in part of Lot 2 DP1321939 (formerly Lots 111, 112 and 113 in Deposited Plan 1296469) (the site).
Specifically, the amended DA seeks consent for the following proposed development:
The site preparation works including bulk earthworks and construction of retaining walls;
Site servicing and infrastructure works;
Construction and fit out of a warehouse and distribution centre with a total gross floor area (GFA) of 13,667 m2, comprising:
12,917 m2 of warehouse GFA; and
750 m2 of ancillary office GFA.
Centrally located hardstand area to facilitate loading/unloading and vehicle manoeuvring;
On-lot car parking including 64 car spaces and 14 bicycle spaces;
Landscaping;
Pylon and façade signage including signage zones; and
Hours of operation 24 hours 7 days per week.
The DA was lodged with Penrith City Council (the Respondent) on 1 October 2024. The parties advise that the Stage 1 Westlink State Significant Development Approval (SSD9138102) (the SSD approval) issued on 21 April 2023 applies to the site and allows for the construction of the first stage of an industrial estate. The proposed development forms part of the broader Westlink Industry Park currently being developed by the Applicant within the southern portion of the Mamre Road Precinct.
The DA was advertised (through a notice in a local newspaper) and notified to adjacent property owners from 21 October 2024 until 3 November 2024, in accordance with the Penrith City Council Community Engagement Strategy and Community Participation Plan 2022. One submission was received by the Respondent.
On 17 April 2025, the Applicant filed an appeal in Class 1 of the Court’s jurisdiction, under s 8.7 of the EPA Act against the deemed refusal of the DA by the Respondent.
On 28 May 2025, the Respondent filed a Statement of Facts and Contentions (SOFAC) with the Court, based on the original DA. On 13 August 2025, the Applicant filed a Statement of Facts and Contentions in Reply with the Court.
On 24 October 2025, the Applicant was granted leave by the Court to amend the DA. The parties advise that the amended DA was advertised (through notice in a local newspaper) and notified to adjoining property owners from 11 November 2025 to 24 November 2025. No submissions were received.
The amended DA was referred to Transport for New South Wales (TfNSW) on 28 October 2025.
On 17 November 2025, the Respondent filed an amended SOFAC which addressed the amended DA. On 1 December 2025, the Applicant filed an amended Statement of Facts and Contentions in reply.
On 12 September 2025, the Court arranged a s 34 conciliation conference on site pursuant to s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act). The s 34 conciliation conference was adjourned to enable time for the parties to address the contentions relating to the amended DA raised by the Respondent.
The parties were not able to reach an agreement, and the s 34 conciliation conference was terminated by the Court on 12 September 2025. The matter was adjourned for a hearing on 28 and 29 January 2026.
The on-site view on 28 January 2026 was vacated at the request of the parties, who advised the Court that the submitter did not wish to attend an on-site view or make a verbal submission.
Subsequently it was determined that the submitter did wish to address the Court, and this was facilitated at the commencement of the hearing in the Court on 28 January 2026.
Joint Expert Reports on landscaping and urban design were filed with the Court on 23 December 2025. However, the expert witnesses were not called by the parties. Their reports were utilised in refining the proposed development (subsequently the subject of the s 34 agreement between the parties).
A detailed schedule of agreed amendments to the amended DA’s architectural drawings, landscape management plan and civil plans is contained in Appendix D to the urban design joint expert report, which was prepared by Georgia Sedmen and Nigel Dickson (for the Applicant) and Robert Walker (for the Respondent).
The parties reached a s 34 agreement on the proposed development before the hearing. The s 34 agreement was filed with the Court on 27 January 2026.
The hearing was adjourned. The second s 34 conciliation conference which I conducted, commenced in the Court on 28 January 2026.
At the s 34 conciliation conference on 28 January 2026, the parties confirmed that they had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, based on the amended plans (in the further amended DA), which were subsequently filed with the Court on 29 January 2026. This decision involved the Court upholding the appeal and granting development consent to the further amended DA subject to conditions.
The s 34 agreement is based on the amended plans in the further amended DA which the Applicant advised now included an updated noise and vibration assessment; updated air quality assessment; operational management plan; construction noise and vibration management plan. Additional conditions of consent are to be imposed to address any future noise complaints.
The final signed s 34 agreement with Annexure A and the further amended plans as agreed between the parties were filed with the Court on 27 January 2026 and were supported by an agreed statement of jurisdictional prerequisites provided by the parties.
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. 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 that were originally in dispute between the parties.
The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.
The parties advise that the DA was notified and advertised by the Respondent in accordance with the Penrith City Council Community Engagement Strategy and Community Participation Plan 2022 between 21 October 2024 and 3 November 2024, with one submission being received.
The parties advise that the amended DA was advertised (through notice in a local newspaper) and notified to adjoining property owners from 11 November 2025 – 24 November 2025. No submissions were received.
As stated above at [11], Ms J Seragli (the owner of an adjoining site) attended the commencement of the hearing on 28 January 2026 and confirmed her concerns with the effectiveness of mitigation measures related to noise and vibration from construction and on-going operations on the site. The Applicant provided details to the Court on how these concerns are being further addressed in the further amended DA, including the inclusion of an operational management plan.
The Applicant advised that:
The site has been cleared of vegetation and trees under the SSD approval; and
The land is certified as Urban Capable Land under the Cumberland Plain Conservation Plan within the Mamre Road Precinct and accordingly, a biodiversity assessment is not required.
Pursuant to s 78 of the Sydney Water Act 1994 (NSW) (the Sydney Water Act), if a consent authority within the area of operations receives a development application or building application in relation to any matter that would:
Increase the demand for water supplied by Sydney Water Corporation, or
Increase the amount of wastewater that is to be removed by Sydney Water Corporation, or
Damage or interfere with Sydney Water Corporation’s works, or
Adversely affect Sydney Water Corporation’s operations,
the consent authority must give the Sydney Water Corporation notice of the application.
The parties advise that:
The Respondent referred the amended DA to Sydney Water for comment on 28 October 2025 and a response was received on 13 November 2025;
The Court can be satisfied that Sydney Water Corporation has received notice of the application in compliance with s 78 of the Sydney Water Act; and
The referral response from Sydney Water indicated support for the amended DA subject to the imposition of conditions which are included in the conditions of consent.
The site is located in the Hawkesbury-Nepean Catchment, which is a regulated catchment for the purposes of Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP). Accordingly, the general controls in Div 2 of Pt 6.2 of Ch 6 of the Biodiversity SEPP are applicable.
The parties advise that the jurisdictional requirements in these provisions are satisfied having regard to the following:
Sections 6.6, 6.7, 6.8, 6.9, and 6.10 of the Biodiversity SEPP relate to controls on development generally in regulated catchments and apply to the proposed development. The parties advise that the Court can be satisfied that the amended Statement of Environmental Effects (the amended SEE) submitted in support of the amended DA demonstrates compliance with these sections of the Biodiversity SEPP.
The parties submit that ss 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.17, 6.18, 6.19, 6.21 and 6.23 of the Biodiversity SEPP do not apply to the proposed development, and that the supporting documentation for this position is contained in the amended SEE.
Section 13.16 of the Biodiversity SEPP relates to development on certified urban capable land. Section 13.16(1) provides that development consent must not be granted to development on certified urban capable land unless the consent authority has considered whether the development is consistent with the Cumberland Plain Conservation Plan 2022.
Section 21 of the Biodiversity SEPP relates to stormwater management and applies to the proposed development. The parties advise that the Court can be satisfied that the proposed development is not prohibited as the stormwater management works proposed as part of the development will not cause untreated stormwater to be disposed of into a natural waterbody. The relevant supporting documents are contained in the amended SEE.
The parties advise that the Cumberland Plain Conservation Plan 2022 does not apply to development within the Western Sydney Aerotropolis Area and therefore does not apply to the proposed development on the basis that the Mamre Road Precinct Development Control Plan (the DCP) includes appropriate measures. This conclusion is supported in the amended SEE.
The principal environmental planning instrument applying to the site is the State Environmental Planning Policy (Industry and Employment) 2021 (Industry SEPP). Ch 2 of the Industry SEPP applies to land identified on the Land Application Map of the Industry SEPP. Pursuant to s 2.2 the Land Application Map identifies Precinct 12 (Mamre Road) as being subject to the provisions of the Industry SEPP.
The use of the land for “warehouse and distribution centres” is permissible with consent in the IN1 General Industrial zone in accordance with the Land Use Table at s 2.10 of the Industry SEPP.
Pursuant to s 2.10(2) of the Industry SEPP, a consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone, which are:
• To facilitate a wide range of employment-generating development including industrial, manufacturing, warehousing, storage and research uses and ancillary office space.
• To encourage employment opportunities along motorway corridors, including the M7 and M4.
• To minimise any adverse effect of industry on other land uses.
• To facilitate road network links to the M7 and M4 Motorways.
• To encourage a high standard of development that does not prejudice the sustainability of other enterprises or the environment.
• To provide for small-scale local services such as commercial, retail and community facilities (including child care facilities) that service or support the needs of employment-generating uses in the zone.
The parties submit that the proposed development is consistent with the zone objectives in that it will encourage industrial employment opportunities and facilitate a wide range of employment generating land uses.
I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.
Section 2.14 of the Industry SEPP provides that the demolition of a building or work may be carried out only with development consent. The parties advise that the proposed development does not include any demolition of buildings or works.
Pursuant to s 2.17 of the Industry SEPP, except in such cases as the Secretary may determine, the consent authority must not grant consent to development on any land to which Ch 2 of the Industry SEPP applies unless a development control plan has been prepared for that land.
The parties advise that the DCP has been prepared for land that includes the site and accordingly, consent can be granted to the proposed development ([109] refers).
Pursuant to s 2.19 of the Industry SEPP, consent must not be granted to development on land within the Western Sydney Employment Area (Chapter 2 of the Industry SEPP) (WSEA) unless it is satisfied that the development contains measures designed to minimise the consumption of potable water and greenhouse gas emissions.
The parties advise that:
The design of the proposed development has sought to minimise both consumption of potable water and greenhouse gas emissions; and
Relevant matters concerning the consumption of potable water and greenhouse gas emissions are detailed in the amended SEE, such that the Court may be satisfied for the purposes of s 2.19 of the Industry SEPP.
Pursuant to s 2.20 of the Industry SEPP, a consent authority must not grant consent to development on land in the WSEA unless satisfied that:
Building heights will not adversely impact on amenity of adjacent residential area; and
Site topography has been taken into consideration.
The parties advise that:
The proposed development complies with the 20 m maximum building height above existing ground level established under Section 4.2.1 of the DCP and is therefore suitable; and
Relevant matters concerning the height of buildings are detailed in the amended architectural plans and the amended SEE, such that the Court may be satisfied for the purposes of s 2.20 of the Industry SEPP.
Pursuant to s 2.21 of the Industry SEPP, a consent authority must not grant consent to development on land in the WSEA unless it is satisfied that adequate arrangements will be made to connect the roof areas of buildings to such rainwater harvesting scheme (if any) as may be approved by the Secretary.
The parties advise that the proposed development includes rainwater harvesting as part of the stormwater management plan, and that relevant matters concerning rainwater harvesting are detailed in the Amended SEE and amended civil drawings filed with the Court, such that the Court may be satisfied for the purposes of s 2.21 of the Industry SEPP.
Section 2.22 of the Industry SEPP applies to land within the WSEA that is within 250 metres of land zoned primarily for residential purposes. Pursuant to s 2.22(a) of the Industry SEPP, a consent authority must not grant consent to development on land to which this section applies unless it is satisfied that:
(a) wherever appropriate, proposed buildings are compatible with the height, scale, siting and character of existing residential buildings in the vicinity, and
(b) goods, plant, equipment and other material resulting from the development are to be stored within a building or will be suitably screened from view from residential buildings and associated land, and
(c) the elevation of any building facing, or significantly exposed to view from, land on which a dwelling house is situated has been designed to present an attractive appearance, and
(d) noise generation from fixed sources or motor vehicles associated with the development will be effectively insulated or otherwise minimised, and
(e) the development will not otherwise cause nuisance to residents, by way of hours of operation, traffic movement, parking, headlight glare, security lighting or the like, and
(f) the development will provide adequate off-street parking, relative to the demand for parking likely to be generated, and
(g) the site of the proposed development will be suitably landscaped, particularly between any building and the street alignment.
The parties advise that:
The site is located within 250 m of land zoned primarily for residential purposes (rural residential to the east of the site) and accordingly, s 2.22 of the Industry SEPP applies to the proposed development;
Relevant matters concerning satisfaction of s 2.22 of the Industry SEPP are detailed in documentation supporting the further amended DA including the amended SEE, amended architectural plans, landscape plans, visual assessment, traffic management and operational management plans; and
The Court may be satisfied that the requirements of s 2.22 of the Industry SEPP are met.
Pursuant to s 2.24 of the Industry SEPP, the consent authority must not grant consent to development on land within the WSEA unless it is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when required. Public utility infrastructure includes:
The supply of water;
The supply of electricity;
The supply of natural gas; and
The disposal and management of sewage.
The parties advise that the proposed development will utilise existing water and electricity infrastructure being utilised by Stage 1 of the Westlink Industry Park currently under construction. No gas connection is proposed.
Section 2.25 of the Industry SEPP applies to any land to which Ch 2 of the Industry SEPP applies, that is situated on or in the vicinity of a proposed transport infrastructure route shown on the Transport and Arterial Road Infrastructure Plan Map in the Industry SEPP.
If a site is located near or in the vicinity of a proposed transport infrastructure route on the Transport and Arterial Road Infrastructure Plan Map*,* then pursuant to s 2.25 of the Industry SEPP, the consent authority must:
(a) Refer the Development Application to the Secretary of the DPHI seeking consent to carry out development on the site; and (b) Before determining any such development application, consider any comments made by the Secretary as to the compatibility of the development to which the application relates with the proposed transport infrastructure route concerned.
The parties advise that the site is located approximately one kilometre east of Mamre Road and given this separation, does not trigger a referral under s 2.25 of the Industry SEPP.
Section 2.26 of the Industry SEPP provides for exceptions to development standards. The parties advise that the Applicant is not seeking an exception to any of the development standards contained in the Industry SEPP for the proposed development.
Pursuant to s 2.30 of the Industry SEPP, in determining a development application that relates to land in the WSEA, the consent authority must take into consideration whether or not:
(a) the development is of a high quality design, and
(b) a variety of materials and external finishes for the external facades are incorporated, and
(c) high quality landscaping is provided, and
(d) the scale and character of the development is compatible with other employment-generating development in the precinct concerned.
The parties advise that relevant matters are detailed in the amended SEE and other supporting documentation filed with the Court, such that the Court may be satisfied for the purposes of s 2.30 of the Industry SEPP:
Pursuant to s 2.31 of the Industry SEPP, a person must preserve trees or other vegetation prescribed by a development control plan.
The parties advise that the DCP does not identify prescribed trees or other vegetation that must be preserved. The site is cleared of vegetation (approved under a separate Stage 1 SSD approval.
Pursuant to s 2.34 of the Industry SEPP, consent must not be granted to development in the area marked “Transport Investigation Areas A and B” on the Land Zoning Map in the Industry SEPP that has an estimated development cost of more than $200,000 without the concurrence of TfNSW.
The parties advise that the site is not located in or adjacent to an area marked “Transport Investigation Areas A and B” on the Land Zoning Map and accordingly, s 2.34 of the Industry SEPP does not apply to the assessment of the amended DA.
The amended DA triggers the requirement for TfNSW concurrence under s 2.35 of the Industry SEPP as it is within the Mamre Road Precinct on the Land Application Map in the Industry SEPP. Consent must not be granted without TfNSW concurrence and in determining whether to provide concurrence, TfNSW must take into account the likely effect of the development on:
(a) the compatibility of the proposed development with the delivery of an integrated freight network, including use of fire access roads and connection to the fire access roads of adjoining land, and
(b) the operation of an integrated freight network, including whether the development is likely to impede access to or from the integrated freight network, and
(c) the practicability and cost of carrying out transport projects on the land in the future.
For the purposes of s 2.35 of the Industry SEPP, an integrated freight network means a network of transport corridors within the Mamre Road precinct that allow freight to be transported from an intermodal terminal (within the meaning of s 2.34 of the Industry SEPP) to development sites in the Mamre Road precinct.
The parties advise that the Court can be satisfied that s 2.35 of the Industry SEPP has been met as TfNSW provided concurrence on 17 November 2025 subject to a condition requiring a Construction Pedestrian Traffic Management Plan to be prepared and endorsed by TfNSW prior to the issue of a Construction Certificate.
Section 2.36 of the Industry SEPP relates to the assessment and management of aircraft noise in relation to developments, particularly noise sensitive developments and seeks to ensure development in the vicinity of the Western Sydney International (Nancy Bird) Walton Airport (the Airport) does not hinder or adversely impact the ongoing, safe and efficient operation of the Airport.
Section 2.36 of the Industry SEPP applies to development:
(a) on land that is:
(ii) in the vicinity of the Airport and its flight paths; and
(iii) in either an ANEF contour of 20 or greater or an ANEC contour of 20 or greater, and
(b) that the consent authority considers is likely to be adversely affected by aircraft noise.
The parties advise that s 2.36(5) of the Industry SEPP defines an ANEF (Australian Noise Exposure Forecast) contour as a formally endorsed, actual noise exposure from a final flight path. An ANEC (Australian Noise Exposure Concept) contour is defined in s 2.36(5) of the Industry SEPP as a preliminary hypothetical measure used to assess operational scenarios before finalisation.
The parties advise that:
The site is not located within an ANEF contour of 20 or greater or an ANEC contour of 20 or greater and accordingly, s 2.36 does not apply to the assessment of the DA; and
Relevant matters concerning the assessment and management of aircraft noise are detailed in the amended SEE and other documents filed with the Court, such that the Court may be satisfied for the purposes of s 2.36 of the Industry SEPP.
Pursuant to s 2.37 of the Industry SEPP, if a development application is received and the consent authority is satisfied that the proposed development will penetrate the prescribed airspace, before granting development consent, the consent authority must consult with the relevant Commonwealth body about the application.
The parties advise that:
The proposed development will not penetrate the prescribed airspace of the Airport and accordingly, s 2.37 of the Industry SEPP does not apply and the consent authority is not required to consult with the relevant Commonwealth body about the DA; and
Relevant matters concerning the assessment and management of the development in the context of airspace operations are detailed in the amended SEE and other documents filed with the Court, such that the Court may be satisfied for the purposes of s 2.37 of the Industry SEPP.
Section 2.38 of the Industry SEPP applies to development on land, any part of which is less than 13 kilometres from a boundary of the Airport. The site is located less than 13 kilometres from the Airport and accordingly, s 2.38 of the Industry SEPP applies.
The consent authority must not grant consent for development unless the consent authority is satisfied that the proposed development will not attract birds or animals of a kind and in numbers that are likely to increase the hazards of operating an aircraft. The objectives of s 2.38 of the Industry SEPP are:
(a) to provide for the effective and ongoing operation of the Airport by ensuring that such operation is not compromised by proposed development in close proximity to the Airport; and
(b) to protect the community from undue risk from that operation.
The parties advise that:
The Court can be satisfied that the proposed development will not attract birds or animals of a kind and in numbers that are likely to increase the hazards of operating an aircraft given that the majority of the site will be hardstand, buildings, roads and paving. Compared to the undeveloped site, the developed site will be unlikely to attract birds or animals of a kind that will increase hazards of operating an aircraft given the nature of the development; and
Relevant matters concerning the assessment and management of the development in the context of the airport are detailed in the amended SEE and other documents filed with the Court, such that the Court can be satisfied for the purposes of s 2.38 of the Industry SEPP.
Section 2.39 of the Industry SEPP applies to land that:
(a) is serviced by a water recycling facility, or
(b) that will be serviced by a water recycling facility as soon as the facility becomes operational.
(a) a consent authority must not grant consent to the carrying out of development on land unless the consent authority is satisfied that recycled water from the water recycling facility will be provided to the development; and
(b) however, the consent authority may grant consent if it is satisfied that the development will be provided with recycled water from a water recycling or water conservation system approved by the Minister and specified in the Table to this section. As at the date of this statement, no approved systems are listed in the Table to the section.
The parties advise that:
The proposed development will be connected to the water recycling facility (purple pipes being delivered as part of the Stage 1 SSD Development) and will be governed by the Sydney Water Act s 73 process;
The Applicant has agreed to accept a condition of consent in relation to connection to the water recycling facility; and
The Court can be satisfied that recycled water from the water recycling facility will be provided to the proposed development and that s 2.39 of the Industry SEPP is met.
Under s 2.40 of the Industry SEPP, before granting development consent for earthworks, the consent authority must consider the following matters at s 2.40(3) of the Industry SEPP:
(a) the likely disruption of, or detrimental effect on, existing drainage patterns and soil stability in the locality,
(b) the effect of the proposed development on the likely future use or redevelopment of the land,
(c) the quality of the fill or the soil to be excavated, or both,
(d) the effect of the proposed development on the existing and likely amenity of adjoining properties,
(e) the source of fill material and the destination of excavated material,
(f) the likelihood of disturbing relics,
(g) the proximity to and potential for adverse impacts on a waterway, drinking water catchment or environmentally sensitive area,
(h) appropriate measures proposed to avoid, minimise or mitigate the impacts of the development,
(i) the proximity to and potential for adverse impacts on a heritage item, an archaeological site, or a heritage conservation area,
(j) the visual impact of earthworks as viewed from the waterways.
The proposed development seeks consent for site preparation works that include bulk earthworks and construction of retaining walls. The parties advise that the majority of the earthworks required for development of the site will be or have been carried out under the SSD approval.
The parties submit that the proposed earthworks are appropriate given the following:
In respect of s 2.40(3)(a) of the Industry SEPP, the existing drainage patterns and soil stability have been assessed with no disruption or detrimental effect on those matters;
In respect of s 2.40(3)(b) of the Industry SEPP, the Mamre Road Precinct has been rezoned for industrial development, with the proposed development being consistent with the Mamre Road Precinct vision as described within the DCP;
In respect of s 2.40(3)(c) of the Industry SEPP, a site remediation and validation assessment has been undertaken, and the proposed development has been designed as far as practicable to achieve a balanced cut and fill;
In respect of s 2.40(3)(d) of the Industry SEPP, the proposed development will not significantly impact the amenity of the adjoining properties as all setbacks, levels, landscaping and retaining walls have been designed to accommodate the amenity and interface with the adjoining properties and that all earthworks will not result in significant view impacts to neighbouring properties;
In respect of s 2.40(3)(e) of the Industry SEPP, fill to be exported from the site will be sought to be used within the Mamre Road Precinct or surrounding areas;
In respect of s 2.40(3)(f) of the Industry SEPP, the likelihood of disturbing relics has been addressed in previous assessments carried out for the SSD approval which approves bulk earthworks on the site and the assessments cover the entirety of the site;
In respect of s 2.40(3)(g) of the Industry SEPP, there are no waterways, drinking water catchments or environmentally sensitive areas near to the site that will be impacted by the proposed development;
In respect of s 2.40(3)(h) of the Industry SEPP, substantial design work has been carried out to avoid, minimise and mitigate impacts of the proposed development through its design. Conditions of consent have been agreed which further minimise, avoid and mitigate impacts;
In respect of s 2.40(3)(i) of the Industry SEPP, the site does not include any heritage items and the proposed earthworks will not impact the heritage items located to the north and north-west of the site. No archaeological sites are in proximity to the site, and the site is not located within a heritage conservation area; and
In respect of s 2.40(3)(j) of the Industry SEPP, no waterways are located in proximity to the site and accordingly, there is no visual impact as viewed from waterways.
Section 2.41 of the Industry SEPP applies to development requiring consent that is carried out on flood prone land. The parties advise that the proposed development is not situated on flood prone land and therefore s 2.41 of the Industry SEPP does not apply.
Section 2.42 of the Industry SEPP relates to heritage conservation. The parties advise that:
There are no heritage items located on the site, which is not located within a heritage conservation area or within an Aboriginal place of heritage significance; and
A number of archaeological and heritage assessments have been prepared as part of the assessment for the SSD approval.
Pursuant to s 2.43 of the Industry SEPP, a person must not clear native vegetation on land in Zone C2 Environmental Conservation Zone or Zone RE1 Public Recreation without development consent. The parties advise that no part of the site is zoned Zone C2 Environmental Conservation Zone or Zone RE1 Public Recreation, and accordingly, s 2.43 of the Industry SEPP does not apply to the proposed development.
Section 2.44 of the Industry SEPP relates to stormwater, water quality and water sensitive design. The parties advise that relevant matters concerning the proposed stormwater management strategy and how the development will meet the waterway health targets are detailed in the supporting documents filed with the Court, such that the Court may be satisfied for the purposes of s 2.44(2) of the Industry SEPP.
Pursuant to s 3.6 of the Industry SEPP, a consent authority must not grant consent to an application to display signage unless the consent authority is satisfied that the signage is consistent with the objectives set out in s 3.1(1)(a) of the Industry SEPP, and that the signage will satisfy the assessment criteria specified in Sch 5 of the Industry SEPP.
The parties advise that relevant matters concerning an assessment of the proposed signage against the objectives in s 3.1(1)(a) and Sch 5 of the Industry SEPP are detailed in the documents filed with the Court, such that the Court may be satisfied for the purposes of s 3.6 of the Industry SEPP.
Section 35 of the EPA Regulation relates to additional requirements for development applications in certain areas of Sydney. Pursuant to s 35(2)(d) of the EPA Regulation, a development application for land in the Mamre Road Precinct, identified as Precinct 12 on the Land Application Map under the Industry SEPP, Ch 2, must be accompanied by an assessment of the consistency of the development with the Mamre Road Precinct Structure Plan.
The parties advise that relevant matters concerning the assessment of consistency with the Mamre Road Precinct Structure Plan have been addressed in the amended SEE, such that the Court may be satisfied for the purposes of s35(2)(d) of the EPA Regulation.
The site is not located in the Aerotropolis area for the purposes of s 4.3(1) of State Environmental Planning Policy (Precincts – Western Parkland City) 2021 (Western Parkland City SEPP) under the Land Application Map. However, s 4.13, Pt 4.3, and s 4.27 apply to land that surrounds the land shown on the Land Application Map in the Western Parkland City SEPP.
Section 4.13 of the Western Sydney Parkland SEPP relates to additional permitted uses (as specified in Sch 1 of the Western Parkland City SEPP) that the parties advise are not relevant for the purposes of the proposed development.
Part 4.3 of the Western Parkland City SEPP relates to Development controls - Airport safeguards. The parties submit that the sections contained in Pt 4.3 of the Western Parkland City SEPP do not apply to the proposed development for the following reasons:
The proposed development does not fall within the definition of “noise sensitive development” under s 4.17 (5) of the Western Parkland City SEPP and accordingly, s 4.17 is not relevant to the assessment and determination of the DA;
The site is not within the “Wind Shear Assessment Trigger Area” and accordingly, s 4.18 of the Western Parkland City SEPP does not apply to the assessment and determination of the DA;
The site is located within the 13 km wildlife buffer zone on the Wildlife Buffer Zone Map in the Western Parkland City SEPP, however the proposed development is not a “relevant development” under s 4.19(4) of the Western Parkland City SEPP;
Section 4.20 of the Western Parkland City SEPP relates to electricity generating works and wind monitoring towers. Accordingly, s 4.20 of the Western Parkland City SEPP is not relevant to the assessment and determination of the DA;
The site is not located within the areas identified on the Lighting Intensity and Wind Shear Map in the Western Parkland City SEPP and accordingly, s 4.21 of the Western Parkland City SEPP does not apply to the assessment or determination of the DA;
The development does not penetrate the prescribed airspace and accordingly, s 4.22 of the Western Parkland City SEPP does not apply to the assessment or determination of the amended DA;
The site is not located in the ‘public safety area’ on the Public Safety Area Map in the Western Parkland City SEPP. Accordingly, s 4.23 of the Western Parkland City SEPP does not apply to the assessment or determination of the Amended DA; and
The Site is not located in the “Building Restricted Area” on the Building Restricted Area Map. Accordingly, s 4.23A of the Western Parkland City SEPP does not apply to the assessment or determination of the DA.
Section 4.27 of the Western Parkland City SEPP relates to Transport corridors. The parties advise that a referral to TfNSW is not triggered under this section as the site:
Is not within the marked transport corridor land (road, rail or metro) as shown on the Transport Corridor Map (s 4.27(1)(a) of the Western Parkland City SEPP refers);
Is not within 25 m of transport corridor land as shown on the Transport Corridor Map (s 4.27(1)(b) of the Western Parkland City SEPP); and
Is not on land within the 400 m zone of a train station as shown on the Transport Corridor Map (s 4.27(3) of the Western Parkland City SEPP).
Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable after remediation) for the purpose for which the development is proposed to be carried out.
The parties advise that:
The site has been remediated in accordance with the SSD Approval; and
A Site Remediation and Validation Report prepared by EP Risk dated 28 August 2024 is included in the amended SEE.
The Court is satisfied for the purposes of s 4.6 of the Resilience SEPP that the site is suitable for the proposed development.
Chapter 3 of the State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) relates to standards for non-residential development.
The parties advise that:
Chapter 3 of the Sustainable Buildings SEPP applies because the proposed development meets the criteria in s 3.1(a) that it involves the erection of a new building with an estimated development cost of $10 million or more;
The Court may be satisfied for the purposes of ss 3.2(1) and (2) of the Sustainable Buildings SEPP that relevant matters concerning the assessment of the proposed development against the relevant criteria in s 3.2(1) and a quantification of the embodied emissions required under s 3.2(2) are contained within the amended SEE.
Section 35BA of the EPA Regulation relates to embodied emissions for non-residential development under the Sustainable Buildings SEPP. Pursuant to s 35BA(1) of the EPA Regulation, a development application for non-residential development under the Sustainable Building SEPP must:
Disclose the amount of embodied emissions attributable to the development and be certified by certain persons, including a quantity surveyor; and
Describe the use of low emissions construction technologies in the development.
The amount disclosed under s 35BA(1)(a) must use the form published on the NSW planning portal as in force from time to time and use an itemised list of building materials for the development prepared by a quantity surveyor.
The parties advise that the amended SEE contains details of the relevant matters concerning the embodied emissions of the development and low emission construction technologies, and that the Court may be satisfied for the purposes of section 35BA(1) of the EPA Regulation.
The proposed development is a traffic generating development for the purposes of s 2.122 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP).
The parties advise that the amended DA was referred to TfNSW in accordance with s 2.122 of the Transport SEPP and s 2.35 of the Industry SEPP on 28 October 2025.
The parties advise that TfNSW has both a referral and concurrence role in relation to the amended DA, as follows:
Section 2.122 of the Transport SEPP requires the consent authority to provide written notice to TfNSW of the development application for developments considered a ‘traffic generating activity’. The proposed development is a ‘traffic generating activity for the purposes of the Table in Sch 3 of the Transport SEPP as it is a warehouse or distribution centre with a site area of more than 8,000 m2; and
Section 2.35 of the Industry SEPP states that consent must not be granted to development on the land identified on the Land Application Map in the Industry SEPP as Precinct 12 (Mamre Road) that has an estimated development cost of more than $200,000 without the concurrence of TfNSW (discussed at [67] – [69] above).
TfNSW provided concurrence to the proposed development (subject to conditions) on 17 November 2025.
Having considered the advice of the parties provided above at [24] - [111], I am satisfied that:
The Applicant’s further amended DA can be approved having regard to the matters in s 4.15(1)(b)-(e) of the EPA Act;
The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and
Approval of the proposed development is in the public interest.
Further, 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.
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.
The Court notes:
That Penrith City Council, as the consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), has approved the application for an amendment to development application DA24/0734 made on 27 January 2026 to rely on the documents specified below:
Amended Application Documents and Plans
| No. | Document | Date | Revision | Amendment | | 1. | Development Application Form | 30 September 2024 | | No Change - As included in Amended Application dated 17 October 2025 | | 2. | Owner’s Consent prepared by ESR | 8 August 2024 | | No Change - As included in Amended Application dated 17 October 2025 | | 3. | Owner’s Consent prepared by ESR | 24 September 2025 | | No Change - As included in Amended Application dated 17 October 2025 | | 4. | EDC Estimate Report prepared by Rider Levett Bucknall with marked changes from 19 August 2024 revision | 3 October 2025 | Project No: 18839, Revision 2 | No Change - As included in Amended Application dated 17 October 2025 | | 5. | ASIC Extract – ESR KECT (Australia) Pty Limited | 16 September 2024 | | No Change - As included in Amended Application dated 17 October 2025 | | 6. | Statement of Environmental Effects prepared by Colliers Urban Planning with marked changes from 19 September 2024 revision | 17 October 2025 | Revision C | No Change - As included in Amended Application dated 17 October 2025 | | 7. | Appendix A – EDC Estimate Report prepared by Rider Levett Bucknall with marked changes from 19 August 2024 revision | 3 October 2025 | | No Change - As included in Amended Application dated 17 October 2025 | | 8. | Appendix B - Architectural Drawings prepared by Nettleton Tribe | | | Amended - As annexed to Joint Expert Reports dated 23 December 2025 | | | 13212_DA000 – Cover Page | | | | | | 13212_DA001 - Location Plan & Context Plan | 12 December 2025 | P13 | | | | 13212_DA001A – OLS Mapping Diagrams | 12 December 2025 | P2 | | | | 13212_DA002 - Estate Plan | 16 December 2025 | P14 | | | | 13212_DA003 – Site Analysis | 12 December 2025 | P3 | | | | 13212_DA003A – Site Opportunities | 16 December 2025 | P4 | | | | 13212_DA004 – Site – Ground Floor Plan | 16 December 2025 | P28 | | | | 13212_DA102 – Roof Plan | 16 December 2025 | P17 | | | | 13212_DA121 – Office Plans | 16 December 2025 | P17 | | | | 13212_DA153 – Previous Area Plan | 12 December 2025 | P10 | | | | 13212_DA201 – Building Elevations Sheet 1 | 16 December 2025 | P18 | | | | 13212_DA202 – Building Elevations Sheet 2 | 16 December 2025 | P13 | | | | 13212_DA211 – Office Elevations | 16 December 2025 | P16 | | | | 13212_DA212 – Office Elevation | 16 December 2025 | P16 | | | | 13212_DA301 – Warehouse Sections | 16 December 2025 | P16 | | | | 13212_DA311 – Office Sections | 16 December 2025 | P6 | | | | 13212_DA321 – Boundary Sections – Sheet 1 | 12 December 2025 | P3 | | | | 13212_DA322 – Boundary Sections – Sheet 2 | 12 December 2025 | P4 | | | | 13212_DA323 – Boundary Sections – Sheet 1 | 12 December 2025 | P1 | | | | 13212_DA401 – Retaining Wall and Fence | 16 December 2025 | P12 | | | | 13212_DA402 – Lighting Layout | 12 December 2025 | P11 | | | | 13212_DA501 – Signage Plan | 12 December 2025 | P12 | | | | 13212_DA502 – Signage Details | 12 December 2025 | P10 | | | | 13212_DA601 – Fire Protection Plan | 12 December 2025 | P11 | | | | 13212_DA602 – Shadow Diagram Office | 16 December 2025 | P14 | | | | 13212_DA603 – Site Public Domain Solar Access – Winter Solstice | 16 December 2025 | P13 | | | | 13212_DA604 – Site Public Domain Solar Access – Equinox Solstice | 16 December 2025 | P3 | | | | 13212_DA605 – Site Public Domain Solar Access – Summer Solstice | 16 December 2025 | P3 | | | | 13212_DA611 – Height Encroachment Plan | 12 December 2025 | P11 | | | | 13212_DA701 – Area Plans | 12 December 2025 | P10 | | | 9. | Appendix C - Civil Drawings prepared by J. Wyndham Prince | | | Amended - As annexed to Joint Expert Reports dated 23 December 2025 | | | 110965-06-CD001 - Westlink - Abbotts Road, Kemps Creek Lot 2 DA Cover Sheet | 12 December 2025 | G | | | | 110965-06-CD002 - Civil Plan Index, Notes & Legend | 17 December 2025 | I | | | | 110965-06-CD003 - Overall Site Plan | 17 December 2025 | F | | | | 110965-06-CD006 – Pavement Plan | 12 December 2025 | H | | | | 110965-06-CD010 – Cut & Fill Site Plan | 17 December 2025 | F | | | | 110965-06-CD011 - Site Sections – Sheet 1 | 12 December 2025 | F | | | | 110965-06-CD012 – Site Sections – Sheet 2 | 17 December 2025 | G | | | | 110965-06-CD015 – Rock Excavation Plan | 17 December 2025 | B | | | | 110965-06-CD100 – Engineering Plan – Sheet 1 | 17 December 2025 | I | | | | 110965-06-CD101 – Engineering Plan – Sheet 2 | 17 December 2025 | I | | | | 110965-06-CD102 – Engineering Plan – Sheet 3 | 17 December 2025 | I | | | | 110965-06-CD150 – OSD Tank Plan | 17 December 2025 | I | | | | 110965-06-CD200 – Catchment Plan | 17 December 2025 | H | | | | 110965-06-CD300 – Drainage Details | 17 December 2025 | F | | | | 110965-06-CD301 – Drainage Sections | 17 December 2025 | F | | | | 110965-06-CD302 – Special Drainage Details | 17 December 2025 | B | | | | 110965-06-CD400 – Retaining Wall & Pavement Edge Treatment Plan | 17 December 2025 | C | | | | 110965-06-CD401 - Retaining Wall Longitudinal Sections – Sheet 1 | 17 December 2025 | G | | | | 110965-06-CD402 - Retaining Wall Longitudinal Sections – Sheet 2 | 17 December 2025 | G | | | | 110965-06-CD403 - Retaining Wall Longitudinal - Sections – Sheet 3 | 12 December 2025 | G | | | | 110965-06-CD404 - Typical Section RW1 – Sheet 1 | 17 December 2025 | G | | | | 110965-06-CD405 - Typical Section RW2 – Sheet 1 | 17 December 2025 | H | | | | 110965-06-CD406 - Typical Section RW3 – Sheet 1 | 17 December 2025 | D | | | | 110965-06-CD407 - Typical Section RW4 & Car Park/Landscape Typical – Sheet 1 | 17 December 2025 | B | | | | 110965-06-CD408 - Retaining Wall Typical Details – Sheet 1 | 12 December 2025 | A | | | | 110965-06-CD409 - Typical Section RW2 – Sheet 2 | 17 December 2025 | B | | | | 110965-06-CD600 – Interim Stormwater Management Plan | 17 December 2025 | G | | | | 110965-06-CD650 - Soil & Water Management Plan | 17 December 2025 | F | | | | 110965-06-CD651 – Soil & Water Management Notes | 3 October 2025 | D | | | | 110965-06-CD652 – Soil & Water Management Details | 3 October 2025 | D | | | 10. | Appendix D - Landscape Drawings prepared by Site Image | | | | | | 000 - Landscape Coversheet | 20 January 2026 | M | Amended - Prepared in response to Respondent’s letter of 13 January 2026 | | | 001 – Canopy Coverage Plan | 17 December 2025 | F | Amended - As annexed to Joint Expert Reports dated 23 December 2025 | | | 101 – Landscape Plan | 22 December 2025 | M | Amended - As annexed to Joint Expert Reports dated 23 December 2025 | | | 102 – Landscape Plan | 22 December 2025 | M | Amended - As annexed to Joint Expert Reports dated 23 December 2025 | | | 103 – Landscape Plan | 22 December 2025 | N | Amended - As annexed to Joint Expert Reports dated 23 December 2025 | | | 104 – Landscape Plan | 22 December 2025 | J | Amended - As annexed to Joint Expert Reports dated 23 December 2025 | | | 501 – Landscape Details | 23 January 2026 | FG | Amended - Prepared in response to Respondent’s letter of 13 January 2026 | | | 601 – Landscape Sections | 23 January 2026 | H | Amended - Prepared in response to Respondent’s letter of 13 January 2026 | | | 602 – Landscape Sections | 23 January 2026 | I | Amended - Prepared in response to Respondent’s letter of 13 January 2026 | | | 603 – Landscape Sections | 23 January 2026 | G | Amended - Prepared in response to Respondent’s letter of 13 January 2026 | | | 604 – Landscape Sections | 18 December 2025 | B | Amended - As annexed to Joint Expert Reports dated 23 December 2025 | | | 605 – Landscape Sections | 18 December 2025 | B | Amended - As annexed to Joint Expert Reports dated 23 December 2025 | | | 701 – Irrigation Scoping Plan | 12 December 2025 | B | Amended - As annexed to Joint Expert Reports dated 23 December 2025 | | 11. | Appendix E – Statutory Compliance Table prepared by Colliers Urban Planning with marked changes from 19 September 2024 revision | 17 October 2025 | | No Change - As included in Amended Application dated 17 October 2025 | | 12. | Appendix F – Mamre Road Precinct DCP Compliance Table prepared by Colliers Urban Planning with marked changes from 19 September 2024 revision | 17 October 2025 | | No Change - As included in Amended Application dated 17 October 2025 | | 13. | Appendix G – Urban Design Report prepared by Nettleton Tribe | October 2025 | | No Change - As included in Amended Application dated 17 October 2025 | | 14. | Appendix H – Visual Impact Assessment prepared by Geoscapes Landscape Architects | 21 January 2026 | D | Amended - Prepared in response to Respondent’s letter of 13 January 2026 | | 15. | Appendix I – Traffic Assessment prepared by Ason Group with marked changes from 14 August 2024 revision | 15 October 2025 | Version 2 | No Change - As included in Amended Application dated 17 October 2025 | | 16. | Appendix J – Noise and Vibration Impact Assessment prepared by SLR with marked changes from 15 August 2024 revision | 13 October 2025 | Revision 1.1 | No Change - As included in Amended Application dated 17 October 2025 | | 17. | Appendix K – Water and Stormwater Management Plan prepared by J. Wyndham Prince with marked changes from 4 September 2024 revision Note: See No. 43 for Estate-wide Water Quality Analysis prepared by J. Wyndham Prince | 16 October 2025 | Issue E | No Change - As included in Amended Application dated 17 October 2025 | | 18. | Appendix L – Heritage Impact Statement prepared by Urbis | 4 September 2024 | | No Change - As included in Amended Application dated 17 October 2025 | | 19. | Appendix M – Site Remediation and Validation Report prepared by EP Risk | 28 August 2024 | Version 1 | No Change - As included in Amended Application dated 17 October 2025 | | 20. | Appendix N – Bushfire Hazard Assessment prepared by Black Ash Bushfire Consulting | 14 October 2025 | Version 1.0 | No Change - As included in Amended Application dated 17 October 2025 | | 21. | Appendix O – Waste Management Plan prepared by SLR with marked changes from 2 August 2024 revision | 3 October 2025 | Revision 4.0 | No Change - As included in Amended Application dated 17 October 2025 | | 22. | Appendix P – Geotechnical Investigation prepared by Douglas Partners | 7 September 2022 | Project 92352.03, Revision 0 | No Change - As included in Amended Application dated 17 October 2025 | | 23. | Appendix Q(1) – Geotechnical Advice on Rock prepared by Douglas Partners | 4 October 2022 | Project 92352.03, R.003.Rev 0 | No Change - As included in Amended Application dated 17 October 2025 | | 24. | Appendix QQ – Geotechnical Advice on Rock prepared by Douglas Partners | 16 October 2025 | Project 92352.03, R.029, Revision 0 | No Change - As included in Amended Application dated 17 October 2025 | | 25. | Appendix QQQ – Report on Updated Concept Design of Lot 2 Retaining Wall prepared by Douglas Partners | 25 August 2025 | Project 92352.03, Revision 3 | No Change - As included in Amended Application dated 17 October 2025 | | 26. | Appendix R – Embodied Emissions Material Form prepared by Rider Levett Bucknall | 3 October 2025 | | No Change - As included in Amended Application dated 17 October 2025 | | 27. | Appendix S – Regulatory Compliance Report prepared by Mckenzie Group | 3 October 2025 | Revision B | No Change - As included in Amended Application dated 17 October 2025 | | 28. | Appendix T – Fire Safety Strategy prepared by Affinity Fire Engineering | 30 September 2025 | Revision 03 | No Change - As included in Amended Application dated 17 October 2025 | | 29. | Appendix U – Operational Environmental Management Plan prepared by Aspect Environmental (see summary at No. 45) | 9 October 2025 | Revision 03 | No Change - As included in Amended Application dated 17 October 2025 | | 30. | Appendix V– Operational Traffic Management Plan prepared by Ason Group | 3 October 2025 | Issue 01 | No Change - As included in Amended Application dated 17 October 2025 | | 31. | Appendix W – Landscape Management Plan prepared by Site Image Landscape Architects | 19 December 2025 | 06 | Amended - As annexed to Joint Expert Reports dated 23 December 2026 | | 32. | Appendix X – Salinity Management Plan prepared by Douglas Partners | 10 July 2025 | Revision 0 | No Change - As included in Amended Application dated 17 October 2025 | | 33. | Appendix Y – Aviation Safeguarding prepared by SLR Consulting | 9 October 2025 | Revision R01-v1.1 | No Change - As included in Amended Application dated 17 October 2025 | | 34. | Appendix Z – Weed Eradication Management Plan prepared by Aspect Environmental | 3 September 2025 | Revision 1 | No Change - As included in Amended Application dated 17 October 2025 | | 35. | Appendix AA1 – Aboriginal Cultural Heritage Letter of Advice prepared by Biosis | 11 September 2025 | | No Change - As included in Amended Application dated 17 October 2025 | | 36. | Appendix AA2 – Aboriginal Cultural Heritage Technical Report prepared by Urbis | 12 April 2022 | | No Change - As included in Amended Application dated 17 October 2025 | | 37. | Appendix AA3 – Aboriginal Cultural Heritage Assessment prepared by Urbis | 17 June 2021 | F01 | No Change - As included in Amended Application dated 17 October 2025 | | 38. | Appendix BB – Air Quality Technical Memorandum prepared by SLR Consulting | 28 August 2025 | | No Change - As included in Amended Application dated 17 October 2025 | | 39. | Appendix CC – Arboricultural Advice prepared by H20 Consulting Group | 1 September 2025 | | No Change - As included in Amended Application dated 17 October 2025 | | 40. | Appendix DD – Sustainability Letter prepared by ESR | 28 August 2025 | | No Change - As included in Amended Application dated 17 October 2025 | | 41. | Appendix EE – Stage 2 State Significant Development Consent | 3 October 2025 | | No Change - As included in Amended Application dated 17 October 2025 | | 42. | Appendix FF – Photomontages prepared by Dickson Rothschild | 19 December 2025 | | Amended - As annexed to Joint Expert Reports dated 23 December 2025 | | 43. | J. Wyndham Prince Analysis of Estate-wide Water Quality and Flow MUSIC Assessment | 16 October 2025 | | No Change - As included in Amended Application dated 17 October 2025 | | 44. | Flow Duration Model and MUSIC Model | 16 October 2025 | | No Change - As included in Amended Application dated 17 October 2025 | | 45. | Operational Environmental Management Plan Summary Statement prepared by Gyde | 15 December 2025 | 1 | Amended - As annexed to Joint Expert Reports dated 23 December 2025 | | 46. | Irrigation of the Northern and Eastern Boundary Landscape Areas Cover Letter prepared by J. Wyndham Prince | 15 December 2025 | 1 | Amended - As annexed to Joint Expert Reports dated 23 December 2025 | | 47. | Landscape Planting within APZ – Bushfire Opinion Letter by Blackash Bushfire Consulting | 18 December 2025 | - | Amended - As annexed to Joint Expert Reports dated 23 December 2025 | | 48. | Interim Irrigation Pond Letter prepared by J. Wyndham Prince | 15 January 2026 | | Amended - Prepared in response to Respondent’s letter of 13 January 2026 | | 49. | SK_801 - Landscape Access and Maintenance Plan prepared by Site Image | 20 January 2026 | B | Amended - Prepared in response to Respondent’s letter of 13 January 2026 | | 50. | Soil Stability Letter prepared by SESL | 21 January 2026 | | Amended - Prepared in response to Respondent’s letter of 13 January 2026 | | 51. | Arborist Letter prepared by Arborism | 21 January 2026 | | Amended - Prepared in response to Respondent’s letter of 13 January 2026 | | 52. | Landscape Maintenance Letter prepared by Leathwood | 21 January 2026 | | Amended - Prepared in response to Respondent’s letter of 13 January 2026 |
The Court orders:
Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $7,000 within 28 days of these orders.
The appeal is upheld.
Development Application DA 24/0734, as amended, seeking consent for construction, fitout and use of a (single occupancy) warehouse and distribution centre, with associated works including earthworks, retaining walls, stormwater management works, car parking, fencing, landscaping and business identification type signage at 290-308 Aldington Road and 59-72 Abbotts Road, Kemps Creek NSW, 2178, contained in part of Lot 2 DP1321939 (formerly Lots 111, 112 and 113 in Deposited Plan 1296469) is determined by the grant of development consent subject to the conditions at Annexure A.
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Annexure A (334 KB, pdf)
ESR Developments (Australia) Pty Ltd
Penrith City Council [2026] NSWLEC 1113