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[2026] NSWLEC 1173
General information, not legal advice.
Land and Environment Court (NSW)
2026-03-31
Kullen AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Investment 8888 Pty Limited v Blacktown City Council [2026] NSWLEC 1173
Hearing dates: Conciliation conferences on 9 and 10 February 2026
Date of orders: 31 March 2026
Decision date: 31 March 2026
Jurisdiction: Class 1
Before: Kullen AC
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted to development application No. DA-25-00470, as amended, for the removal of 126 trees, civil and bulk earthworks, Torrens title subdivision of land into 10 lots and construction of 2 local roads on land known as Lot 52 in DP 1045578, Beames Avenue, Rooty Hill, NSW, 2766, subject to the conditions at Annexure A.
Catchwords: DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders
Legislation Cited: Biodiversity Conservation Act 2016 (NSW), Pt 6, ss 6.3A, 6.5, 7.2, 7.7, 7.13
Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17, 7.28, 8.7, 8.15, Sch 1, s 7
Land and Environment Court Act 1979 (NSW), s 34
Biodiversity Conservation Regulation 2017 (NSW), ss 6.7, 7.1, 7.2, 7.3
Blacktown Local Environmental Plan 2015, cll 2.2, 2.3, 2.6, 2.7, 4.1, 5.21, 7.2, 7.5
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch2, Pt 2.3, s 2.9, Ch 6, Div 2, Pt 6.2
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Cases Cited: Stewart v Inner West Council [2023] NSWLEC 136
Texts Cited: Blacktown Community Engagement Strategy and Community Participation Plan 2024-2028
Blacktown Development Control Plan 2015
Category: Principal judgment
Parties: Investment 8888 Pty Ltd (Applicant)
Blacktown City Council (Respondent)
Representation: Counsel:
J Reid (Applicant)
L Nurpuri (Respondent)
Solicitors:
Blacktown City Council (Respondent)
File Number(s): 2025/229495
Publication restriction: Nil
The DA sought consent for tree removal, civil and bulk earthworks, Torrens title subdivision and construction of 2 local roads on land at Beames Avenue, Rooty Hill, NSW, 2766, legally known as Lot 52 in DP1045578 (the site).
Specifically, the DA sought consent for the following:
Subdivision of land into 11 lots;
Construction and dedication of a full width (15 metre) public road (as a continuation of Brussels Crescent) running east to west, providing a connection between the “missing” sections of the existing road to facilitate creation of a loop road;
Construction and dedication of a half width (6.5m) public road running north to south, abutting the existing half-width road to complete Radalj Close as a full width cul-de-sac
Removal of all trees together with all native and non-native vegetation on the site; and
Associated drainage and bulk earthworks.
The DA was lodged with Blacktown City Council (the Respondent) on 14 April 2025.
The Respondent notified neighbouring residents of the DA by letters, placed a sign on the site, and advertised the DA on Blacktown City Council’s website from 21 May 2025 to 19 June 2025. Four submissions were received by the Respondent in response to the notification.
On 16 June 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 29 July 2025, the Respondent filed a Statement of Facts and Contentions (SOFAC) with the Court.
On 5 February 2026, the Respondent agreed to the Applicant amending the DA, with leave of the Court. The Respondent filed an amended SOFAC with the Court on 5 February 2026, referring to the amended DA.
The amended DA included the following changes and additional supporting material:
A reduction in lots from 11 to 10;
Removal of 134 trees and retention of 66 trees;
Revised Biodiversity Development Assessment Report (BDAR) pursuant to s 7.7(3) of the Biodiversity Conservation Act 2016 (NSW) (BC Act) prepared; and
Amended Vegetation Management Plan (VMP) prepared.
On 4 November 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 parties were not able to reach an agreement, and the s 34 conciliation conference was terminated by the Court on 4 November 2025. The matter was adjourned for a hearing on 9 and 10 February 2026.
The on-site view was held on 9 February 2026. No submitters attended.
The Joint Expert Reports on Tree Removal and Development and Drainage Engineering were filed with the Court on 23 December 2025. The Joint Expert Report on Biodiversity was filed with the Court on 24 December 2025. These reports addressed the DA as originally lodged with the Respondent.
The parties identified the need to update the Joint Expert Reports on Tree Removal and Biodiversity. At the parties’ request I directed that a short biodiversity addendum report be filed and served by 9:30AM on 10 February 2026.
The Applicant sought, and the Respondent has approved, a further amendment of the DA (the further amended DA) pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (the Regulation) to address the issues raised in the Amended SOFAC.
The parties reached a s 34 agreement on the proposed development on the second day of the hearing. The s 34 agreement was submitted to the Court on 10 February 2026 and subsequently filed with the Court on 13 February 2026 with the amended plans and documentation. The hearing was adjourned.
The s 34 agreement is based on the further amended plans and documents in the further amended DA which the Applicant advised now include:
Reduction in the building footprint of Lot 2 and amended landscape plan;
Removal of 126 trees;
Further amended landscape plan, VMP and Tree Protection Plan; and
Updated BDAR.
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 13 February 2026 (a further amended version filed with the Court on 5 March 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. This decision involved the Court upholding the appeal and granting development consent to the amended DA subject to conditions.
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 jurisdictional note accompanying the s 34 agreement, and those requirements have been satisfied as follows.
The DA was publicly exhibited in accordance with Blacktown City Council’s Community Engagement Strategy and Community Participation Plan 2024-2028 (the BCPP) between 21 May 2025 and 19 June 2025. Four submissions were received during the notification period.
The parties advise that the amended DA was not required to be renotified under the BCPP at the discretion of the Council.
The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.
Section 7.28 of the EPA Act relates to Housing and productivity contributions imposed as conditions of development consent. The parties advise that:
A Ministerial planning order applies to require a housing and productivity contribution to be made in relation to the development; and
Condition of consent 9.2.1 imposes the condition required by s 7.28 of the EPA Act.
Section 7.2 of the BC Act relates to Development or activity “Likely to significantly affect threatened species”. The parties advise that:
For the purposes of s 7.2 of the BC Act, the proposed development is likely to significantly affect threatened species (Cumberland Plain Woodland). The clearing of native vegetation will exceed the biodiversity offsets scheme threshold prescribed by s 7.1 of the Biodiversity Conservation Regulation 2017 (BC Regulation) as it involves the clearing of native vegetation that exceeds the threshold in s 7.2(4) of the BC Regulation; and
The land is also nominated on the Biodiversity Values Map published under s 7.3 of the BC Regulation.
Section 7.7 of the BC Act relates to Biodiversity Assessment for Part 4 development (other than State significant development or complying development). The further amended DA is accompanied by a version 3 BDAR dated 10 February 2026. The parties advise that:
The BDAR is required where a proposed development is likely to significantly affect threatened species, in this case Cumberland Plain Woodland in the Sydney Basin Bioregion (Threatened Ecological Community). The BDAR was prepared by a suitably accredited person for the purposes of the BC Act;
The BDAR has been prepared pursuant to the biodiversity offsets scheme in Pt 6 of the BC Act and addresses the avoid, minimise and offset hierarchy principle at s 6.3A of the BC Act; and
The BDAR concludes that there will not be a serious and irreversible impact on biodiversity values pursuant to s 6.5 of the BC Act and s 6.7 of the BC Regulation.
Section 7.13(3) of the BC Act relates Development other than State significant development or infrastructure and applies to the proposed development. The parties advise that in relation to this section, the updated BDAR has been taken into consideration and a Condition of consent imposed to retire 8 biodiversity credits to offset the residual impact on biodiversity values of the number and class specified in the updated BDAR.
The further amended DA proposes removal of 126 trees to facilitate the proposed development. The parties advise that the matters arising under Ch 2 of the State Environmental Planning policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) do not apply to the proposed development, and as such, are not a jurisdictional requirement for the Court to consider. This is because the Applicant has not applied to remove the trees under permit but rather seeks development consent to remove the trees under the EPA Act. The Applicant has submitted an updated Tree Inspection & Arboricultural Impact Assessment as part of the supporting documentation for the further amended DA.
This is consistent with the decision in Stewart v Inner West Council [2023] NSWLEC 136 (paragraph 26), in which the Court found that the scheme for a permit to clear vegetation under Pt 2.3 of the Biodiversity SEPP is separate from the scheme under the EPA Act. Where a development consent is required under the EPA Act, a permit cannot be issued under the Biodiversity SEPP.
Additionally, s 2.9(1) of the Biodiversity SEPP states that: “This Part applies to vegetation in any non-rural area of the State that is declared by a development control plan to be vegetation to which this Part applies.” Clause 5.3.5 in Part A of the Blacktown Development Control Plan 2015 (the DCP) provides approval pathways. Where clearing is not subject to the Biodiversity Offset Scheme, a permit would be the approval pathway. As the area of land proposed to be cleared is over 0.25 hectares (see s 7.2 in the BC Regulation), the Biodiversity Offset Scheme applies and the development is subject to a development application and a permit is not required.
The site is mapped as being within the Hawkesbury-Nepean Catchment under the Biodiversity SEPP. Chapter 6 (Water Catchments) of the Biodiversity SEPP applies to the DA. The consent authority must consider the matters in Div 2 of Pt 6.2 in Ch 6 of the Biodiversity SEPP.
The parties advise that the DA is supported by Civil Engineering and Stormwater Plans and a supporting Stormwater Management Strategy Report, which demonstrate that the proposed development can comply with the relevant water quality and quantity targets and would not cause any significant impacts on the catchment area.
In relation to the provisions of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP), s 4.6 requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use.
The parties submit that:
The DA is supported by a Preliminary and Detailed Site Investigation (PSI/DSI) prepared by Sydney Environmental Group Pty Ltd dated 19 March 2025;
The PSI/DSI concludes that the site is unlikely to be contaminated and generally suitable for the proposed development, subject to the recommendations in the PSI/DSI being implemented; and
Conditions consistent with the recommendations of the report are imposed in the Conditions of consent.
I am satisfied for the purposes of s 4.6 of the Resilience SEPP that the site is suitable for the proposed development.
The Blacktown Local Environmental Plan 2015 (the LEP) is the principal environmental planning instrument that applies to the site and to the proposed development. The site is zoned R2 - Low Density Residential pursuant to cl 2.2 of the LEP. Clause 2.3(2) of the LEP requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
The parties advise that the further amended DA is consistent with the objectives of the R2 Zone and in particular with the first objective ‘To provide for the housing needs of the community within a low density residential environment’.
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.
Subdivision of land is permitted with consent under cl 2.6 of the LEP. The minimum subdivision lot under the LEP is 450m2 pursuant to cl 4.1 of the LEP. The parties advise that each of the proposed lots exceeds this standard.
Clause 5.21 of the LEP relates to Flood planning. The parties advise that the site is affected by overland flow and is nominated on Council’s maps as ‘low flood risk and medium flood risk’ (as identified in the amended SOFAC).
The parties submit that:
The proposal includes filling of the site to the north and a condition has been imposed to ensure future dwellings on lots 1 and 2 have a finished floor level above the flood level (condition of consent 9.14.1); and
A Flood Impact and Risk Assessment has been prepared by Living Water Engineering Pty Ltd dated 3 October 2025 and considered in the Engineering Joint Report filed on 23 December 2025. The flood report contains information to achieve satisfaction of the matters in cl 5.21(2) and (3).
Clause 7.2 of the LEP relates to Terrestrial biodiversity. The parties advise that the site is mapped on the Terrestrial Biodiversity Map in the LEP and that:
Clause 7.2(3) of the LEP requires the consent authority to consider the matters in cl 7.2(3) (a)-(b). Those matters are addressed in the BDAR and VMP;
The consent authority can be satisfied of the matters in cl 7.2(4) as the proposal has been designed to achieve residential lots, consistent with the Council’s road pattern and nominates building envelopes to ensure that residential dwellings will be appropriately located in the future; and
The VMP includes mitigation measures which are also reflected in the landscape plan.
Clause 7.5 of the LEP relates to Essential Services. The parties advise that the essential services are available or adequate arrangements have been made to make them available when required
Having considered the advice of the parties provided above at [22]-[46], 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.
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.
The Court notes that:
Blacktown City Council, as the relevant 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 No DA-25-00470 made on 10 February 2025 to rely on the documents specified below:
| Drawing Title and No./Rev. | Prepared By | Date | | BUILDING ENVELOPE PLAN A06 REV. Y | JANSSEN DESIGNS | 10/02/2026 | | LANDSCAPE PLANS DA 1-4 TO 4-4, REV E | VISION DYNAMICS PTY LTD | 10/02/2026 | | BDAR Version 3 | ANNE CLEMENTS & ASSOCIATES PTY LTD | 10/02/2026 | | VEGETATION MANAGEMENT PLAN Version 4 | ANNE CLEMENTS & ASSOCIATES PTY LTD | 10/02/2026 | | PRELIMINARY TREE INSPECTION & ARBORICULTURAL IMPACT ASSESSMENT | TREEHAVEN ENVIRONSCAPES | 10/02/2026 | | TREE PROTECTION PLAN | TREEHAVEN ENVIRONSCAPES | 10/02/2026 |
The Court orders:
The appeal is upheld.
Development consent is granted to development application No. DA-25-00470, as amended, for the removal of 126 trees, civil and bulk earthworks, Torrens title subdivision of land into 10 lots and construction of 2 local roads on land known as Lot 52 in DP 1045578, Beames Avenue, Rooty Hill, NSW, 2766, subject to the conditions at Annexure A.
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Annexure A (431 KB, pdf)
Investment 8888 Pty Limited
Blacktown City Council [2026] NSWLEC 1173