McDonald's Australia Limited v Wollongong City Council

Cases Cited: McDonald’s Australia Limited v Wollongong City Council (No 3) [2021] NSWLEC 1773

Texts Cited: Wollongong Community Participation Plan 2023
Wollongong Development Control Plan 2009

Category: Principal judgment

Parties: McDonald's Australia Limited (Applicant)
Wollongong City Council (Respondent)

Representation: Counsel:
R Pleming (Solicitor) (Applicant)
J Reilly (Solicitor) (Respondent)
Solicitors:
Allens (Applicant)
Wollongong City Council (Respondent)

File Number(s): 2025/276067

Publication restriction: Nil

JUDGMENT

1. These proceedings relate to a Modification Application No DA-2019/1273/A (Modification Application) made directly to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment 1979 (NSW) (EPA Act) for the modification of a Development Consent DA-2019/1273 granted by the Court on 17 September 2021 in McDonald’s Australia Limited v Wollongong City Council (No 3) [2021] NSWLEC 1773 (Original Consent).

2. The Original Consent approved the construction and use of a food and drink premises and the construction of four commercial tenancies, one ingress/egress driveway from West Dapto Road, 52 car parking spaces, business identification signage, communal open space areas and landscaping and other minor site works at 1-9 Raven Street Wongawilli (Lots 336 and 337 in Deposited Plan 124313) (Site). The proposed modifications involve changes to conditions to enable the phasing of development of 'early phase works' and alterations to access and entry arrangements of the food and drink premises.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 24 November 2025. I presided over the conciliation conference. The parties reached agreement as to the terms of a decision in the proceedings that would be acceptable, which is recorded in the parties’ executed s 34 agreement filed on 19 February 2026.

4. 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.

5. In this case the parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the consent subject to agreed conditions. The jurisdictional preconditions to the exercise of that the power are addressed in the parties’ joint submission filed with the s 34 agreement. After a consideration of the submissions and the documents filed with the s 34 agreement and within the Class 1 appeal and relevant matters under s 4.15(1) of the EPA Act I am satisfied that there is no jurisdictional impediment to the orders sought in the s 34 agreement. In that regard I note the following.

Jurisdictional Considerations

EPA Act

6. Section 4.55(8) provides that the Court has power to determine the Modification Application in accordance with s 4.55(2) of the EPA Act given that the Original Consent was granted by the Court.

7. As required by s 4.55(2)(a), I am satisfied that the development to which the Modification Application relates is the same, or substantially the same, development as the development for which consent was granted by the Original Consent. The changes proposed by the Modification Application are limited to bringing forward in the construction programme a portion of the approved work under the Original Consent to enable physical commencement and minor changes to the location of parking spaces and ramps and signage.

8. As required by s 4.55(2)(b), the Council has consulted with the NSW Rural Fire Service (RFS) in respect of the Modification Application given that the Original Consent included conditions of consent referring to GTAs issued by the RFS. Following the amendment the Modification Application was re-referred to RFS and the RFS has confirmed it raises no objections to the Modification Application.

9. As required by s 4.55(2)(c), the Modification Application was publicly notified by the Council for a period of 14 days in accordance with the Council’s Community Participation Plan 2023 between 1-14 August 2025. The Council received a total of four submissions in response to the notification of the Modification Application. The Respondent filed a copy of these submissions (titled “List of Objectors”) on 20 November 2025.

10. As required by section 4.55(2)(d), the parties have considered the four submissions to the notification and the Council is satisfied that they do not raise matters relevant to the Modification Application or are otherwise already addressed by the assessment materials prepared in support of the Modification Application.

11. Section 4.55(3) required consideration of the matters listed in section 4.15(1) of the EPA Act which are of relevance to the Modification Application. The reasons given by the Court for granting the Original Consent have been included within, and considered by, the Modification Application.

Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg)

12. The owner of the Site, being McDonald’s Australia Limited, has made the application to modify the Original Consent in the approved form, containing all of the information and documents as required, and made directly to the Court pursuant to section 4.55(8) of the EPA Act. It has been submitted on the NSW planning portal and assigned PAN number PAN-555306.

13. The Modification Application was also accompanied by the information required by section 100(1) of the EPA Reg, and notification as required by section 107(3), and for the minimum period specified at Schedule 1, clause 10 of the EPA Act has been undertaken.

State Environmental Planning Policies

14. The evidence is that the Modification Application, having a narrow scope of changes, does not alter compliance with the applicable controls, and remains consistent with the assessment for the determination of the Original Consent, under the following Statement Environmental Planning Policies:

15. State Environmental Planning Policy (Transport and Infrastructure) 2021 – no changes are proposed to the development yield or vehicular access arrangements for the development;

16. State Environmental Planning Policy (Resilience and Hazards) 2021 – no changes are proposed which impact the suitability of the Site for development; and

17. State Environmental Planning Policy (Industry and Employment) 2021 – the Modification Application does not alter the approved signage strategy in the Original Consent, other than the minor adjustment of the location of two signs for the food and drink premises to accommodate the adjusted entry doorway location.

Wollongong Local Environmental Plan 2009

15. The Modification Application does not propose any alterations to the development approved by the Original Consent which alter compliance with the Wollongong Local Environmental Plan 2009, given the confined scope of the proposed Modification Application and remains consistent with the assessment for the determination of the Original Consent.

Wollongong Development Control Plan 2009

16. The Modification Application does not alter the compliance of the development with the controls and remains consistent with the assessment for the determination of the Original Consent.

Conclusion

17. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, in accordance with s 34(3)(a) of the LEC Act I make the following orders.

Orders

18. The Court orders:

19. The modification application pursuant section 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) is approved.

20. Development Consent No. DA-2019/1273, granted by the Court in proceedings 2020/210503 on 17 December 2021 and relating to the land located at 1-9 Raven Street Wongawilli (Lots 336 and 337 in Deposited Plan 124313), is modified in the terms in Annexure A.

21. Development Consent No. DA-2019/1273 as modified by the Court is Annexure B.

S Dixon

Senior Commissioner of the Court

276067.25 Dixon SC (Annexures A and B) (4.04 MB, pdf)

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