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[2026] NSWLEC 1206
General information, not legal advice.
Land and Environment Court (NSW)
2026-04-16
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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: Micallef v Hawkesbury City Council [2026] NSWLEC 1206
Hearing dates: Conciliation conference on 7 April 2026
Date of orders: 16 April 2026
Decision date: 16 April 2026
Jurisdiction: Class 1
Before: Washington C
Decision: The Court orders:
(1) The appeal is upheld.
(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of the amendments to the development application, in the agreed amount of $10,000.00, within 21 days of the date these orders are made.
(3) Development Application No. DA0140/23, as amended, for alterations to an existing warehouse building, demolition of remaining existing structures, tree removal, construction of 3 warehouse buildings resulting in a total of 11 units across the site and associated carparking and strata subdivision on the land at 62 Drummond Street, South Windsor is determined by a grant of consent subject to conditions contained in Annexure A.
Catchwords: DEVELOPMENT APPLICATION – alterations and additions to a warehouse building – construction of warehouse buildings – conciliation conference – agreement between the parties – orders
Legislation Cited: Biodiversity Conservation Act 2016 (NSW), ss 7.2, 7.3, 7.7
Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7, 8.15
Land and Environment Court Act 1979 (NSW)
NSW Reconstruction Authority Act 2022 (NSW), s 38
Environmental Planning and Assessment Regulations (NSW), s 38
Hawkesbury Local Environmental Plan 2012, cll 6.1, 6.2, 6.4, 6.7
State Environmental Planning Policy (Biodiversity Conservation) 2021, Ch 4, 6, ss 4.9, 6.6, 6.7, 6.8, 6.9, 6.10, Sch 2
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Category: Principal judgment
Parties: Victor George Micallef (Applicant)
Hawkesbury City Council (Respondent)
Representation: Counsel:
C Novak (Applicant)
A Foley (Solicitor) (Respondent)
Solicitors:
GLC Legal (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2025/175269
Publication restriction: Nil
COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Hawkesbury City Council, of Development Application DA0140/23 which seeks consent for alterations and additions to an existing warehouse building, demolition of remaining existing structures, tree removal, construction of 4 warehouse buildings and associated carparking and strata subdivision at 62 Drummond St, South Windsor, Lot 100 DP 1263106.
These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
An initial conciliation conference was held in September 2025, which was unsuccessful. A hearing was subsequently arranged by the Court, however prior to that hearing the parties resolved the issues in dispute between them and requested the Court arrange a further conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act). This was held on 7 April 2026.
At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.
As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Council agreed to the applicant amending the development application to resolve their contentions. These amendments included:
Reconfigured design to provide for additional vegetation retention and increased landscaping
Amendments to the Vegetation Management Plan (VMP) and Streamlined Biodiversity Development Assessment Report (BDAR), both by Anderson Environmental dated 1 April 2026.
Increased landscaping and retention of further existing trees
The provision of additional information.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained. From this I note the following points.
The development application was made with the written consent of the owner of the land.
The application was adequately notified from 19 July 2023 to 1 August 2023. One submission was received, but no oral submissions were made at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions.
The proposed development includes clearing of some native vegetation, and is likely to significantly affect threatened species as defined by s 7.2 of the Biodiversity Conservation Act 2016 (NSW) (BC Act), and as per the test in s 7.3. The proposed clearing will include some vegetation from the critically endangered ecological community of Shale Gravel Transition Forest. Accordingly, pursuant to s 7.7(2) of the BC Act, the development is accompanied by a BDAR. This confirms that the development will not result in any serious and irreversible impact to biodiversity values, due to the avoidance of the most significant and highest quality vegetation, and the implementation of the VMP by conditions of consent.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H) requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. From the parties’ submission, the Preliminary Site Investigation by Down To Earth Geotechnical & Environmental (no date), and the Detailed Site Investigation by Compaction and Soil Testing Services dated 26 September 2023, I accept that the site can be made suitable for the intended, continued industrial use subject to the agreed conditions of consent.
The site is located in the vicinity of overhead electricity infrastructure, and was accordingly referred to Endeavour Energy who raised no objection to the proposed development subject to recommended conditions of consent. These conditions have been incorporated into the agreed conditions of consent.
As the site is over 1 hectare in size and located within a Local Government Area listed in Sch 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (NSW) (SEPP BC), Ch 4 Koala Habitat Protection 2021 applies. No approved Koala Plan of Management applies to the land, and subsequently, pursuant to s 4.9 of the SEPP BC, the parties submit and from the amended application, I accept that the site is not considered to be core koala habitat, and the development is not likely to have any impact on koalas or koala habitat. Consent may therefore be granted pursuant to s 4.9(3).
The site is located within the Georges River Catchment and accordingly, Ch 6 of the SEPP BC applies. Based on the amended application, the Statement of Environmental Effects by Nolan Planning Consultants dated November 2025 (SEE), the conditions of consent and the parties’ submission, I accept that the requirements of Ch 6 relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7) and flooding (s 6.8) are met by the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), and is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10).
The subject site is zoned E4 General Industrial under the Hawkesbury Local Environmental Plan 2012 (HLEP), within which the proposed development for a warehouse and distribution centre is permissible with consent. The objectives of this zone have been considered in the assessment of the proposed development.
The site is not subject to any provisions for minimum lot size, floor space ratio or height of buildings under the HLEP.
Pursuant to HLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, however is not within 500m of any adjacent mapped land that is below 5 metres Australian Height Datum (AHD) and does not propose works that are likely to lower the water table below 1 metre AHD. Accordingly, the provisions of cl 6.1 are met.
Pursuant to HLEP, cl 6.2 lists matters relating to earthworks that must be considered prior to the grant of development consent. From the parties’ submission, the SEE and the VMP which details the translocation of soil, I accept that these matters have been considered and the proposed earthworks are acceptable pursuant to cl 6.2.
Pursuant to HLEP cl 6.4, the site is mapped as containing significant vegetation. This mapping has been ground-truthed in the BDAR, which demonstrates that the mapped area does not contain the highest value vegetation on the site. From the parties’ submission, the BDAR, the VMP and the relevant conditions of consent, I accept that the development has been designed, sited and will be managed to minimise any impact that cannot be reasonably avoided.
From the parties’ submission and the fact that the site includes existing, functioning industrial uses that are fully serviced, I accept that the essential services listed in HLEP cl 6.7 are available, or will be available when required.
Pursuant to s 38(3) of the NSW Reconstruction Authority Act 2022 (NSW), from the parties’ submissions and the information in the amended application, I accept that regard has been given to the State Disaster Mitigation Plan 2024-2026.
For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, and subsequently, 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:
Hawkesbury City Council, as the relevant consent authority, has agreed under section 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) to the Applicant amending Development Application No. DA0140/23 in accordance with the following amended plans and documents:
| Plans | | Plan no. | Revision no. | Plan title | Drawn by | Date of plan | | DA. 000 | F | Overall Subject Site – Cover Sheet | RJP Design | 23/09/2025 | | DA. 001 | F | Overall Site Plan – Ground Floor Plan | RJP Design | 23/09/2025 | | DA. 002 | F | Overall Subject Site – Mezzanine Floor Plan | RJP Design | 23/09/2025 | | DA. 003 | F | Overall Subject Site – Roof Plan | RJP Design | 23/09/2025 | | DA. 004 | F | Overall Subject Site - Elevations | RJP Design | 23/09/2025 | | DA. 005 | F | Overall Subject Site – Sections – Sheet 1 | RJP Design | 23/09/2025 | | DA. 006 | F | Overall Subject Site – Sections – Sheet 2 | RJP Design | 23/09/2025 | | DA. 101 | F | Overall Subject Site – Development Statistics – Ground Floor Plan | RJP Design | 23/09/2025 | | DA. 102 | F | Overall Subject Site – Development Statistics – Mezzanine Floor Plan | RJP Design | 23/09/2025 | | DA. 103 | F | Overall Subject Site – Demolition Plan | RJP Design | 23/09/2025 | | DA. 104 | F | Overall Subject Site – Ground Floor & Truck Manoeuvring Plan | RJP Design | 23/09/2025 | | DA. 105 | F | Overall Subject Site – Floor Space Ratio Analysis | RJP Design | 23/09/2025 | | DA. 106 | A | Overall Subject Site – Development Statistics – Ground Floor Plan – Landscape Area | RJP Design | 23/09/2025 | | Sht-101 | D | Master Landscape Plan | Jamie King Landscape Architect | 11/11/2025 | | Sht-102 | D | Detail Plan | Jamie King Landscape Architect | 11/11/2025 | | Sht-103 | D | Detail Plan – VMP Area | Jamie King Landscape Architect | 11/11/2025 | | Sht-104 | D | Details | Jamie King Landscape Architect | 11/11/2025 | | Documents | | Document title | Prepared by | Date | | Streamlined Biodiversity Development Assessment Report (Job No. 2452, Version 6) | Anderson Environmental | 01/04/2026 | | Vegetation Management Plan and Threatened Species Management Plan (Job No. 2452, Version 7) | Anderson Environmental | 01/04/2026 | | Arboricultural Impact Appraisal and Method Statement | Ezigrow Arboricultural Consulting | 11/11/2025 | | Statement of Environmental Effects | Nolan Planning Consultants | November 2025 |
The Court orders:
The appeal is upheld.
Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of the amendments to the development application, in the agreed amount of $10,000.00, within 21 days of the date these orders are made.
Development Application No. DA0140/23, as amended, for alterations to an existing warehouse building, demolition of remaining existing structures, tree removal, construction of 3 warehouse buildings resulting in a total of 11 units across the site and associated carparking and strata subdivision on the land at 62 Drummond Street, South Windsor is determined by a grant of consent subject to conditions contained in Annexure A.
Annexure A (479 KB, pdf)
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Micallef
Hawkesbury City Council [2026] NSWLEC 1206