777 Investments Pty Ltd v Newcastle City Council [2026] NSWLEC 1258

Catchwords: DEVELOPMENT APPLICATION – alterations and additions to a service station – conciliation conference – agreement between the parties – orders Land and Environment Court New South Wales Medium Neutral Citation: 777 Investments Pty Ltd v Newcastle City Council [2026] NSWLEC 1258 Hearing dates: Conciliation conference on 15 April 2026 Date of orders: 08 May 2026 Decision date: 08 May 2026 Jurisdiction: Class 1 Before: O’Neill C Decision: The orders of the Court are: (1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed, payable within 28 days of these orders. (2) The appeal is upheld. (3) Development Application No 2024/00618 for alterations and additions to an existing operating service station including ancillary convenience store, signage, associated site works and landscaping, at 36 Lorna Street, Waratah, is determined by the grant of consent, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to a service station – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 4.65, 8.7, 8.15 Land and Environment Court Act 1979 (NSW), s 34 Environmental Planning and Assessment Regulation 2021 (NSW), ss 38, 67 Newcastle Local Environmental Plan 2012 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Industry and Employment) 2021, Ch 3, ss 3.1, 3.4, 3.6, Sch 5 Category: Principal judgment Parties: 777 Investments Pty Ltd (Applicant) Newcastle City Council (Respondent) Representation: Counsel: M Staunton (Applicant) T To SC (Respondent) Solicitors: Mills Oakley (Applicant) Finn Roache Lawyers (Respondent) File Number(s): 2025/221275 Publication restriction: No JUDGMENT COMMISSIONER : This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application No 2024/00618 for alterations and additions to an existing operating service station including ancillary convenience store, signage and associated site works and landscaping (the proposal), at 36 Lorna Street, Waratah (Lot 1 in DP 162732) ( the site), by Newcastle City Council (the Council). 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 15 April 2026. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to 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. 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 preconditions to the exercise of power to grant development consent for the proposal. Amended application The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) . The plans and documents comprising the amended application are as follows: DOCUMENT DATE Amended Architectural Plans (Up to Rev M) prepared by MCHP Architects • 20-031-DA200 – Cover Sheet (Rev L) • 20-031-DA201 – Existing Demolition Plan (Rev H) – 14 April 2026 • 20-031-DA202 – Proposed Site Analysis / Site Plan (Rev L) – 14 April 2026 • 20-031-DA203 – Proposed Floor Plan (Rev M) 14 April 2026 • 20-031-DA204 – Existing Elevations (Rev E) 26 March 2026 • 20-031-DA205 – Proposed Elevations & Section (Rev L) 14 April 2026 • 20-031-DA206 – Shadow Diagrams – Sheet 1 (Rev D) 13 April 2026 • 20-031-DA207 – Shadow Diagrams – Sheet 2 (Rev D) 13 April 2026 • 20-031-DA208 – Shadow Diagrams – Sheet 3 (Rev D) 13 April 2026 • 20-031-DA209 – Boundary Fence Detail Elevations (Rev D) 13 April 2026 • 20-031-DA221 – Shadow Elevations – 9AM (Rev C) – 13 April 2026 • 20-031-DA222 – Shadow Elevations – 10AM (Rev C) – 13 April 2026 • 20-031-DA223 – Shadow Elevations – 11AM (Rev C) – 13 April 2026 • 20-031-DA224 – Shadow Elevations – 12Noon (Rev C) – 13 April 2026 • 20-031-DA225 – Shadow Elevations – 1PM (Rev C) – 13 April 2026 • 20-031-DA226 – Shadow Elevations – 2PM (Rev C) – 13 April 2026 • 20-031-DA227 – Shadow Elevations – 3PM (Rev C) – 13 April 2026 • 20-031-DA230 – Proposed Site Ground Floor Plan (Rev E) – 14 April 2026 • 20-031-DA231 – Security Plan (Rev F) – 14 April 2026 • 20-031-DA241 – Proposed Shopfront Elevation (Rev C) – 14 April 2026 Various dates Amended Statement of Environmental Effects (Rev 7) prepared by SLR Consulting 31 March 2026 Amended Plan of Management (Rev 7) prepared by SLR Consulting 14 April 2026 Traffic Engineering Advice (Rev 1) prepared by SLR Consulting 31 March 2026 Letter regarding existing use rights (Rev 2) prepared by SLR Consulting 27 March 2026 Report on Illumination and Light Spill (Rev 1) prepared by K R Offord and Associates Pty Ltd 30 March 2026 Amended Crime Risk Assessment Report prepared by Forward Thinking April 2026 Landscape Plans (Rev D) prepared by Anderson Environment & Planning including: • Sheet L01: Report, Site Context & Plant Schedule • Sheet L02: Landscape Concept Plan • Sheet L03: Detail Drawings • Sheet L04: Specification • Sheet L05: Specification & Schedules • Sheet L06: Maintenance Specification 9 April 2026 Amended Civil Engineering Plans (Rev D), prepared by DRB Consulting Engineers • CIV-001 – Cover Page, Drawing List and Locality Plan • CIV-011 – Civil Works Plan • CIV-021 – Civil Details 31 March 2026 Unobstructed Glazing Zone Diagram 2 April 2026 Survey Plan (Rev A) prepared by Delfs Lascelles 23 March 2026 The Council is satisfied that the contentions raised in the Amended Statement of Facts and Contentions filed 16 March 2026 are resolved by the amended application and the conditions of consent at Annexure A. Pre-conditions to the grant of consent The proposal includes a change to the location of the fill point of the existing tanks on the site. The Council is satisfied that the change to the location of the fill point will achieve the required separation distances to external users of the site. The Council has considered whether the land is contaminated and is satisfied that the land is suitable for the use in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 , based on the Environmental Site Assessment prepared by Aurora Environmental Consulting. Chapter 3 of State Environmental Planning Policy (Industry and Employment) 2021 at s 3.4(1) applies to the proposed signage. The Council is satisfied of the matters under s 3.6 : that the signage is consistent with the objectives of Ch 3 as set out in s 3.1(1)(a), and that the signage satisfies the assessment criteria specified in Sch 5. The site is zoned R2 Low Density Residential pursuant to Newcastle Local Environmental Plan 2012 . Service stations are a prohibited use in the R2 zone. The Council is satisfied that the operating service station is an existing use within the meaning of s 4.65 of the EPA Act. Condition 1A of the conditions of consent at Annexure A requires the applicant to surrender its existing use rights pursuant to s 67 of the EPA Regulation prior to the issue of the Occupation Certificate. Conclusion I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 15 April 2026 and I am satisfied , on the basis of the evidence before me , that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. Orders The orders of the Court are: The Applicant is to pay the Respondent ’ s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed, payable within 28 days of these orders. The appeal is upheld. Development Application No 2024/00618 for alterations and additions to an existing operating service station including ancillary convenience store, signage , associated site works and landscaping, at 36 Lorna Street, Waratah, is determined by the grant of consent, subject to the conditions of consent at Annexure A. ____________ Susan O’Neill Commissioner of the Court ********** Annexure A (506 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 May 2026