Australia, June 2 -- New South Wales Land and Environment Court issued text of the following judgement on May 2:

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by Parklands Kariong Development Pty Ltd against the refusal of development application DA/1760/2022. The development application seeks consent for the subdivision of the site into four lots, earthworks, tree removal, construction of a new entry and internal roads, construction and use of three fast food outlets (being McDonalds, KFC, GYG), landscaping and civil works. The development is proposed at 5 The Avenue, Kariong (Lot 101 in DP 1256044).

2. The amended development application proposes the following:

1)The torrens title subdivision of the site into four lots;

2) Cut and fill earthworks;

3) Tree removal;

4) Construction of a new left-in (only) entry road (right of carriageway) and deceleration lane to the Central Coast Highway and partial road widening;

5) A second internal road (right of carriageway) for the three proposed food and drink premises (McDonald's, KFC and GYG) on proposed Lots 2, 3 and 4;

6) Stormwater infrastructure and public utility services;

7) Landscaping;

8) Signage (excluding pylon signs);

9) Construction and use of a McDonald's food and drink premises on proposed Lot 2 with a total gross floor area (GFA) of 380m2, 38 car spaces and two (2) drive-thru bays;

10) Construction of a KFC food and drink premises on proposed Lot 3 with a GFA of 272m2, 32 car spaces and two (2) drive-thru bays; and

11) Construction of a GYG food and drink premises on proposed Lot 4 with a GFA of 277m2, 28 car spaces and two (2) drive-thru bays,

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 4 November 2024. The conciliation was ultimately terminated and the matter listed for hearing. Notwithstanding the termination of the conciliation conference, the parties continued to negotiate in relation to the form of the development and appropriate conditions of consent. These negotiations were productive. The Applicant further amended the development application in December 2024, seeking to address the Respondent's concerns.

4. The parties continued discussions and reached an agreement based on amended plans and documents. The parties' agreement is for the grant of consent to the application, as amended, subject to the conditions in Annexure A. The parties sought a further conciliation conference which was arranged for 7 April 2025 and the hearing was adjourned. I presided over the further conciliation conference.

5. As the presiding Commissioner, I am satisfied that the decision is one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1) The development application was lodged on 23 June 2022, Environmental Planning and Assessment Regulation 2021 (EPA Reg) applies. As required by s 23(1) of the EPA Reg the owners of the site consented to the lodgement of the development application.

2) The development application was notified by the Respondent from 8 July to 5 August 2022. The Respondent received 88 submissions, 86 submissions in objection. The amended development application was notified from 17 January to 17 February 2025. At the commencement of the matter on site, the Court was addressed by a number of concerned residents. I am satisfied that the submissions have been considered in the determination of the development application by either amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19689a68197e7901e3f76391)

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