In this article, we consider some key judgments of the NSW Land and Environment Court and the NSW Court of Appeal in relation to planning and environment law in 2025. Whilst there have been no groundbreaking doctrinal shifts in the case law, the year has nevertheless involved the assent of the Planning System Reforms Bill 2025, the most significant set of reforms to the Environmental Planning and Assessment Act 1979 (EP&A Act) in decades.  

As a result, 2026 is poised to be a significant year as the reforms will introduce the following: 

• Different objects to the EP&A Act highlighting the important nexus between planning law and land economics. In this regard, the objects will include housing delivery, but also climate resilience and proportionality for the first time. 

• The Development Coordination Authority, a single agency for most concurrences on major projects.  

• The Housing Delivery Authority will be enshrined in legislation, whose lesser-known functions include reporting to the Minister on housing supply and availability. 

• Expanding Complying Development pathways and the introduction of a Targeted Assessment Development approval pathway in a new Division 4.3A. 

• Introducing a state-wide Community Participation Plan and the prospect of more standardised conditions of development consents and involvement of applicants in the settling of those conditions. 

As was predicted in our 2024 article, these reforms have arisen in an attempt to improve supply by removing delay, inefficiency, uncertainty and costs associated with getting new developments approved and built. Whether these reforms will deliver on these aims will be the subject of much scrutiny and debate in 2026. Having reviewed the Bill, we can see new lines of legal controversy arising.   

Denman Aberdeen Muswellbrook Scone Healthy Environment Group Inc v MACH Energy Australia Pty Ltd [2025] NSWCA 163 (Note that MACH Energy Australia Pty Ltd has been granted special leave to the High Court, see [2025] HCADisp 297)) 

In this case, the NSW Court of Appeal declared a development consent invalid for the failure to consider a mandatory consideration under section 4.15 of the Environmental Planning and Assessment Act 1979 (NSW). 

Specifically, the question was whether the Independent Planning Commission failed to consider imposing conditions to minimise Scope 3 greenhouse gas emissions arising from the development and the likely impact of those emissions on the locality. 

In relation to ground 1(a), the Court of Appeal held that the IPC did consider whether to impose conditions on Scope 3 emissions. 

However, in relation to ground 1(b), the Court of Appeal held that the IPC was required to take into account the “likely impacts of the project, including environmental impacts on both the natural and built environments and social and economic impacts in the locality”. The IPC's reasons did not indicate that it had considered the impacts on the locality and the Court of Appeal found that the IPC had not done so. It was not enough for the IPC to have made general comments on the effects of global warming globally.  

This judgment is a reminder of the need to carefully ensure all mandatory considerations are addressed and that a failure to do so will risk the validity of the development consent.  

Although in many ways the judgment is unremarkable, as it is trite to say that environmental assessment must consider impact on locality (which most applications do and which most consent authorities focus on), what will be interesting is how the reforms impact this obligation. One of the amendments to section 4.15(1) of the EP&A Act will mean that, in future, only significant local impacts need to be considered. For some projects, it may be open to argue that their local impacts are insignificant. 

Manboom Pty Ltd atf the Outdoor Signage Unit Trust v Jemena Gas Networks (NSW) Ltd (No 2) [2025] NSWSC 1330  

In this judgment, the NSW Supreme Court was determining four separate questions, in relation to a claim in trespass brought by Manboom against Jemena.  

AGL had installed gas main assets underground in rail corridor land which later became private property. Those gas main assets were now the property of Jemena. 

Manboom brought proceedings contending that it was a trespass for the gas main assets to be in that land. 

The Supreme Court answered "Yes" to all four of the separate questions, meaning that each of the following 4 factors provided Jemena with a complete defence against the trespass claims: 

• the installation of the gas main assets at the land occurred under the Australian Gas Light Company Act 1837 (NSW) and the Australian Gas Light Company Act 1858 (NSW);  

• the continued presence, maintenance and use of the gas main assets occurred under that legislation as well as other more recent legislation; 

• the plaintiffs’ ownership and possession of the land is subject to and qualified by Jemena's ownership and possession of the gas main assets and Jemena's statutory powers to maintain and use those assets; and  

• the Gas Supply Act 1996 (NSW) excluded the plaintiffs' trespass claims. 

This is important for private property owners to bear in mind when dealing with pipelines which may exist on what is now private land and impact redevelopment of such land, even though the pipelines may not be the subject of instruments registered on title due to broader statutory rights that utilities owners have.  

Modification applications 

Ross v Randwick City Council [2025] NSWLEC 89 

In Ross v Randwick City Council [2025] NSWLEC 89, the applicant, Ross, commenced judicial review proceedings challenging the Council’s decision to approve a modification application that reduced the first-floor rear setback and provided deep-soil permeable surfaces over only 32.38% of the site. The proposed modification did not comply with the rear setbacks or deep soil requirements of the Randwick Development Control Plan (DCP). 

The Court upheld the appeal and declared the modification application invalid on the basis that a Council DCP is a fundamental element of the decision-making process. In this case, there was no evidence that the Council had engaged with the section 2.5 (deep soil) or 3.3.3 (rear setbacks) of the Randwick DCP 2023 at all. The Council had also incorrectly referred to the repealed Randwick DCP in their assessment. 

The Court found that the Council had failed to take into consideration all relevant matters under section 4.15(3) of the Environmental Planning & Assessment Act 1979 and declared the modification consent invalid.  

This judgment serves as an important reminder to ensure that DCPs are not overlooked during the development assessment process. 

Alvares v The Hills Shire Council [2025] NSWLEC 1726  

This case caught our attention because, while it involved a relatively mundane modification application to replace two boundary fences, it unexpectedly raised complex biodiversity issues of jurisdictional character. In the original application, the Biodiversity Development Assessment Report (BDAR) found that there were unacceptable impacts on the two communities of native vegetation within the site. This led to the clearing of 0.17 hectares of the endangered ecological community, a loss that could not be reversed.  

Under the Biodiversity Conservation Act 2016, applicants seeking to modify a development consent may rely on an exception that removes the need for a further BDAR, provided that the consent authority is satisfied that the modification will not increase the impact on biodiversity values. The applicant in this case intended to rely on this exception. It is relevant to note that biodiversity issues are generally "jurisdictional matters" in NSW planning law, meaning that if a particular requirement, such as a BDAR is not provided, it may be a reason to deny an application, even if the application itself has merit.  

The Court in this case found the modification would not satisfy the above requirements, meaning it would not increase the impact on biodiversity values. It was observed that the proposed modification’s engineering design did not alleviate or mitigate the biodiversity impacts. This decision underscores that jurisdictional requirements such as BDARs remain critical even for modification applications. Applicants should be mindful of jurisdictional requirements and need to consider preparing a BDAR if the issue is contestable. This is particularly important for any matter that proceeds to Court given the Court’s careful focus on ensuring any decision it makes is within power, which has led to the need over the last 5 years for fairly detailed “jurisdictional statements” where the parties have reached agreement in the proceedings and seek to resolve the matter through an agreement under section 34 of the Land and Environment Court Act 1979.

Joinder applications 

Optus Mobile Pty Ltd v Central Coast Council [2025] NSWLEC 74  

In this case, Optus Mobile proposed the construction of a telecommunications facility and had appealed the refusal of the development application. The owner of land surrounding the site was successfully joined to the proceedings.  

In considering the joinder application, Beasley J neatly summarised the joinder test: 

The Court must form the opinion that the joinder applicant is able to raise an issue that should be considered on the appeal but would not likely be sufficiently addressed if the joinder applicant was not joined as a party. Joinder therefore can be granted not just in circumstances where the joinder applicant wishes to raise a relevant issue not currently raised on the appeal, but where they raise an issue that is already the subject of the appeal, but is one that would “not be likely to be sufficiently addressed” were they not joined. Alternatively, under s 8.15(2)(b), the Court can grant joinder if it forms the opinion that it is either in the interests of justice or in the public interest that the joinder applicant be joined as a party to the appeal. 

Crucial to these proceedings and without finding the Council would act improperly or without integrity, was the fact that the Council and Optus had entered into a commercial lease agreement, leading the Court to conclude at [46]: 

“It is this combination of factors – the existence of the lease agreement between the Council and Optus over the Site; and the complex and numerous issues said to warrant refusal of consent – that have caused me to form the opinion that it is in the interests of justice to grant leave to the Joinder Applicant (who is likely to be the most affected person by a grant of consent) to be joined to the Appeal proceedings”. 

This case was unique, given there was a commercial lease agreement in place between Council and Optus, but also because an earlier development application lodged by Optus was held to be invalid by Pain J: see Denny v Optus Mobile Pty Ltd [2023] NSWLEC 27.  

The Court made clear that the combination of the issues raised by the applicant and commercial agreement contributed to the Court finding that in the interests of justice and the public interest for the applicant ought to be joined. 

Although we don’t review the decision in detail here, Preston CJ’s decision in The Owners Corporation – Strata Plan 105507 v Newcastle City Council [2025] NSWLEC 111 also demonstrates that the prospects for joinder will be assisted if the joinder applicant can raise an issue that is unique and which will not be sufficiently addressed in the appeal.  

Unauthorised works cases 

Cases involving unauthorised works continue to arise due to the various difficulties people face when unauthorised works have occurred. The system is built on the principle of prospectivity, which can make regularisation difficult and where breaches have occurred, authorities have a range of enforcement options available. One case in the past year warrants comment in this context. Although the orders were flawed, the Court was nonetheless bound to sentence the defendant because they had already entered a plea of guilty in earlier Local Court proceedings. 

Kingfisher Properties Pty Limited v Northern Beaches Council [2025] NSWLEC 39 

The Chief Judge of the Land and Environment Court set aside a $100,000 fine imposed by the Local Court for the failure to comply with a development control order regarding a carport and replaced it with a much smaller fine of $9,000, due to it being at the “very low end of the range of objective seriousness for the offence”.  

What is most important about the case, however, is that it provides a number of useful reminders to both those issuing orders and those receiving orders, based on the long history of the matter in and out of Court stemming back to August 2020.  

His Honour made a number of remarks about the validity of earlier orders and an earlier Court decision made under section 34 of the Land and Environment Court Act 1979.  

We make three observations from this history: 

1. For recipients of orders, it is important to make sure development control orders are lawfully imposed before concessions or pleas of guilty (as occurred in this case) are made in litigation. For example, as the name suggests, a demolish works order cannot require the carrying out of building work. Further, there must be a planning approval in place before a compliance order requiring compliance with a planning approval can be issued. Those issuing and receiving orders should therefore go back to first principles and check that what is being ordered falls within what the authority is empowered to command through the issue of an order. 

2. A careful decision needs to be made as to whether to challenge the merits of a development control order in class 1 or the validity of a development control order in class 4 of the Land and Environment Court, especially as non-compliance with an order can result in a criminal offence. 

3. For appeals against sentence arising from the Local Court, the Land and Environment Court must still impose a sentence even if the Court identifies the original offence (to which a plea of guilty was made) is flawed. In this case, the order was considered in large parts outside of power.  

Concept applications  

Concept development applications under section 4.22 of the EP&A Act continue to be a minefield as consent authorities demand more details for the purpose of regulation, while applicants seek flexibility by seeking consent to a proposal at a conceptual level.   

In Rise South West Rocks Pty Ltd v Kempsey Shire Council [2025] NSWLEC 1663, like many concept applications, the Applicant sought consent for a two-stage development that would incorporate residential, commercial and retain units between three to five storeys with associated landscaping and infrastructure.  

The concept DA before the Court had a series of issues including the proximity to coastal wetlands, which remained one of the Council's primary contentions. The coastal wetlands issue creates a jurisdictional threshold by virtue of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 and the potential impacts the development could have. 

The Council submitted that the Court could not be satisfied that the proposal would not have a significant impact on the coastal wetland, or the groundwater that flows to the coastal wetlands, with Council's experts remaining unconvinced that engineering design for the stormwater and groundwater infrastructure was technically feasible.  

Various concerns were raised as to the extent of the impact and mitigation measures about conditions that could be drafted were discussed amongst the experts. However, neither the Council’s experts nor the Court were satisfied as to the technical feasibility of the proposed conceptual stormwater system based on the Council’s modelling. Notably, the Applicant did not provide any evidence demonstrating that the adverse impacts could be avoided, minimised or managed. 

Due to the site’s proximity to coastal wetlands, the concept proposal was ultimately refused because it failed to satisfy the jurisdictional threshold imposed by the biodiversity requirements.  

This case serves as a reminder that, while section 4.22 of the EP&A Act permits conceptual development applications, these applications are still subject to strict regulatory obligations. Such requirements can significantly reduce the flexibility that concept proposals are intended to offer. 

170 Willmington Road Pty Ltd v Liverpool City Council [2025] NSWLEC 1600  

Whilst the Government led construction of the Western Sydney Airport and the M12 Motorway presses on for its targeted 2026 completion date, private sector development of the surrounding Aerotropolis has had one early roadblock. In 170 Willmington Road Pty Ltd v Liverpool City Council [2025] NSWLEC 1600, the Land and Environment Court refused a concept DA for a logistics hub on greenfield land within the ‘Agribusiness’ precinct of the Aerotropolis on Aboriginal cultural heritage grounds.   

The concept DA proposed the development of the 12.36-hectare site in four stages. Stage 1 (being demolition, tree removal, subdivision, bulk earthworks and internal roads) was proposed concurrently with the concept DA.  

The concept DA was refused for five key reasons – see [72]. Notably, the Commissioner reached the determination that there was insufficient information available to determine the impacts of the development on the Aboriginal cultural heritage of the site. The Commissioner also found that the concept DA had not been formulated in accordance with the Recognise Country Guidelines, which were a mandatory consideration under the State Environmental Planning Policy (Precincts—Western Parkland City) 2021. 

The case again highlights some of the difficulties with concept DAs in NSW. The reasoning for the refusal creates an interesting tension between private and public developments in the precinct, given the intensity of the nearby Western Sydney Airport and the M12 Motorway under construction by Transport for NSW, which involved significant earthmoving and cuts through the rolling terrain of Luddenham and Badgerys Creek. 

Turner Contracting Pty Ltd v Tweed Shire Council [2025] NSWLEC 1403  

Further to our article last year, provisions requiring a state of satisfaction to be reached before development consent can be granted remain a perennial issue. 

In this case, Commissioner Dickson was not satisfied that there were adequate arrangements in place to make sewer and water services essential for the development and as a result clause 7.10 of the Tweed Local Environmental Plan 2014 was not satisfied. 

The Commissioner stated at [163]: 

“Further, in applying the reasoning in Eskander I note that it is not within the Applicant’s capacity to ensure any augmentation of the HPWWTP to achieve its design capacity, or any further upgrades. This adds weight to the finding that adequate arrangements have not been made to make services for the disposal and management of sewage available to the development when required”. 

The case is instructive, as where these clauses exist in local environmental plans, applicants need to ensure that there are adequate arrangements in place to accommodate a development at the date of the decision. The applicant in this case attempted to argue at [155] that a condition could be imposed to address any further sewerage storage issues. The Court found in this case that it had no power to grant the development consent where no adequate arrangements had been made for the disposal and management of sewage arising from the proposed development. 

Kenmore Property Development Pty Ltd v Secretary, Department of Climate Change, Energy, the Environment and Water [2025] NSWLEC 131  

This Class 1 appeal concerned whether an applicant for a modification application had a right of appeal under section 70 of the Heritage Act 1977 (NSW) following a letter from the Heritage Council which stated it would not provide general terms of approval. The Chief Judge of the Land and Environment Court held that the Court had no jurisdiction to hear and determine the appeal brought under this section. However, the applicant could have appealed the Council’s refusal of the modification, which would have enabled the Court to determine the matter even if any resulting development consent were inconsistent with the Heritage Council’s general terms of approval. 

This case serves as a reminder to: 

• carefully consider the power relied on to appeal;  

• remain vigilant about when appeal rights lapse; and  

• properly and promptly address events that create appeal rights. 

As stated at the start of this article, 2026 will be marked by the challenge of implementing the amended Act. The amendments will likely have staggered commencements as parts of the reforms are “proclaimed”. Additionally, a number of the reforms rely on new environmental planning instruments being introduced. Although we do not expect the changes to dramatically simplify the planning system’s maze-like qualities (as depicted in the Department’s diagram of the planning system published in the Daily Telegraph’s earlier this year, which apparently provided some of the impetus for the reforms), we do anticipate the reforms will streamline some assessment requirements and introduce greater agility into the approval pathways within the Act. 

However, given the inherent complexity created through both the mix and proliferation of “hard” and “soft law” in the NSW planning system as well as the contestable or “evaluative” elements enabled within the administrative decision making under the EP&A Act, we see these as risks to the aim of efficiency, which the reforms  ultimately strive to achieve. 

If you would like to discuss how these reforms may affect your projects or require guidance navigating the changes, please contact the PGIE team.