In the Zone - December 2025

Hello from Sparke Helmore Lawyers

Welcome to our latest edition of ‘In the Zone’.

It has been a momentous quarter for legislative change, with amendments to the NSW Environmental Planning and Assessment Act 1979 (EPA Act) and the Cth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) being passed through Parliament, as well as a raft of proposed amendments, including to the NSW Local Government Act 1993 (LG Act) being introduced.

This edition also covers recent key decisions in the NSW Land and Environment Court on applications for joinder, requirements to consider Aboriginal cultural heritage, what constitutes minor boundary adjustments and assessment of biodiversity impacts.

As this is the last edition for the calendar year, we wish you all the best for a safe and happy festive season. Our offices are closed from 22 December 2025, and we will return on 5 January 2026.

Land and Environment Court

Applications for joinder

Recently, the Court has decided several applications for joinder to the proceedings made by third parties.

Under s 8.15(2) of the EPA Act, the Court may order that a person be joined as a party to an appeal if the Court is of the opinion that:

1. the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person was not joined as a party (s 8.15(2)(a)), or
2. it is in the interests of justice, or the public interest, that the person be joined as a party (s 8.15(2)(b)).

Further, under Rule 6.24 of the Uniform Civil Procedure Rules 2005 (UCPR), the Court may order that a person be joined as a party if it considers that the person 'ought to have been joined as a party or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings'.

We consider some of the recent decisions on joinder below.

The Owners Corporation - Strata Plan 105507 v Newcastle City Council [2025] NSWLEC 111, Preston CJ (3 October 2025)

Read the full decision here.

Case summary

This was a successful application made by Merewether Historical Society (MHS), represented by Sparke Helmore, to join Class 1 proceedings between the Owners Corporation SP105507 (Owners Corporation) and the Respondent Council.

The Owners Corporation sought to modify a development consent granted in 2018 (Consent) for a mixed-use development at 37 Llewellyn Street, which included a building constructed across an existing right of carriageway (ROC).  Prior to the construction of the building, the ROC had been used by members of the public as a means of access between the retail shops located on Llewellyn Street and community land (including a children’s playground and bowling club) along Caldwell Street.  Access to the ROC was now blocked by the development because of a garage roller door fronting Llewellyn Street and a sliding door at the rear.  MHS had commenced Supreme Court proceedings against the Owners Corporation with respect to its rights to use the ROC, seeking orders that the Owners Corporation remove the obstructions from the ROC. The effect of the proposed modification to the Consent was essentially to have the ROC extinguished (by way of a modified condition of development consent). 

While the modification application had been refused by Newcastle City Council, MHS contended that it should be joined to the Class 1 proceedings because the Council was not advancing certain issues in the proceedings, including whether the modification sought would be for substantially the same development under s 4.55(1A)(b) of the EPA Act.  MHS also argued that if the Class 1 appeal was upheld, its Supreme Court Proceedings would be rendered futile because the ROC it sought to enforce in those proceedings would be effectively extinguished by the proposed modification.  Joinder was sought by MHS under both ss 8.15(2) of the EPA Act, as well as under Rule 6.24 of the UCPR.

Preston CJ accepted that MHS should be joined to the Class 1 proceedings firstly because joinder was necessary to the determination of all matters in dispute.  His Honour observed at [21]:

If this Court were to uphold the appeal and approve the modification sought by the Owners Corporation to extinguish the existing easement and substitute a different easement, the Society’s contingent right under the existing easement and interest in the Supreme Court litigation would be rendered futile. These adverse effects on the Society’s right and interest make joinder of the Society as a party to the Owner Corporation’s appeal not only necessary under UCPR r 6.24, but also in the interests of justice under s 8.15(2)(b)(i) of the EPA Act: see Pro-Vision Developments Pty Ltd v Ku-Ring-Gai Municipal Council (2003) 131 LGERA 108; [2003] NSWLEC 226 at [23]-[25].

Preston CJ also found that the Council had not raised the s 4.55(1A)(b) issue (at [23]), which was a pre-condition to the exercise of the power to modify the Consent, and that it would not likely be sufficiently addressed if MHS was not joined to the proceedings.

Having decided that MHS should be joined as a party to raise the issue concerning the pre-condition in s 4.55(1A)(b) of the EPA Act, His Honour held that it was unnecessary to decide whether joinder of MHS as a party was also appropriate under s 8.15(2)(a) or (b)(ii) of the EPA Act.   Preston CJ noted (at [25]) that 'once joined as a party, the Society is free to raise whatever issues it considers relevant and appropriate… .'

Key takeaway

If an applicant for joinder is a necessary party, by reason of having a  legal right or interest that may be affected by the outcome of the proceedings or because their joinder is necessary to the determination of all matters in dispute in the proceedings, it is unnecessary to demonstrate that the applicant should also be joined under either of the grounds in s 8.15(2)(a) (person raising an issue that should be considered that would not be addressed if not joined) or (b) (interests of justice/public interest) of the EPA Act.  Further, once joined to the proceedings as a party, the applicant can raise any issues it considers necessary and appropriate in the proceedings.

Successful application for joinder

Repoly Pty Limited v NSW Independent Planning Commission [2025] NSWLEC 1714, Froh R (30 September 2025)

Read the full decision here.

In this decision, the Registrar considered an application by the Garvan Institute of Medical Research (GIMR) to be joined to the substantive proceedings based on both limbs of the test in s 8.15(2) of the EPA Act.

The substantive proceedings involved a Class 1 appeal against the Independent Planning Commission’s 24 January 2025 decision to refuse the State significant development application by Repoly Pty Ltd (then known as Plasrefine Recycling Pty Ltd) for the Moss Vale Plastics Recycling Facility (SSD 9409987).

GIMR lodged numerous objections to the DA, however during the relevant period lodged a submission, not an objection, meaning it was not able to exercise its right to be heard at the hearing under s 8.12(3) of the EPA Act. As such it sought to be joined to the proceedings.

GIMR owned land immediately adjacent to the proposed facility. Australian BioResources Pty Limited (ABR), a wholly owned subsidiary of GIMR, used that land to house mouse colonies that were critical for research into cancer, mental illness, arthritis, asthma, heart disease, diabetes and obesity. The IPC recognised the public importance of this research in its statement of reasons for the decision.

GIMR submitted the proposed development would have adverse impacts on the mouse colonies from construction and operational noise and vibration and from changes to air quality from fires or other emissions from the recycling facility and that if those impacts materialised it would have catastrophic consequences for scientific research in NSW and Australia, as well as thwarting the Institute’s statutory objective. GIMR submitted that it was necessary for it to be joined because of its specialised knowledge of its operations.

As to the first limb, the Court held that it was unable to grant the application on this basis, since no party had filed any SOFAC in the Proceedings and so the Court was unable to determine whether the issues proposed to be raised by GIMR would be sufficiently addressed without its joinder.

On the second limb, the Court held at [20]:

My view is that the proposed impacts raised by the Garvan Institute on its ABR facility, the statutory mandate under which it was established and operates, and the reasons given by the IPC in its Statement of Reasons clearly satisfy the test for public interest.

Notwithstanding the fact that two other applications for joinder had already been granted in the proceedings, the Court considered it was appropriate to join GIMR to the proceedings given the assistance it could provide to the Court and the likely strength of the issues it proposed to raise.

Key takeaway

If relying on the first limb of the test, parties must ensure that a SOFAC has been filed. Notwithstanding, joinder may still be available if it can be established that it is in the interests of justice or the public interest. 

Unsuccessful application for joinder

Olsson v Northern Beaches Council [2025] NSWLEC 1647, Froh R (5 September 2025)

Read the full decision here.

The substantive proceedings involved an appeal against the Council’s refusal of the Applicant’s development application for alterations and additions to an existing house in North Curl Curl (Site). Mr Bray, the applicant for joinder, was the owner of the property adjacent to the northern boundary of the Site. Mr Bray’s motion to join the proceedings was supported by a Proposed SOFAC which set out 11 additional contentions relating to view loss and building height, non-compliance with the Warringah Local Environmental Plan 2011 and Warringah Development Control Plan and deficiencies in the assessment of coastal management matters under ss 2.10 and 2.11 of SEPP Resilience and Hazards 2021 that he proposed to raise if joined to the proceedings. Mr Bray conceded that some contentions had been raised by Council in its SOFAC but that the Proposed SOFAC provided additional particulars that would not be sufficiently addressed without his joinder.

The Registrar held that there was no basis to order Mr Bray be joined to the proceedings as additional particulars for various contentions were not grounds to grant an application for joinder or were not required for issues to be sufficiently addressed by the Court.

The Registrar also held that it was not in the interests of justice to join Mr Bray to the proceedings, in circumstances where he had already been ‘afforded a number of meaningful opportunities to put his concerns about the proposed development to the Council and will also be afforded a further opportunity to address the Commissioner about those concerns at the on-site view at the commencement of the conciliation and hearing of these proceedings’ (at [20]).

Key takeaway

Raising an objection to a proposed development will not, on its own, satisfy the test for joinder, particularly where the objector has had the opportunity to raise concerns with the consent authority and will continue have such opportunities throughout the proceedings.

Failure to consider Aboriginal cultural heritage under the Western Sydney Aerotropolis Precinct Plan

170 Willmington Road Pty Ltd v Liverpool City Council [2025] NSWLEC 1600, Dickson C (22 August 2025)

Read the full decision here.

Case summary

The Land and Environment Court dismissed two development appeals for the subdivision of a site in Luddenham for use as a logistics hub, finding that the applications had failed to appropriately assess Aboriginal cultural significance and heritage, and were designed without proper consideration of Country, as required by the Western Sydney Aerotropolis Plan.

Each development application was accompanied by a Due Diligence Aboriginal Archaeological Assessment, a draft Aboriginal Cultural Heritage Assessment Report, and a draft Recognise Country Response Template. The Court found that these documents contained insufficient and incomplete information to determine the likely impacts of the development on the Aboriginal cultural heritage of the site. The Applicant’s failure to complete and submit finalised reports considering the tangible and intangible Aboriginal cultural heritage of the site ultimately precluded a proper assessment of those values.

Furthermore, the Court found that any insufficiencies in the investigation, research, analysis, and consideration of Country and Aboriginal cultural values is a matter to be addressed prior to determination and cannot be cured by subsequent conditions of consent.

As a result of the failure to adequately consider Country, the Court could not be satisfied that the DAs were consistent with the relevant provisions of the Recognise Country Guidelines, nor the Western Sydney Aerotropolis Precinct Plan (mandatory considerations under ss 4.28B and 4.39 of the State Environmental Planning Policy (Precincts – Western Parkland City) 2021) and therefore the development consent must be refused.

Key takeaway

This decision reinforces the need to thoroughly consider Country prior to the grant of development consent. Importantly, assessments of Aboriginal cultural heritage must be evidence-based and finalised to demonstrate compliance with relevant controls.

Clause 4.1E supports minor boundary adjustments, not the extinguishing and redesign of lots through re-subdivision

Vollmer v Port Stephens Council [2025] NSWLEC 120 by Preston CJ (27 October 2025)

Read the full decision here.

The Vollmers contended that, on a proper construction of the phrase 'boundary adjustment' in cl 4.1E(3) of Port Stephens Local Environmental Plan 2013 (PSLEP), the proposed subdivision met the description of being a subdivision of land by way of a boundary adjustment between adjoining lots. Although the mechanism for the subdivision is the consolidation of two existing lots and their simultaneous redivision into two new lots, the Vollmers asserted that the relocation of a smaller lot, so that it was not isolated and land-locked within the larger lot, was a boundary adjustment for the purposes of the PSLEP.

The Vollmers submitted that the fact that the four boundaries of the new larger lot will be different to the four boundaries of the existing lot did not prevent the subdivision from being described as a boundary adjustment. The Commissioner at first instance found that the proposed subdivision did not meet the description of a 'boundary adjustment'.

The Vollmers appealed the Commissioner’s decision under s 56A of the Land and Environment Court Act 1979 (LEC Act) and the matter was heard by Preston CJ. His Honour found that the subdivision was not a boundary adjustment and dismissed the appeal, stating:

37 The first stage of the consolidation of two or more existing lots into a single lot, by itself, does not meet this description. The consolidation of two or more existing lots into a single lot does not involve either “the division of land into 2 or more parts” (s 6.2(1) of the EPA Act) or the “redivision, along new boundaries, into 2 or more new lots” (paragraph (b) of the definition of “plan of subdivision” in s 195(1) of the Conveyancing Act). There are no “resulting lots” of a consolidation as opposed to a division or redivision of land. Consolidation of two or more lots into a single lot is the opposite of division or redivision of land into two or more lots. As a result of the consolidation of land, there are no longer any “adjoining lots”, the boundaries of which are capable of being adjusted; the existing adjoining lots, with their boundaries between lots, have been extinguished by the consolidation.

38 The second stage of the redivision of the consolidated lot, along new boundaries, into two or more new lots also does not meet the description in cl 4.1E(3) of PSLEP of a subdivision by way of a boundary adjustment between adjoining lots. Of course, the redivision of the consolidated lot does lead to “resulting lots”, one or more of which may or may not meet the minimum lot size shown on the Lot Size Map in relation to the land. But the issue is that the object of the action of redivision is the consolidated lot, not the former existing lots. After consolidation, there are no “adjoining lots”, the boundaries of which are capable of being adjusted by the redivision, as any existing lots that were adjoining were extinguished by the consolidation of the lots into a single lot.

Assessment of biodiversity impacts no longer exclusive to the Biodiversity Conservation Act 2016

Northern Beaches Council v Vigor Master Pty Ltd [2025] NSWLEC 136 by Preston CJ (27 November 2025)

Read the full decision here.

Background

This case involved an appeal under s 56A of the LEC Act against the Commissioner’s decision in Vigor Master Pty Ltd v Northern Beaches Council [2025] NSWLEC 1520 (see our summary of this decision here) to grant development consent to a seniors living development at Oxford Falls. The proposed development was situated on a bushfire-prone site with a steep slope. Significant clearing of vegetation was proposed to create an Asset Protection Zone around the built form, triggering the Biodiversity Offsets Scheme. The Commissioner in that case found that inconsistencies regarding the assessment of biodiversity values between provisions of the Biodiversity Conservation Act 2016 (BC Act), and the EPA Act and Warringah Local Environmental Plan 2000 (WLEP) 'oust the operation of' those provisions of the EPA Act and WLEP from consideration.

Issues

The case centred on the construction of s 7.5(1) of the BC Act which reads: ‘This Part prevails to the extent of any inconsistency between this Part and the Environmental Planning and Assessment Act 1979 (or any instrument under that Act)’.

The Council’s grounds of appeal questioned the proper approach to determining inconsistency under Part 7 of the BC Act, and whether there was an inconsistency between the BC Act, and the EPA Act and WLEP.

Council argued that s 7.13(2) of the BC Act, which requires consideration of a Biodiversity Development Assessment Report (BDAR)  in determining the likely impact of proposed development on biodiversity values, does not preclude the consideration of other matters. Council noted that the provision expressly allows the consent authority to further consider the likely impact, and s 7.13(6) makes clear that s 7.13(2) does not operate to limit the matters a consent authority may consider. As such, Council argued that the WLEP cl 12, 56 and 58, which provide for the retention of distinctive environmental features on sites and protection of existing flora, are not inconsistent with Part 7 of the BC Act and should have been considered under s 4.15 of the EPA Act.

Decision

Chief Justice Preston accepted Council’s arguments that the Commissioner materially erred in her decision and upheld the appeal. His Honour held that a BDAR must be applied to the assessment of biodiversity values, but that other matters may also be considered by the Court in its assessment. As such, there was no inconsistency between the provisions of the BC Act, EPA Act and WLEP, and relevant provisions of the EPA Act and WLEP should have been considered.

Key takeaway

This case overturns the findings of the earlier decision. The assessment of biodiversity impacts is the domain of the BC Act, but it may be supplemented by provisions under other LEPs, or instruments made under the EPA Act.

NSW Environmental Planning and Assessment Amendment (Planning System Reforms Act) 2025

The NSW Planning Systems reform legislation passed through the NSW Parliament and was assented to on 24 November 2025. We have published a series of articles outlining the amendments, which can be found here . The amendments have not yet commenced.

Cth Environment Protection Reform Act 2025

On 28 November 2025 the Environment Protection Reform Bill 2025 (EPR Bill) passed both Houses of Federal Parliament. The Environment Protection Reform Act 2025 (EPR Act) will implement a significant overhaul of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) as part of a broader package of seven Bills which follow the 2020 Independent Review of the EPBC Act by Graeme Samuel (Samuel Review). Notably, this package of legislation included the establishment of a National Environment Protection Agency (NEPA).

The reforms package comprised:

• the EPR Bill
• the National Environmental Protection Agency Bill 2025 (NEPA Bill)
• the Environment Information Australia Bill 2025, and
• four separate bills concerning the imposition of general, restoration, customs, and excise charges under the EPBC Act.

Details as to the operation of the EPBC Act after the commencement of the EPR Act remain undetermined until the amending legislation commences and new instruments are made under the EPBC Act, including the National Environmental Standards (NES).

Some components of the EPR Act came into effect straight after assent (on 1 and 2 December 2025), however more significant parts of the major reforms will come into effect on a date to be proclaimed, or within twelve (12) months.

Some of the key reforms include:

• Introduction of the NES. Projects referred under the EPBC Act for approval will need to be ‘consistent with’ the NES.
• Introduction of a new ‘streamlined assessment’ pathway for approval of a controlled action under Part 3 of the EPBC Act (as well as repeal of the ‘assessment on referral information’ and ‘public environment report’ assessment pathways).
• Additional flexibility afforded to the Minister to sign bilateral agreements with States and Territories and accrediting their environmental approval processes such that a project approved under a State law does not need assessment under the EPBC Act.
• The introduction of provisions that provide that the Minister must not approve the taking of an action unless they are satisfied that it will not have an unacceptable impact on a protected matter (MNES), or if the action will have a residual significant impact on a protected matter, the approval passes the net gain test.

We will continue to provide further updates about the EPR Act reforms as they are implemented. 

Read more here.

New Class 9 LEC jurisdiction for councillor misconduct and public interest proceedings

The Local Government and Other Legislation Amendment (Councillor Conduct) Bill 2025 aims to implement public interest proceedings in the LEC in relation to councillor misconduct.

This Bill aims to change the forum for councillor conduct proceedings. It will create a new class of proceedings in the LEC, Class 9, and a new Ch 17 Pt 4 of the Local Government Act 1993 for public interest proceedings against Councillors. Currently the New South Wales Civil and Administrative Tribunal has this supervisory function.

If you would like to find out more about the Bill, you can read our recent update here, read the Statement of Public Interest tabled by Minister Moriarty here, or view and track the Bill on Parliament’s website here.

Challenges to Woodside’s North West Shelf extension

Two groups have filed separate legal challenges to the environment minister’s approval of Woodside’s North West Shelf extension, one of the world’s biggest liquified natural gas projects.

Minister Watt approved this gas hub extension in September 2025, extending the life of its North West gas shelf processing plant on the Burrup peninsula in northern WA from 2030 to 2070.

More recently in November 2025, the UN Special Rapporteur on the human right to a clean, healthy and sustainable environment, has sought to intervene in the proceedings as amicus curiae.

Read more here and here.

Court orders action to protect threatened species

The Wilderness Society has settled proceedings brought against the Federal Environment Minister which sought to compel the Minister to comply with certain obligations under the EPBC Act to create recovery plans for threatened species.

The Federal Court has ordered the government to act, compelling the Minister to make long-overdue recovery plans for species including the ancient Australian lungfish, ghost bats, greater gliders and sandhill dunnarts.

Read more here.

Appeal filed in landmark climate change class action

Torres Strait Islander uncles have launched an appeal to the full court of the Federal Court to overturn the Court’s finding that the Commonwealth does not owe a duty of care to Torres Strait Islander people to protect them from the impacts of climate change.  You can read our summary of that decision in Pabai v Commonwealth of Australia (No 2) [2025] FCA 796 in our October 2025 edition of In the Zone here.

Read more about the appeal here.