Barkers Lodge Pty Ltd ATF Barkers Lodge Unit Trust v Wollondilly Shire Council

Category: Principal judgment

Parties: Barkers Lodge Pty Ltd ATF Barkers Lodge Unit Trust (Applicant)
Wollondilly Shire Council (Respondent)

Representation: Counsel:
H Grace (Applicant)
J Corradini-Bird (Solicitor) (Respondent)
Solicitors:
Bick & Steele (Applicant)
Wollondilly Shire Council (Respondent)

File Number(s): 2025/275650

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of Development Application No DA/2025/128/1 (DA) (as lodged) which sought development consent for a depot including three buildings, at grade parking and associated works on land described as Lot 202 DP 1220336 and known as 135 Barkers Lodge Road, Picton (Site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties on 19 November 2025. I presided over the hearing and the conciliation conference.

3. Following the s 34 conciliation conference and to address Council’s contentions and the issues raised in public submissions, further amendments were made to the proposed development and final amended plans and documents were submitted (Final Amended Plans) by the Applicant. In summary, the key changes in the Final Amended Plans include:

4. Removal of one shed from the scheme (being original shed 1).

5. Removal of the mezzanine level from original shed 2 (now shed 1).

6. Reduction in the number of car parking spaces to 18 and introduction of a soft landscape area for tree planting.

7. Relocation of the front fence from 3m to 9m behind the front boundary.

8. Redesign of the roof form over the two sheds from a skillion roof to a pitched roof with a centrally located gable.

9. Reduction in building height to the roof ridge and a further reduction over the most northern part of shed 1 to present as a single storey to the north.

10. Changes to stormwater and wastewater design.

11. Revised landscaping, landscape management and weed management.

12. Pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), Wollondilly Shire Council has approved amending the DA in accordance with the amended plans.

13. As the amended DA is the subject of Court proceedings, it is not required to be lodged on the NSW Planning Portal pursuant to s 38(4) of the EPA Regulation.

14. On 5 February 2026, the parties submitted an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the amended DA, subject to the conditions in Annexure A.

Jurisdictional Prerequisites

7. The signed agreement is supported by a Jurisdictional Note from the parties, that sets out the jurisdictional prerequisites that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act.

8. 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.

9. For the reasons set out below, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions as required by s 34(3) of the LEC Act.

Owner’s consent

10. I accept the parties’ agreement that the amended DA was lodged with the consent of the owners of the land to which the development relates.

Zoning and permissibility

11. The Site is zoned RU1 – Primary Production under the Wollondilly Local Environmental Plan 2011 (WLEP). Development for the purposes of a ‘depot’ is permissible with consent in the RU1 zone and therefore the proposed development, including its associated works, infrastructure and landscaping is permissible with consent. To the extent they are relevant, I accept the parties’ agreement that the proposed development is consistent with the objectives in cl 2.3 of the WLEP.

Public notification

12. The Final Amended Plans were notified by Council to adjoining and surrounding properties from 2 December 2025 to 16 December 2025 for a period of 14 days. A total of 28 written submissions were received in response to the notification of the Final Amended Plans.

13. There is a requirement for the consent authority to take into consideration these submissions under s 4.15(1)(d) of the EPA Act. I note that the parties agree, and I accept that the relevant issues raised in submissions have been adequately considered and addressed in the Final Amended Plans and through the conditions of consent in Annexure A.

Integrated development

14. The DA is integrated development and requires approvals from:

15. the NSW Rural Fire Service under s 100B of the Rural Fires Act 1997 (NSW);

16. the NSW Department of Planning and Environment – Water under s 91 of the Water Management Act 2001 (NSW); and

17. Subsidence Advisory NSW under s 22 of the Coal Mine Subsidence Compensation Act 2017 (NSW).

18. General Terms of Approval have been provided by each of the integrated development approval bodies and incorporated into the conditions of consent in Annexure A.

Wollondilly Local Environmental Plan 2011

16. The applicable development controls under the WLEP and the relevant matters required to be considered for the proposed development under the WLEP are set out below:

17. Pursuant to cl 5.21 of the WLEP (Flood planning), the site is within the flood planning area and development consent must not be granted on land within the flood planning area unless the consent authority is satisfied that the development satisfies the matters set out in cl 5.21. An Addendum Flood Assessment prepared by JCO Consultants dated 5 November 2025 was provided by the Applicant, and the parties agree and I accept that the Flood Study and Addendum Flood Assessment adequately address the relevant matters in cll 5.21(2) and 5.21(3) of the WLEP.

18. Clause 7.1 of the WLEP (Essential services) provides that development consent must not be granted unless the consent authority is satisfied that any of the following services that are essential for the proposed development are available or that adequate arrangements have been made to make them available when required. Based on the information provided by the Applicant, the parties agree and I accept that the requirements of cl 7.1 of the WLEP have been met in respect of the provision of essential services, including water, electricity and sewage.

19. Clause 7.3 of the WLEP (Water protection) applies to the proposed development because part of the Site is identified as “sensitive land” on the Natural Resources Water Map. Before determining a development application for development on sensitive land, the consent authority must consider any adverse impact of the proposed development on the specific items identified in cl 7.3. However, the parties agree and I accept that the proposed development will not result in any impacts on land identified as “sensitive land” on the Site.

20. Clause 7.5 of the WLEP (Earthworks) provides that before granting development consent for earthworks, the consent authority must consider the matters set out in cl 7.5(3). The proposed development does not include significant excavation and will not adversely impact on drainage patterns or soil stability or otherwise affect the future use or development of the Site or impact the amenity of adjoining properties. Consequently, the parties agree and I accept that the matters in cl 7.5(3) have been adequately considered.

21. Clause 7.9 of the WLEP (Development within metropolitan rural area) provides that development consent must not be granted to development on land to which the clause applies unless the consent authority has considered the matters set out in cl 7.9(3)(a). The Site is identified as being land within the Metropolitan Rural Area and the parties agree and I accept that the matters set out in cl 7.9(3)(a) are addressed in the Statement of Environmental Effect accompanying the DA and the Final Amended Plans.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

17. Chapter 4 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) – Koala Habitat Protection applies to land in the Wollondilly Local Government Area.

18. The provisions of s 4.9 of the Biodiversity and Conservation SEPP apply in circumstances where no koala plan of management has been approved in relation to the Site which is the case for the proposed development.

19. Pursuant to s 4.9(2), the potential impacts on koalas and koala habitat have been assessed in the Statement of Environmental Effects and the Final Amended Plans. The parties agree and I accept that the proposed development is not likely to result in any impacts on koalas or koala habitat. Accordingly, consent to the development application may be granted pursuant to s 4.9(3) of the Biodiversity and Conservation SEPP.

20. Chapter 6 of the Biodiversity and Conservation SEPP - Water Catchments applies to the Site because it is land within the Hawkesbury-Nepean Catchment.

21. In deciding whether to grant development consent to development on land in a regulated catchment, the consent authority must consider the matters set out in s 6.6(1)(a) to (g) of the Biodiversity and Conservation SEPP. Further, pursuant to s 6.6(2), development consent must not be granted unless the consent authority ensures (a) the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial; and (b) the impact on water flow in a natural waterbody will be minimised.

22. Section 6.13 of the Biodiversity and Conservation SEPP is a specific provision in relation to development in a Hawkesbury-Nepean conservation area sub-catchment. Section 6.13(2) requires the consent authority to consider the matters set out in s 6.13(2)(a) to (d) in deciding whether to grant development consent to development in a Hawkesbury-Nepean conservation area sub-catchment.

23. Based on the Statement of Environmental Effects and the Final Amended Plans, and subject to the implementation of the conditions of consent in Annexure A, the parties agree and I accept that the provisions of ss 6.6 and 6.13 of the Biodiversity and Conservation SEPP have been specifically considered and the requirements of the Biodiversity and Conservation SEPP have been adequately addressed.

State Environmental Planning Policy (Resilience and Hazards) 2021

24. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.

25. In this case, a preliminary site investigation was submitted with the original DA and the Final Amended Plans were accompanied by an Environmental Due Diligence Investigation Report prepared by 4Pillars dated 10 December 2025.

26. The Environmental Due Diligence Investigation Report concluded that the Site is suitable for the proposed commercial / industrial land use without further assessment or remedial work.

27. Accordingly, the parties agree and I accept that contamination has been adequately considered and the site is suitable for the proposed use in accordance with s 4.6 of the Resilience and Hazards SEPP.

State Environmental Planning Policy (Transport and Infrastructure) 2021

28. Section 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) requires written notice to the electricity supply authority in relation to any development likely to affect an electricity transmission or distribution network.

29. In this case, written notice was provided to Essential Energy and it indicated that it had no comments in respect of the proposed development. The parties agree and I accept that the amended development application will not alter the impacts on the electricity network or distribution network, and hence further written notification of the Final Amended Plans to Essential Energy is not required.

30. The Site has frontage to Barkers Lodge Road which is a classified road. Section 2.119 of the Transport and Infrastructure SEPP applies as the proposed development is on land that fronts a classified road. A consent authority must not grant consent to development on land that has a frontage to a classified road unless the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development.

31. The requirements of s 2.119 of the Transport and Infrastructure SEPP were addressed in the Traffic and Parking Assessment Report prepared by Jones Nicholson dated 29 October 2025. The Traffic and Parking Assessment relevantly concluded that the proposed development will not compromise the effective and ongoing operation and function of Barkers Lodge Road (being a classified road).

32. The parties agree and I accept that continued access from Barkers Lodge Road is acceptable, and that the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of any of the matters listed in s 2.119. I further accept that the development is of a type that is not sensitive to traffic noise or vehicle emissions and that there is no suitable alternative access to the proposed development, as the existing access to the Site is from Barkers Lodge Road.

33. Pursuant to s 2.122 of the Transport and Infrastructure SEPP, the DA was referred to Transport for NSW. Transport for NSW did not raise any objections to the proposed development and indicated that provided Council is satisfied the design for the works is acceptable then Transport for NSW would issue its concurrence under s 138 of the Roads Act 1993 (NSW). The parties agree and I accept that the amended development application will not alter the impacts on the road network and hence further written notification of the Final Amended Plans to Transport for NSW is not required.

34. Based on the above considerations, the parties agree and I accept that the requirements of the Transport and Infrastructure SEPP have been met.

Section 4.15 of the EPA Act

35. The parties agree and I accept that the mandatory matters in s 4.15 of the EPA Act that are of relevance to the DA (as described in the Final Amended Plans) have been taken into consideration by the parties, including the environmental, social and economic impacts in the locality, the suitability of the site, public submissions and the public interest.

Conclusion

36. Based on the Jurisdictional Note, the documents that accompany the Class 1 Application, and the documents referred to in Annexure A, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

37. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

38. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act.

Orders

39. The Court orders:

40. The appeal is upheld.

41. The Applicant is to pay the Respondent’s costs thrown away by reason of the amended application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed sum of $1.

42. Development consent is granted to Development Application No DA/2025/128/1 for a depot comprising two buildings, at-grade parking and associated works at 135 Barkers Lodge Road, Picton subject to the conditions of consent at Annexure A.

M Young

Acting Commissioner of the Court

Annexure A (713 KB, pdf)

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