/

/

Beattie v Lake Macquarie City Council [2026] NSWLEC 1131 | Case summary | Zoe

NSWNSWLEC

Beattie v Lake Macquarie City Council

[2026] NSWLEC 1131

Land and Environment Court (NSW)|2026-03-17|Before: Espinosa C

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2026-03-17

Before

Espinosa C

Catchwords

DEVELOPMENT APPEAL — residential development — vehicular access
by a road other than a classified road - conciliation
conference —
agreement between the parties — orders

Source

Original judgment source is linked above.

Email me a plain-English brief of this case

Zoe will write a short plain-English brief of this judgment and email it to you: what it was about, what the court decided and why. It can take up to a minute.

General information, not legal advice.

Or create a free account to save it and ask Zoe follow-up questions.

Catchwords

DEVELOPMENT APPEAL — residential development — vehicular accessby a road other than a classified road - conciliationconference —agreement between the parties — orders

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Beattie v Lake Macquarie City Council [2026] NSWLEC 1131

Hearing dates: Conciliation conference held on 9 and 10 March 2026

Date of orders: 17 March 2026

Decision date: 17 March 2026

Jurisdiction: Class 1

Before: Espinosa C

Decision: The Court orders:
(1) The appeal is upheld.
(2) Development Application No. DA/2145/2023, as amended, for a dwelling house, swimming pool and associated safety barriers and tree removal at Lot 124 DP 1056070, known as 53 Bareki Road, Eleebana NSW 2292, is determined by the grant of consent subject to the conditions at Annexure ‘A’.

Catchwords: DEVELOPMENT APPEAL — residential development — vehicular access by a road other than a classified road - conciliation conference — agreement between the parties — orders

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7
Land and Environment Court Act 1979 (NSW), ss 34, 34AA
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1 Lake Macquarie City Council Local Environment Plan 2014, cll 4.3, 4.6, 7.1, 7.2, 7.21

COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Development Application DA/2145/2023 seeking consent for the construction of a dwelling house, swimming pool and associated safety barriers (Proposed Development) at 53 Bareki Road, Eleebana legally described as Lot 124 in DP 1056070 (the Site).
The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which has been held on 9 and 10 March 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.
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. 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 that were originally in dispute between the parties.
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 jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of cl 4.6 of the Lake Macquarie City Council Local Environment Plan 2014 (LMLEP) to justify the contravention of a development standard. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement provided to the Court.
The Site is zoned R2 Low Density Residential zone under the LMLEP where dwelling houses are permissible with consent.
The maximum height of the Proposed Development (as amended) is 9.33 m and the Site is subject to a maximum height of building (HOB) development standard of 8.5 m pursuant to cl 4.3 of the LMLEP and the HOB Map. The 0.83 m (or 9.76%) height exceedance occurs at the south-west edge of the master bedroom and proceeds north-east through the study and to the stairwell/lift.
The DA is supported by a cl 4.6 written request prepared by de Witt Consulting dated 10 March 2026 (Written Request). I reproduce below a visual representation of the building height plane from the Written Request:
The Written Request addresses both tests as set out on cl 4.6(3) of the LMLEP. Firstly, the Written Request demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances because the objectives of the HOB development standard are achieved notwithstanding the non-compliance.
Secondly, the Written Request demonstrates that there are sufficient environmental planning grounds to justify the contravention of the development standard, being as follows:

The Court is satisfied that the applicant’s written request seeking to justify the contravention of the development standard in cl 4.3 of the LMLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the LMLEP.
The Site is mapped as Class 5 on the Acid Sulfate Soils Map and pursuant to cl 7.1 of the LMLEP, development consent is required for works on land mapped as Class 5 and that is below 5 m AHD. A small part of the Site is below 5 m AHD. However, as the Proposed Development does not propose to lower the water table on adjacent Class 1, 2, 3 or 4 land by 1 m, the parties agree that the Proposed Development therefore satisfies the requirements of cl 7.1 of the LMLEP.
The Proposed Development includes earthworks which are ancillary to the proposed residential development and do not require separate approval pursuant to cl 7.2 of the LMLEP.
Under cl 7.21 of the LMLEP, development consent must not be granted to development unless the consent authority is satisfied that any services that are essential for the development are available or that adequate arrangements have been made to make them available when required. In satisfaction of cl 7.21, the Court is satisfied that existing water, sewer, electricity and telecommunication services will be extended where necessary to provide for the new dwelling (see Class 1 Application Tab 10).
Bareki Road is a classified (State) road and Eleebana Road and Paroo Avenue are all local roads. The amended Proposed Development provides for a single point of vehicular access from Paroo Avenue, and not Bareki Road, satisfying the requirement of s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) to provide vehicular access to the land by a road other than the classified road.
The State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) applies to buildings that are defined as ‘BASIX affected development’ being “development that involves the erection but not the relocation of a BASIX affected building” (i.e. contains one or more dwelling). Therefore, the provisions of the Sustainable Buildings SEPP apply to the development proposal. A valid BASIX Certificate (Certificate No. 1392037M_02, dated 22 February 2026) has been submitted with the development application which demonstrates that the water, thermal comfort and energy requirements for the proposal have been achieved. In addition, the application also includes the embodied emissions of the Proposed Development in accordance with s 2.1(5) of the Sustainable Buildings SEPP. A condition has been imposed in the conditions of consent requiring compliance with the commitments in the BASIX Certificate.
The DA was lodged on 19 December 2023 and notified between 21 December 2023 and 1 February 2024 in accordance with the Respondent’s Community Participation Plan. On 1 February 2024 the DA was re-notified until 16 February 2024 to allow an extension of time for the lodgement of a submission by a nearby resident. Following the submission of amended plans by the Applicants and responses to requests for information, the Development Application was re-notified from 28 February 2025 to 24 March 2025. Following the submission of further amended documents, the DA was re-notified from 15 May 2025 to 10 June 2025. Further amendments were notified on Friday 6 March 2026 and objectors made oral submissions on site on 9 March 2026.
The parties agree that the concerns raised in the public submissions have been adequately considered and addressed through amendments to the DA as well as the conditions of consent agreed by the parties.
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. I adopt the reasons given by the parties as set out in this judgment.
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.