Blueys Estate Pty Ltd v MidCoast Council

Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category: Principal judgment

Parties: Blueys Estate Pty Ltd (Applicant)
MidCoast Council (Respondent)

Representation: Counsel:
H Kahagalle (Solicitor) (Applicant)
K Mortimer (Solicitor) (Respondent)
Solicitors:
Thomson Geer (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2025/255573

Publication restriction: Nil

JUDGMENT

1. 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 deemed refusal of DA-2024/0911. The DA seeks consent for a concept application and stage 1 works for a caravan park (DA) at 3540 The Lakes Way, Charlotte Bay (site). The concept development primarily comprises:

2. 200 sites for camping and short term use.

3. Communal facilities.

4. Roads and drainage.

5. Earthworks.

6. Associated works.

7. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties on 17 December 2025. I presided over the conciliation conference. After subsequent adjournments, the parties filed an agreement to the Court on 23 February 2026.

8. The Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) to the Applicant amending DA-2024/0911 in accordance with the documents listed in condition 2 of Annexure A.

9. As part of the conciliation conference process, 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 for the amended application and granting development consent to the amended DA subject to conditions of consent.

Jurisdictional Prerequisites

5. As part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

7. In considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that there ‘are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement’ and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60] to [65].

8. I have carried out the required jurisdictional check: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [202]. 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

9. Owner’s consent accompanied the Class 1 Application as required by s 23 of the EPA Reg.

Community notification and objections

10. The Respondent notified the DA between 21 January 2025 and 25 February 2025. Two submissions were received and oral objections were made at the beginning of the conciliation conference.

11. As the parties have reached agreement, the Court is not able to consider the merits of the DA. The parties have advised the Court that they considered the concerns raised in the objections.

Biodiversity Conservation Act 2016

12. Section 7.7 of the Biodiversity Conservation Act 2016 (NSW) (BC Act) is agreed to apply. The parties have considered the proposal on the basis that it is likely to significantly affect threatened species within the meaning of s 7.2 of the BC Act, and as exceeding the biodiversity offsets scheme threshold based on the level of clearing proposed. The proposal is accompanied by an amended biodiversity development assessment report prepared by AEP dated November 2025 (BDAR). With regard of s 7.13(2), I accept that the parties have adequately considered the requirements of the s 7.13 on the basis of the BDAR and enforced by conditions 2, 37, 38 and 75.

Environmental Planning and Assessment Act 1979

13. The DA is a concept DA pursuant to s 4.22 pf the EPA Act and includes stage 1 works.

14. The proposed development is integrated development pursuant to s 4.47 of the EPA Act, requiring a bushfire safety authority under s 100B of the Rural Fires Act 1997 (NSW). The Rural Fire Service has issued General Terms of Approval (GTAs) which have been included as conditions of consent.

15. The appeal had been made within the allowed deemed refusal period, pursuant to ss 8.7, 8.10, 8.11 of the EPA Act and s 91(2)(b) of the EPA Reg.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. Section 3.6 applies as the site is agreed to be a potential koala habitat. The site is not core koala habitat as koalas have not been recorded or sighted on the site (s 3.7). As there are no relevant guidelines that apply to the site, the Applicant has prepared a Koala Management Plan prepared by AEP dated 30 November 2025 (Koala Management Plan) that details appropriate measures to ensure the safety of the local population of koalas during and post construction. The parties agree that the Koala Management Plan is consistent with Council’s MidCoast Koala Conservation Strategy and will not impact on koala habitat. I accept the parties’ agreement that the relevant provisions have been considered and met.

State Environmental Planning Policy (Housing) 2021

17. Section 131 mandates that development consent is required for caravan parks.

18. None of the sites are proposed for long term residence. Conditions of consent enforce this aspect of the proposal.

19. Section 133 requires consideration of a number of matters relating to location, character, site suitability, adequacy of low cost housing in the locality, community facilities, any relevant guidelines and the Local Government (Caravan Parks and Camping Grounds) Transitional Regulation 1993. On the basis of the Statement of Environmental Effects prepared by Lands Advisory Services dated October 2024 (SEE), I accept that these matters have been comprehensively considered and addressed.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH)

20. Section 2.10 applies as the site is mapped within a coastal environmental area. On the basis of the SEE and BDAR, I accept that the matters for consideration under s 2.10(1) and matters to be satisfied under s 2.10(2) have been met and that the proposal has minimised its impacts in the coastal area.

21. Section 4.6 applies to the site. The Preliminary Site Investigation prepared by Regional Geotechnical Solutions dated 25 June 2024 states that the contamination results were below the allowable residential levels and that the site can be made suitable for the proposed uses. The parties agree and I accept, that the provisions of s 4.6 of SEPP RH have been satisfied.

State Environmental Planning Policy (Transport and Infrastructure) 2021

22. Section 2.119 applies to the proposed development as it has frontage to a classified road. On the basis of the Traffic Impact Assessment prepared by SECA solution dated 26 October 2024 (TIA), I accept that there is no other access available than from a classified road; that the safety, efficiency and ongoing operation of The Lakes Way will not be adversely affected and that the proposed development will not be impacted from noise or emissions from The Lakes Way.

23. Section 2.122 traffic generating development applies to the proposal. TfNSW provided a referral on 30 January 2025. I accept that the referrals have been considered by the parties as evident from the amended DA and conditions of consent, including the intersection design.

Draft MidCoast Local Environmental Plan 2025

24. The proposal is expressly saved from the Draft MidCoast Local Environmental Plan 2025 (Draft LEP) applying to the DA pursuant to cl 1.8A, acknowledging the change to permissibility in the Draft LEP.

Great Lakes Local Environmental Plan 2014 (LEP)

25. The subject site is zoned RU2 Rural Landscape. The proposal for a caravan park is permitted with consent. Pursuant to cl 2.3 of the LEP, I accept that regard has been had to the objectives of the zone as demonstrated by the SEE.

26. Clause 5.21 flood planning applies, as parts of the site are within the flood planning area. Clause 7.5 stormwater management applies to the development. On the basis of the jurisdictional statement, Flood Study prepared by EMM dated January 2025, Flooding Response prepared by Lands Advisory Services dated 29 January 2026 and Stormwater Management Report prepared by Tattersall Lander Pty Ltd dated 30 September 2024, I accept that the parties are satisfied that cll 5.21 and 7.5 have been met.

27. Clause 7.2 earthworks applies. On the basis of the architectural plans prepared by OGE Group Architects Revision K and the SEE, I accept that the provisions have been considered.

28. Clause 7.21 essential services applies. I accept that the site is capable of being connected to water, electricity, sewerage, stormwater drainage and road access as detailed in the jurisdictional statement.

Heads of consideration

29. On the basis of the material accompanying the Class 1 appeal and the jurisdictional statement, I accept that the relevant matters for consideration pursuant to s 4.15(1) of the EPA Act have been adequately considered.

Conclusion

30. 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.

31. 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.

32. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

33. The Court orders that:

34. (1) The Applicant is to pay the Respondent’s costs thrown away by reason of the amendment of Development Application No. 2024/0911 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $6,000.00 within 28 days of these orders being made.

35. The appeal is upheld.

36. Development Application No. 2024/0911, seeking consent for a concept application and Stage 1 works for a caravan park at 3540 The Lakes Way, Charlotte Bay, is granted development consent, subject to the conditions of consent at Annexure A.

S Porter

Commissioner of the Court

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Annexure A (476 KB, pdf)