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[2025] NSWLEC 1642
General information, not legal advice.
Land and Environment Court (NSW)
2025-09-05
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Cambridge Park Developments Pty Ltd v Wingecarribee Shire Council [2025] NSWLEC 1642
Hearing dates: Conciliation Conferences on 17 March and 13 June 2025
Date of orders: 05 September 2025
Decision date: 05 September 2025
Jurisdiction: Class 1
Before: Kullen AC
Decision: The Court orders that:
(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $12,000, such amount to be paid within 14 days of the date of this order.
(2) The appeal is upheld.
(3) Development consent is granted to Development Application DA No. DA24/1217 for demolition of two existing dwelling houses, sheds and removal of eastern vehicular crossing, removal of trees, construction of seven dwellings across three buildings in a two-storey form, widening of an existing vehicular crossing, constructions of stormwater drainage infrastructure and landscaping including retention of existing front fencing on land legally comprising of Lot 16 in DP999144 and Lot 14 in DP708974 being 186-188 Argyle Street, Moss Vale, 2577, NSW subject to the conditions of consent at Annexure A.
Catchwords: DEVELOPMENT APPEAL — conciliation conference — agreement between the parties — orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17, 4.46, 8.7, 8.15, Sch 1, Div 2, cl 7 Land and Environment Court Act 1979 (NSW), s 34 Roads Act 1993 (NSW), s 138 Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2021 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119 Wingecarribee Local Environmental Plan 2010, cll 2.2, 2.3, 2.7, 7.3, 7.10
Texts Cited: Wingecarribee Development Control Plan 2010
Category: Principal judgment
Parties: Cambridge Park Developments Pty Ltd (Applicant)
Wingecarribee Shire Council (Respondent)
Representation: Counsel:
G McKee (Solicitor) (Applicant)
R McCulloch (Solicitor) (Respondent)
Solicitor:
McKees Legal Solutions (Applicant)
Pikes and Verekers Lawyers (Respondent)
File Number(s): 2024/338737
Publication restriction: Nil
COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal by Wingecarribee Shire Council of development application DA 24/1217 (the DA). The DA seeks consent for a multi dwelling housing development on Lot 16 in DP 999144 and Lot 14 in DP 708974 at 186-188 Argyle Street, Moss Vale, NSW, 2577 (the site) comprising:
Demolition of two existing dwelling houses, sheds and removal of eastern vehicular crossing;
Removal of all 14 trees on the site;
Construction of seven dwellings across three buildings in a two storey form including:
(a) Building 1: Three dwellings (Dwelling 1, 2 and 3) fronting Argyle Street; (b) Building 2: Two dwellings (Dwelling 4 and 5); (c) Building 3: Two dwellings (Dwellings 6 and 7); (d) Widening of an existing vehicular crossing from Argyle Street; (e) Construction of stormwater drainage infrastructure; and (f) Landscaping including retention of existing front fencing.
The DA was lodged with the Respondent on 17 July 2024. On 12 September 2024 the Applicant filed Class 1 proceedings with the Court.
The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 29 October 2024. An amended SOFAC was filed with the Court on 10 June 2025. The Applicant filed its Statement of Facts and Contentions in reply on 29 April 2025.
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 17 March 2025, commencing with an on-site view. I presided over the conciliation conference. Two submissions had been received in response to the notification of the DA, however no submitters attended the on-site view.
The s 34 conciliation conference was adjourned a number of times for the parties to reach an agreement on the proposed development. The parties reached a s 34 agreement on 13 June 2025. This decision involved the Court upholding the appeal and granting development consent to the DA, subject to conditions, as agreed by the parties.
The amended DA was further amended during the section 34 conference to address the Contentions raised by the Respondent as follows:
Waste collection arrangements including the relocation of the bus stop on Argyle Street Moss Vale;
Minor redesign to allow for improved solar access for a number of the dwellings on site; and
Changes to windows on the front elevation to improve the streetscape presentation.
The parties advise that the further amended DA satisfactorily addresses the contentions raised by the Respondent in the SOFAC.
The signed s 34 agreement, Annexure A (Conditions of Consent) and the amended plans (the amended DA) were filed with the Court on 13 June 2025. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites.
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 DA.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.
The DA was publicly notified from 2 September 2024 to 12 October 2024. Two submissions were received during the notification period. The amended DA was notified from 1 May to 30 May 2025, and one submission was received.
The parties advise that they agree that the matters raised by the submitters have been both taken into consideration and appropriately addressed through amended plans and conditions of consent.
The proposed development is integrated development pursuant to s 4.46 of the EPA Act as consent under s 138 of the Roads Act 1993 (NSW) is required for works on Argyle Street.
The Respondent advised in its SOFAC that on 1 October 2024 Transport for New South Wales (TfNSW) provided a referral response which did not support the proposal and requested additional information.
Following the amendments to the plans, TfNSW was consulted by the Respondent and provided a response dated 24 April 2025 which raised no objection to the amended proposed development and provided draft conditions to be included in the conditions of consent.
Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) is concerned with the protection of the biodiversity values, and the preservation of amenity, provided by trees and other vegetation in non-rural areas of NSW.
The parties advise that:
The proposed development will result in the removal of 14 trees;
The proposed development provides high quality landscape embellishment works including the planting of 22 trees within a residential context that aims to reduce the physical bulk and scale of the development and integrate the proposal within the context of the site and its surrounds; and
The proposed development will not result in clearing that exceeds a biodiversity offsets scheme, and does not involve clearing that is, or forms, part of a heritage item or a heritage conservation area, or is, or forms, part of an Aboriginal object or that is a known Aboriginal place of heritage significance.
The site is located within the Sydney Drinking Water Catchment, so Chapter 6 of the Biodiversity SEPP applies to the proposed development.
The parties advise that the further amended DA, which includes that amended Stormwater Concept Design Plans prepared by SGC, Revision P2, dated 19 December 2024, meets the requirements of Chapter 6 of the Biodiversity SEPP.
The Court is satisfied that the relevant planning considerations and planning policies of the Biodiversity SEPP are satisfied.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (the Resilience 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.
The parties advise the Court that:
The Statement of Environmental Effects (the SEE) prepared by The Architecture Company Pty Ltd dated 21 May 2024 states that the site has a historical use for residential purposes, which is proposed to continue; and
The parties agree the site is not likely to be contaminated and is therefore suitable for the proposed use.
The Court is satisfied for the purposes of s 4.6 of the Resilience SEPP that the site is suitable for the proposed development.
The parties advise that:
The DA is supported by BASIX Certificate No. 1735294M_02, issued by Gradwell Consulting, dated 3 June 2025. This certificate confirms the project passes the BASIX requirements; and
The provided BASIX Certificate satisfies the requirement in s 27 of the Environmental Planning and Assessment Regulation 2021 (NSW).
As the site has frontage to Argyle Street, a state road, s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (the Transport SEPP) applies to the proposed development.
As stated in pars [17] and [18] above, both the DA and the amended DA were referred to TfNSW by the Respondent. The conditions required by TfNSW in its response dated 24 April 2025 have been included in the conditions of consent.
The parties advise that they are satisfied that the provisions of s 2.119(2) of the Transport SEPP have been met, in particular in relation to the relocation of the bus stop in Argyle Street and the management of waste collection from the site.
TfNSW advise that consent under s 138 of the Roads Act 1993 (NSW) will be required for all works on Argyle Street.
The Wingecarribee Local Environmental Plan 2010 (the LEP) applies to the site and to the proposed development. The site is zoned R3 Medium Density Residential (R3 zone) pursuant to cl 2.2 of the LEP; and
Development for the purposes of multi-dwelling housing is permissible with consent within the R3 zone pursuant to cl 2.3 of the LEP;
Clause 2.7 of the LEP provides that demolition is permitted with consent; and
I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.
Clause 7.3 of the LEP relates to Earthworks, which provides that earthworks may be carried out with development consent if the earthworks alter the ground level (existing) by more than 600 millimetres. The earthworks proposed alter the ground level by more than 600, therefore, before granting development consent, the matters outlined in cl 7.3(3) of the LEP must be considered. The parties have considered those matters and agree:
the development is designed with stormwater collection, retention and discharge infrastructure and appropriate conditions to ensure that it does not result in a disruption or detrimental impact on stormwater drainage patterns or soil stability;
the earthworks will facilitate the proposed efficient use of the site in accordance with the proposed development, being a use contemplated by the controls applying to the site;
any excavated material will be reused on site where appropriate and otherwise disposed of at an appropriate off site facility in accordance with the conditions of consent;
the proposed development is not expected to result in an adverse impact on the amenity or structural integrity of adjoining properties;
the site is not identified as a heritage item and therefore the likelihood of relics or Aboriginal objects on the site is considered to be low; and
the development and stormwater management system are designed to provide a higher level of stormwater treatment and avoid, minimise and mitigate the impacts of the development.
Clause 7.10 relates to Public Utility Infrastructure. The parties advise that the site, being an existing residential use, has public utility infrastructure available.
Having considered the advice of the parties provided above at [12]-[35], I am satisfied that:
the Applicant’s further amended DA can be approved having regard to the matters in subs 4.15(1)(b)-(e) of the EPA Act;
the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and
approval of the proposed development is in the public interest.
Further, 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.
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.
The Court notes:
That Wingecarribee Shire Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), has approved the application for an amendment to development application DA 24/1217 made on 12 June 2025 to include the following documents:
| Plan Title / Supporting Document | Version | Prepared By | Dated | | A02 Site Analysis Plan | E | The Architecture Company Pty Ltd | 12.05.25 | | A02 Ground Floor Plan | G | The Architecture Company Pty Ltd | 12.05.25 | | A03 First Floor Plan | E | The Architecture Company Pty Ltd | 12.05.25 | | A04 Roof Plan | D | The Architecture Company Pty Ltd | 12.05.25 | | A05 Elevations 01 | E | The Architecture Company Pty Ltd | 14.04.25 | | A06 Elevations 02 | C | The Architecture Company Pty Ltd | 8.04.25 | | A07 Sections Colour Scheme | D | The Architecture Company Pty Ltd | 8.04.25 | | A08 Shadow Diagrams | C | The Architecture Company Pty Ltd | 8.04.25 | | A10 Site Data | D | The Architecture Company Pty Ltd | 12.05.25 | | A11 Turning Manoeuvres | D | The Architecture Company Pty Ltd | 12.05.25 | | L-01 Landscape Plan | E | RFA Landscape Architects | 10.04.25 | | SW100 Cover Sheet | P2 | S&G Consultants Pty Ltd | 19.12.24 | | SW200 Stormwater Concept Design – Ground Floor Plan | P2 | S&G Consultants Pty Ltd | 19.12.24 | | SW201 Stormwater Concept Design – Roof Plan | P2 | S&G Consultants Pty Ltd | 19.12.24 | | SW300 Stormwater Concept Design - Details Sheet - Sheet 1 of 2 P2 | P2 | S&G Consultants Pty Ltd | 19.12.24 | | SW301 Stormwater Concept Design - Details Sheet - Sheet 2 of 2 | P2 | S&G Consultants Pty Ltd | 19.12.24 | | SW400 Erosion And Sediment Control - Plan And Details | P2 | S&G Consultants Pty Ltd | 19.12.24 | | SW500 OSD Catchment Plan & Drains Model Result | P2 | S&G Consultants Pty Ltd | 19.12.24 | | SW501 Music Catchment Plan & Model Result | P2 | S&G Consultants Pty Ltd | 19.12.24 | | BASIX Certificate No. 1735294M_02 | - | Gradwell Consulting | 3.06.25 | | NatHERs Certificate No. 0009230930 | - | Gradwell Consulting | 3.06.25 |
The Court orders that:
Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $12,000, such amount to be paid within 14 days of the date of this order.
The appeal is upheld.
Development consent is granted to Development Application DA No. DA24/1217 for demolition of two existing dwelling houses, sheds and removal of eastern vehicular crossing, removal of trees, construction of seven dwellings across three buildings in a two-storey form, widening of an existing vehicular crossing, constructions of stormwater drainage infrastructure and landscaping including retention of existing front fencing on land legally comprising of Lot 16 in DP999144 and Lot 14 in DP708974 being 186-188 Argyle Street, Moss Vale, 2577, NSW subject to the conditions of consent at Annexure A.
Annexure A (544 KB, pdf)
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Cambridge Park Developments Pty Ltd
Wingecarribee Shire Council [2025] NSWLEC 1642