Commercial Solar Pty Ltd v Mid-Western Regional Council

Category: Principal judgment

Parties: Commercial Solar Pty Ltd (Applicant)
Mid-Western Regional Council (Respondent)

Representation: Counsel:
M Ball (Solicitor) (Applicant)
D Havadjia (Solicitor) (Respondent)
Solicitors:
MBM Legal and Conveyancing (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2025/129340

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application No. 0198/2024, as amended for the review application RVA0002/2025, for 4 x 2 bedroom serviced apartments, roadways and entries, carparking spaces with an accessible parking space and constructed in bitumen, landscaping and landscaping buffers (the proposal), at 106 School Lane, Budgee Budgee (the site), by Mid-Western Regional Council (the Council).

2. The site is located approximately 14 kilometres north of the town centre of Mudgee and 700m from the intersection of School Lane and Ulan Road. The site has an area of 6.20 hectares, contains an existing stock and domestic bore, and is currently occupied by a single dwelling, a cottage (for which no prior approvals have been located) and two rural sheds, accessed from School Lane.

3. 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 28 July 2025. 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. 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.

4. 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 preconditions to the exercise of power to grant development consent for the proposal.

Pre-conditions to the grant of consent

State Environmental Planning Policy (Biodiversity and Conservation) 2021

5. The State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies to the proposal as the area of land associated with the proposal is identified on the Koala Development Application Map. The site is greater than 1 hectare in size, including adjoining land within the same ownership, and no approved koala plan of management applies to the site. As the proposal does not involve the clearing of any trees, the proposal will not impact on koalas or koala habitat, pursuant to s 4.9.

State Environmental Planning Policy (Sustainable Buildings) 2022

6. Updated BASIX certificates have been provided for the proposal in accordance with s 27 of the EPA Regulation, as the proposal is a BASIX affected development. A condition of consent has been included ensuring that the commitments be met as listed in the certificates. The embodied emissions attributable to the development have been quantified in accordance with s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022.

State Environmental Planning Policy (Resilience and Hazards) 2021

7. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Hazards) requires a consent authority to consider the contamination and remediation of land when determining a development application. A site inspection and a search of the Council’s records did not reveal any potentially contaminating activities upon the site and in accordance with s 4.6(2)) of SEPP Hazards. I accept the Council’s submission that there is no known contamination of the land and that the site is suitable for the proposed use. I am satisfied that the matters under s 4.6 have been addressed.

Mid-Western Regional Local Environmental Plan 2012 (LEP 2012)

8. The site is zoned R5 Large Lot Residential pursuant to Mid-Western Regional Local Environmental Plan 2012 (LEP 2012) and the proposal is permissible with consent in the zone. The objectives of the zone, to which regard must be had, are:

• To provide residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality.

• To ensure that large residential lots do not hinder the proper and orderly development of urban areas in the future.

• To ensure that development in the area does not unreasonably increase the demand for public services or public facilities.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

9. The land is of an appropriate size to achieve a dwelling entitlement in accordance with cl 4.2A(3)(g). As a result, pursuant to cl 4.2A(3A), consent may be granted to the proposed serviced apartments on the land as the site is able to satisfy the provisions of cl 4.2A(3)(g) of LEP 2012.

10. All essential services that are relevant to the proposal are available or will be available, pursuant to cl 6.9.

Conclusion

11. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 5 August 2025 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

12. The orders of the Court are:

13. The appeal is upheld.

14. Development Application No. 0198/2024, as amended for the review application RVA0002/2025, for 4 x 2 bedroom serviced apartments, roadways and entries, carparking spaces with an accessible parking space and constructed in bitumen, landscaping and landscaping buffers, is determined by the grant of consent, subject to the conditions at Annexure ‘A’.

Susan O’Neill

Commissioner of the Court

Annexure A (287 KB, pdf)

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