D.P. Kirk Holdings Pty Ltd v Queanbeyan-Palerang Regional Council

Category: Principal judgment

Parties: D.P. Kirk Holdings Pty Ltd (Applicant)
Queanbeyan-Palerang Regional Council (Respondent)

Representation: Counsel:
M Staunton (Applicant)
L Mulligan (Solicitor) (Respondent)
Solicitors:
Tyrrell Planning Law (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2025/184850

Publication restriction: Nil

Judgment

1. COMMISSIONER: This appeal concerns an application to modify a development consent for a staged residential subdivision at Lots 2 and 3, DP 1027223 at Cowper Street, Braidwood. The proposed modification is for changes to the Stage 5 Plan of subdivision layout, including the reduction of lots from 11 to 9, removal of Road 6, and amendments to conditions of consent. The modification application was lodged pursuant to s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), and was granted on 2 December 2024. The applicant, dissatisfied with the determination of the application, particularly in relation to conditions 2A, 63, 66A and 67, lodged an appeal pursuant to s 8.9 of the EPA Act. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(1A) of the EPA Act. The final orders in this appeal, outlined in [11] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference between the parties, pursuant to s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference commenced on 24 February 2026. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The final signed agreement was filed on the same date, following the approval by the Council of an amendment to the modification application, pursuant to s 113(4) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation 2021). The amendment concerns the provision of details for one-way arrangements for, and retention of, the existing Wallace Street.

4. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(1A) of the EPA Act. The signed agreement is supported by an agreed Statement of Jurisdictional Prerequisites provided on 24 February 2026 (the Statement), which sets out the jurisdictional matters about which the consent authority must be satisfied. I have considered the contents of the Statement, together with the documents referred to therein and the Class 1 Application and its attachments. I have also considered the assessment report dated concerning development application 2004/DEV-0074 and the assessment reports dated 27 March 2018 and 2 December 2024 for modification applications MOD.2017.129 and MOD 2017.129B respectively. Based on those documents, I have considered the matters required to be considered pursuant to ss 4.55(3) and 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the proposed modification is of minimal environmental impact, and the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. I reach these conclusions for the following reasons:

6. The proposed modifications are of minimal environmental impact as they remove road 6 and reduce the lot yield for the subdivision, by consolidating 3 lots (508, 509, 510) into 1 lot (500). This reduces the number of lots and dwellings, as well as the extent of the road works.

7. Although the development to which the consent as modified relates is for a reduced land size, reduced lot yield and change in road and lot configuration when compared to the development for which consent was originally granted, the subdivision maintains its essential character as a low density residential subdivision. The development has been modified on four prior occasions, including as a result of the town of Braidwood being listed on the State Heritage Register following the original grant of consent. These modifications have reduced the size of the subdivision and the number of stages, and made changes to improve the amenity of the subdivision for future residents. I am satisfied that the development has not been so altered, by the previous modifications and the present modification application, so as to render it not substantially the same as the development for which consent was originally granted.

8. The modification application was notified by Council between 11 and 25 January 2024, and again between 21 October and 20 November 2024, in accordance with s 4.55(1A)(c) of the EPA Act. In response to the notification of the application, there were no submissions received.

9. Further, consistent with s 98 of the EPA Regulation 2021, the modification application was made with the written consent of the owner of the land.

10. Having reached the state of satisfaction that the decision is one that the Court could make in the proper exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

11. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.

Outcome

10. The Court notes that the respondent has agreed, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant’s amendment of Modification No. MOD.2017.129B to rely on the plan titled “Cowper Street / Wallace Street Preferred Concept Plan” (Revision A), prepared by McLaren Traffic Engineering and dated 5 December 2025.

11. The Court orders that:

12. The appeal is upheld.

13. Development Consent No. DA2004/DEV-00074 is modified in the terms in Annexure A.

14. Development Consent No. DA2004/DEV-00074 as modified by the Court is Annexure B.

J Gray

Commissioner of the Court

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Annexure A (219 KB, pdf)

Annexure B (614 KB, pdf)