Develop 8888 Pty Limited v Campbelltown City Council

Catchwords: DEVELOPMENT APPLICATION — subdivision — vegetation removal — biodiversity management and offsets — koala habitat — conciliation conference — agreement between the parties — orders

Legislation Cited: Biodiversity Conservation Act 2016 (NSW), Pt 6, 7, ss 6.3A, 6.5, 7.2, 7.7, 7.13
Conveyancing Act 1919 (NSW), s 88B
Environmental Planning and Assessment Act 1979 (NSW), ss 1.7, 2.22, 4.2, 4.5, 4.16, 7.28, 8.7, 8.14, 8.15
Fisheries Management Act 1994 (NSW), Pt 7A
Land and Environment Court Act 1979 (NSW), ss 19, 34, 39
Biodiversity Conservation Regulation 2017 (NSW), ss 6.5, 6.7, 7.1, 7.3, 38
Campbelltown Local Environmental Plan 2015, cll 2.1, 2.3, 2.6, 2.7, 4.1, 5.10, 7.1, 7.4, 7.10, 7.20,
Environmental Planning and Assessment Regulation 2021 (NSW), s 23
State Environment Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4, 6, ss 4.8, 6, 7, 8, 9, 10
State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, ss 2.119, 2.120

Cases Cited: Codling v Central Coast Council [2019] NSWLEC 1158

Texts Cited: Campbelltown (Sustainable City) Development Control Plan 2015
Campbelltown Comprehensive Koala Plan of Management
Campbelltown Community Participation Plan

Category: Principal judgment

Parties: Develop 8888 Pty Limited (Applicant)
Campbelltown City Council (Respondent)

Representation: Counsel:
J Reid (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Marsdens Law Group (Respondent)

File Number(s): 2025/165288

Publication restriction: No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application 1051/2025/DA-SW, lodged 18 March 2025, (the DA) by Campbelltown City Council (hereafter the Council) which seeks development consent for demolition of existing structures, tree removal, civil and bulk earthworks, Torrens Title subdivision into 12 lots and construction of 2 local roads at 540 Campbelltown Road, Glenfield NSW 2167, being lot 40 in deposited plan 706911 (the site).

2. The proceedings fall within Class 3 of the Court’s jurisdiction pursuant to s 19(b) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

Background

3. The site is located on the south-eastern side of Campbelltown Road, which is a classified road.

4. The site has a total area of 6,828m2 with a frontage to Campbelltown Road of 35.24m, a north-eastern side boundary of 192.735m, a rear south-eastern boundary of 35.43m and a south-western side boundary of 192.835m. The site slopes to from the south-east to the north-west by approximately 2m.

5. The site contains a single storey detached dwelling at the front of the site and detached metal sheds behind the dwelling. A driveway from Campbelltown Road leads to the dwelling and large metal shed at the rear of the dwelling.

6. The site contains a variety of trees, shrubs and turf. The northern part of the site is characterised by scattered trees and turf, whilst the southern part of the site contains an area of dense native vegetation which is aligned with PCT 3320 Cumberland Shale Plains Woodland. PCT 3320 is associated with the Cumberland Plain Woodland in the Sydney Basin Bioregion, a critically endangered ecological community listed under Sch 2 of the Biodiversity Conservation Act 2016 (NSW) (“BC Act”). The southern part of the site is mapped on the Biodiversity Values Map (“BV Map”) as shown in Figure 1 below:

Figure 1 from Councils’ Statement of Facts and Contentions (SOFAC) filed 28 May 2025 being an extract of the Biodiversity Values Map.

7. The site is also mapped as “potential Koala habitat” on Figure 5.1 in the Campbelltown Comprehensive Koala Plan of Management (“CKPoM”) and there is a record of a koala sighting within the vicinity of the site.

8. The site is not listed as a heritage item and nor is it in a heritage conservation area. However, adjacent to the site is an item of local heritage significance identified as Milestone XXIV listed as Item I63 in Sch 5 of Campbelltown Local Environmental Plan 2015 (“CLEP 2015”). The milestone is 1 of 7 extant milestones (of an original group of 10) placed along Campbelltown Road and Denham Court at 1-mile intervals in 1854 by order of the Commissioners of the Roads Trust.

9. The Statement of Significance for Item I63, provides as follows:

“Of historical significance as one of seven extant sandstone milestones (of an original group of ten) placed along Campbelltown Road between Campbelltown and Denham Court at 1 mile intervals in 1854 by order of the Commissioners of the Roads Trust. The milestones are of historical significance as physical evidence of the 1850s road network in Campbelltown and mid-19th Century road administration and are features which once formed an integral part of the State's early road networks. The milestones are historically associated with the surveyor's obelisks originally located at Campbelltown and in Macquarie Place, Sydney (which is extant). The milestones are of aesthetic/technical significance as examples of mid-19th century stone masonry. The milestones are now rare in the state, particularly as a group of extant milestones following an early road alignment.”

10. An extract from the Heritage Map made under CLEP 2015 showing the item and its mapped curtilage is provided below at Figure 2:

Figure 2: Heritage Map under CLEP 2015 with site shaded red.

11. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 17 September, 8 October, 31 October and 11 November 2025. I presided over the conciliation conference.

12. 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 granting a variation to the Council’s development standard of the subdivision lot size required for residential allotments, upholding the appeal and granting consent subject to conditions.

13. 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. The parties’ decision involves the Court exercising the function under ss 4.16 and 8.14 of the EPA Act and ss 34(3) and 39(2) of the LEC Act.

14. 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 as set out below, and explained how the jurisdictional prerequisites have been satisfied.

15. EPA Act has been considered as follows:

16. Section 1.7 – Application of Pt 7 of Biodiversity Conservation Act 2016 (NSW) and Pt 7A of Fisheries Management Act 1994 (NSW).

(a) The EPA Act, relevantly, has effect subject to the provisions of Pt 7 of the Biodiversity Conservation Act 2016 (NSW) (BC Act) in connection with the terrestrial environment.

2. Section 2.22 of the EPA Act (and Schedule 1, Part 1, Division 2, cl 8A) – Mandatory community participation requirements.

(a) The DA was publicly exhibited in accordance with Campbelltown Community Participation Plan (CCPP) (made pursuant to s 2.22 of the EPA Act) between 1 April 2025 and 1 May 2025. Two (2) submissions were received in response. (b) The Court heard from Mr Dhungel of 33 Northampton Drive, Glenfield on site prior to commencement of the conciliation conference. Mr Dhungel’s concerns were focussed on completion of Northampton Drive to provide direct access to his home. The amended DA addresses Mr Dhungel’s concerns. (c) A submission was received from Mr Sartor of 20 Glatton Road, Glenfield during the exhibition period which raised the concerns summarised at [21] of the SOFAC which have been taken into account by the parties. (d) The Amended DA was not required to be renotified under the CCPP.

3. Section 4.2 – Development that needs consent

(a) Clause 2.6(1) of the Campbelltown Local Environmental Plan 2015 (CLEP) provides that the proposed development (subdivision) of the land requires development consent. Clause 2.7(1) of the CLEP provides that the demolition of a building or work requires development consent. The DA before the Court seeks such consent.

4. Section 4.5 – Designation of consent authority

(a) For the purposes of s 4.5 of the EPA Act, the Council is the nominated consent authority.

5. Section 7.28 – Housing and productivity contributions imposed as conditions of development consent

(a) A Ministerial planning order applies to require a housing and productivity contribution to be made in relation to the development. (b) Condition 65 imposes the condition required by s 7.28.

16. Environmental Planning and Assessment Regulation 2021 (NSW) has been considered as follows:

17. Section 23(1) – Persons who may make development applications:

(a) A development application may be made by—

(i) the owner of the land to which the development application relates, or (ii) another person, with the written consent of the owner of the land. (iii) The applicant to the DA is Develop 8888 Pty Limited (ACN 676 533 789). (iv) The owner of the Site is the Late Maree Freeman. (v) Carol Ann Dobbie and Kristene Elizabeth Smith as Executors of the Estate of the Late Maree Freeman provided written owners’ consent (dated 19 May 2024 and 16 August 2024) to the applicant to lodge the DA (Tab 15, Class 1 application). (vi) The applicant, as the applicant on the DA, has standing to commence these proceedings under s 8.7(1) of the EPA Act.

17. BC Act / Biodiversity Conservation Regulation 2017 (NSW) (BC Regulation) has been considered as follows:

18. Section 7.2 – Development or activity “likely to significantly affect threatened species”

(a) For the purposes of s 7.2, the proposed development is likely to significantly affect threatened species as clearing of native vegetation will exceed the biodiversity offsets scheme threshold prescribed by s 7.1 of the BC Regulation as it involves the clearing of native vegetation nominated on the Biodiversity Values Map published under s 7.3 of the BC Regulation.

2. Section 7.7(2) of BC Act – Biodiversity assessment for Pt 4 development (other than State significant development or complying development)

(a) The DA is accompanied by a biodiversity development assessment report (BDAR) prepared by Anne Clements & Associates Pty Ltd dated 7 October 2025 which is required where a proposed development is likely to significantly affect threatened species, in this case Cumberland Plain Woodland in the Sydney Basin Bioregion (Threatened Ecological Community). (b) The BDAR has been prepared pursuant to the biodiversity offsets scheme in Pt 6 of the BC Act and addresses the avoid, minimise and offset hierarchy principle at s 6.3A (at part C6.1.1.1 of the BDAR). (c) The BDAR concludes that there will not be a serious and irreversible impact on biodiversity values pursuant to s 6.5 of the BC Act and s 6.7 of the BC Regulation (at part C8.1.1.1 of the BDAR).

3. Section 7.13(3) of BC Act – Biodiversity assessment and offsets

(a) The BDAR has been taken into consideration and a condition imposed to retire biodiversity credits to offset the residual impact on biodiversity values of the number and class specified in the BDAR (condition 22).

18. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) has been considered as follows:

19. Section 4.6(1) of SEPP RH requires the consent authority to:

(a) Consider whether the land is contaminated. (b) If the land is contaminated, to be satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) If the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (d) The DA is supported by a Preliminary and Detailed Site Investigation prepared by Sydney Environmental Group dated 18 November 2024 (Class 1 application, Tab 19). (e) The PSI/DSI concludes that the Site is generally suitable for the proposed development, subject to the recommendations in S 16 being implemented. (f) Conditions consistent with the recommendations of the report are imposed at conditions 40, 46, 48, 58, 59 and 60.

2. Section 4.6(2) is not engaged.

3. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) has been considered as follows:

4. Chapter 4 – Koala Habitat Protection 2021

(a) Chapter 4 applies to the Campbelltown Local Government Area. (b) The CKPoM was approved by the Planning Secretary on 30 July 2020 under the former State Environmental Planning Policy (Koala Habitat Protection) 2019 and is an approved Koala Plan of Management for the purposes of s 4.8 of SEPP BC. (c) Pursuant to s 4.8(1), the proposed development is consistent with the approved CKPoM, demonstrated in the Koala Activity Assessment Report prepared by Wild Conservation dated August 2025. (d) Condition 66 requires payment of compensation for loss of koala habitat as required by the CKPoM.

2. Chapter 6 (Pt 6.2 Hawkesbury Nepean Catchment)

(a) The Site is located within the Hawkesbury-Nepean Catchment area. (b) The Council has considered and is satisfied of the matters required by ss 6.6-6.10.

20. State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2 is considered as follows:

21. Section 2.119(2) provides that the consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied of the listed matters.

(a) Campbelltown Road is a classified road. (b) The proposed residential lots will not have access off Campbelltown Road and will therefore not compromise the effective and ongoing operation and function of Campbelltown Road. (c) The control of dust during the subdivision works will be managed by conditions 40, 47 and 63. It is unlikely that the development (or construction) will emit smoke.

2. Section 2.120(3) requires the consent authority to be satisfied that appropriate measures will be taken to ensure acoustic amenity.

(a) The DA is supported by an acoustic report prepared by Day Design dated 29 November 2024 (Tab 3, Class 1 application). (b) The acoustic report undertakes an assessment of the traffic noise and makes recommendations for recommended acoustic treatment for future dwellings on proposed lots 1-4 at pages 15-17. (c) The acoustic report concludes on p 15 that lots 5-11 are suitable for standard construction techniques for dwellings as they will meet acceptable internal noise levels. (d) Condition 67 requires a restriction on the use of land pursuant to s 88B of the Conveyancing Act 1919 (NSW) to be registered on the titles for lots 1-4 notifying prospective purchasers that acoustical treatment is required for future dwellings to address road noise.

21. CLEP has been considered as follows:

22. Section 2.1 Land Zone Uses

(a) The land is zoned R2 – Low Density Residential.

2. Clause 2.3(2) requires the consent authority to ‘have regard’ to the objectives for development in a zone when determining a development application.

(a) Clause 2.3(2) of the CLEP does not require a positive finding of consistency or strict satisfaction of the zone objectives. The obligation imposed by cl 2.3 was succinctly described in Codling v Central Coast Council [2019] NSWLEC 1158 at [84] by Commissioner Gray as follows:

“It is clear from the terms of cl 2.3(2) that there is no requirement for development within the zone to comply with, or to achieve, each of the objectives of the zone. Nevertheless, the clause requires that the consent authority “have regard to” those objectives. They are therefore a mandatory consideration in the assessment process and a proposed development ought not be antipathetic to those objectives.”

(b) Regard has been had to the R2 zone objectives.

3. Clause 2.6 Subdivision – consent requirements

(a) Clause 2.6(1) provides that land may be subdivided but only with development consent. (b) Clause 2.6(2) does not apply.

4. Clause 4.1 Minimum subdivision lot size

(a) The minimum subdivision lot size development standard is 450m2. Lots 1-4 and 9-12 do not meet the minimum lot size. (b) A clause 4.6 request prepared ABC Planning Pty Ltd dated 22 September 2025 to vary the development standard has been prepared in relation to the amended DA and the parties are satisfied that it meets the requirements of cl 4.6.

5. Clause 5.10 Heritage conservation

(a) The site adjoins a mapped item of local heritage significance, being Item No. 63 “Milestone XXIV” listed in Sch 5 to the CLEP. Clause 5.10(4) requires the consent authority to consider the effect of development on the significance of heritage item when granting consent in respect of a heritage item. (b) Whilst works are proposed in the vicinity of the heritage listed milestone, the parties agree that its heritage significance will not be affected. (c) The amended DA is accompanied by a Statement of Heritage Impact (Weir Phillips Heritage, June 2025) which concludes that the development will have a minimal and acceptable impact on the item (section 6).

6. Clause 7.1 Earthworks

(a) Clause 7.1(3) requires the consent authority to consider the matters in subclauses (a)-(h). (b) Those matters have been considered by the parties.

7. Clause 7.4 Salinity

(a) The parties have considered the mandatory considerations in cl 7.4(3) and the Council is satisfied of the matters in cl 7.4(4).

8. Clause 7.10 Essential Services

(a) The essential services are available or adequate arrangements have been made to make them available when required.

9. Clause 7.20 Terrestrial Biodiversity

(a) The Site is mapped as containing “Biodiversity – significant vegetation” on the Terrestrial Biodiversity Map. The matters to which the consent authority must be satisfied in cl 7.20(4)(b) have been satisfied by the amended DA.

22. Campbelltown (Sustainable City) Development Control Plan 2015 (DCP) has been considered as follows:

23. The relevant provisions of the DCP have been considered as a focal point in the assessment of the DA.

Conclusion

23. For these reasons and based on the evidence before me, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

24. 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)(a) and (b) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. I shall uphold the appeal and grant the Development Consent in accordance with s 4.16 of the EPA Act.

Notation:

25. The Court notes:

26. Campbelltown City Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) to the Applicant amending Development Application No. 1051/2025/DA-SW in accordance with the following amended plans and documents:

| Plans | | | | | Plan no. | Revision no. | Plan title | Drawn by | Date of plan | | Sheet 1 of 1 | B | Plan of Subdivision | SDG Pty Ltd | 25.09.25 | | A00 | A | Cover Sheet | JANSSEN DESIGNS | 25.09.25 | | A01 | A | Calculation and LEP | JANSSEN DESIGNS | 25.09.25 | | A02 | A | Site Context Plan | JANSSEN DESIGNS | 25.09.25 | | A03 | A | Site Analysis Plan | JANSSEN DESIGNS | 25.09.25 | | A04 | A | Existing Surrounding Subdivision | JANSSEN DESIGNS | 25.09.25 | | A05 | A | Minimum Lot Size Compliance Diagram | JANSSEN DESIGNS | 25.09.25 | | A06 | A | Lot Calculation | JANSSEN DESIGNS | 25.09.25 | | A07 | A | Lot Calculation-A-01 | JANSSEN DESIGNS | 25.09.25 | | A08 | A | Lot Calculation-A-02 | JANSSEN DESIGNS | 25.09.25 | | A09 | A | Lot Calculation-A-03 | JANSSEN DESIGNS | 25.09.25 | | A10 | A | Lot Calculation-A-04 | JANSSEN DESIGNS | 25.09.25 | | A11 | A | Demolition Plan | JANSSEN DESIGNS | 25.09.25 | | A12 | A | Proposed Subdivision Plan | JANSSEN DESIGNS | 25.09.25 | | A13 | A | Building Envelope Plan | JANSSEN DESIGNS | 25.09.25 | | A14 | A | Section | JANSSEN DESIGNS | 25.09.25 | | A15 | A | Shadow Diagram 2D | JANSSEN DESIGNS | 25.09.25 | | A16 | A | Shadow Diagram 3D | JANSSEN DESIGNS | 25.09.25 | | DA01 | D | Cover Sheet, Drawing List and Locality Plan | Diversi Consulting | 24.09.25 | | DA02 | C | General Arrangement Plan | Diversi Consulting | 24.09.25 | | DA03 | D | Erosion and Sediment Control Plan | Diversi Consulting | 24.09.25 | | DA04 | C | Erosion and Sediment Control Details | Diversi Consulting | 24.09.25 | | DA05 | C | Demolition Plan | Diversi Consulting | 24.09.25 | | DA06 | C | Site Regrading Plan | Diversi Consulting | 24.09.25 | | DA07 | C | Site Regrading Sections sheet 1 of 2 | Diversi Consulting | 24.09.25 | | DA08 | C | Site Regrading Section sheet 2 of 2 | Diversi Consulting | 24.09.25 | | DA09 | D | Road Works and Drainage Plan | Diversi Consulting | 24.09.25 | | DA10 | C | Road Longitutdinal and Typical Sections – Road 1 | Diversi Consulting | 24.09.25 | | DA11 | C | Road Longitudinal | Diversi Consulting | 24.09.25 | | | | and Typical Sections – Road 2 | | | | DA12 | C | Stormwater Catchment Plan | Diversi Consulting | 24.09.25 | | DA13 | D | Stormwater Longitudinal Sections sheet 1 of 2 | Diversi Consulting | 24.09.25 | | DA14 | A | Stormwater Longitudinal Sections Sheet 2 of 2 | Diversi Consulting | 24.09.25 | | DA15 | A | Road Longitudinal and Typical Sections – Road 3 | Diversi Consulting | 24.09.25 |

| Documents | | | | | Document title | Version no. | Prepared by | Date of document | | Biodiversity Development Assessment Report | 1 | Anne Clements & Associates Pty Limited | 7 October 2025 | | Tree Inspection Report | - | Treehaven Environscapes | 18 August 2025 | | Clause 4.6 Variation to Minimum Subdivision Lot Size Standard Pursuant to Clause 4.1 of Campbelltown LEP 2015 | B | ABC Planning Pty Ltd | 22 September 2025 | | Koala Activity Assessment Report | - | Wild Conservation Pty Ltd | August 2025 | | Stormwater Management Strategy | - | Diversi Consulting | 24 September 2025 | | Statement of Heritage Impact | Final | Weir Phillips Heritage | 20 June 2025 | | Road Traffic Noise Intrusion Assessment | A | Day Design Pty Ltd | 19 May 2025 |

2. The Applicant filed the above-mentioned plans and documents with the Court on 3 and 18 November 2025.

Orders:

26. The Court orders:

27. The appeal is upheld.

28. Development Application No. 1051/2025/DA-SW (as amended) for the demolition of existing structures, tree removal, civil and bulk earthworks, a 14 lot Torrens title subdivision and construction of 3 local roads known as Brothers Lane, Sovereign Circuit and Northampton Drive on the land at 540 Campbelltown Road, Glenfield, legally described as Lot 40 in DP 706911, is determined by a grant of consent subject to conditions contained in Annexure “A”.

29. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs “thrown away” as a result of the amendments to the development application in the agreed amount of $9,000.00 within 21 days of these orders.

Michael Davidson

Acting Commissioner of the Court

Annexure A (448 KB, pdf)

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