Goulburn Collective Pty Ltd v Goulburn Mulwaree Council

Catchwords: DEVELOPMENT APPLICATION: multi dwelling housing including alteration and additions to a contributory dwelling in a heritage conservation area – conciliation conference – amended plans and documents – agreement between the parties – orders made

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7, 8.15
Land and Environment Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), s 37
Goulburn Mulwaree Local Environmental Plan 2009, cl 2.3
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Goulburn Mulwaree Council Community Participation Plan, November 2019
Goulburn Mulwaree Development Control Plan 2009

Category: Principal judgment

Parties: Goulburn Collective Pty Ltd (Applicant)
Goulburn Mulwaree Council (Respondent)

Representation: Counsel:
A Gough (Solicitor) (Applicant)
K Mortimer (Solicitor) (Respondent)
Solicitors:
Storey and Gough Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2025/119605

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application DA/0125/2425. The development application, as amended, seeks consent for a five-unit multi dwelling housing that consists of the retention of an existing dwelling with alterations and additions and the construction of four new multi dwelling units, community title subdivision and stormwater drainage works. The development is proposed at 62 Verner Street (Lot 1 in DP 1295971) and 4 Little Bourke Street, Goulburn (Lot 1 in DP 810474).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Act 1979 (NSW) (LEC Act) between the parties, which was held on 3 September 2025. Despite an adjournment of the conciliation conference no agreement was reached, and the conciliation conference was ultimately terminated on 14 November 2025 and the matter set down for hearing.

3. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 16 March 2026. The parties approached the Court seeking orders for a further conciliation conference which was listed on 19 March 2026. I presided over the further conciliation conference. The parties' agreement is for the grant of consent to the development application, as amended, subject to conditions. This agreement meets the first condition to the exercise of power and obligation of a commissioner to dispose of the proceedings in accordance with the decision of the parties (this being the test applied by s 34(3) of the LEC Act): see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 (McMillan) at [51].

4. As the presiding Commissioner, I am satisfied that the second condition is met, that being the decision is one that the Court can make in the proper exercise of its functions: see McMillan at [51]. I form this state of satisfaction on the basis that:

5. Goulburn Collective Pty Ltd is the owner of the land. Further, as the works involve the installation of stormwater pipes through the property at 4 Little Bourke Street, Goulburn, written owner’s consent has been provided from the owner of that property.

6. As required by the Goulburn Mulwaree Council Community Participation Plan the development application was notified for 21 days between 28 November and 19 December 2024. One submission was received. Further, at the first conciliation conference the Court was addressed by a member of the public. As required by s 4.15(1)(d) of the EPA Act, I am satisfied that the issues raised have been considered by the parties and where appropriate are addressed in either amendments to the development application or conditions of consent.

7. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. I accept the parties' submission that the requirements of s 4.6 of the RH SEPP have been considered and the site is suitable to accommodate the development the subject of the amended development application. This is primarily because of the site’s longstanding history of residential use with no known history of potentially contaminating uses or events.

8. The development application involves works within 5m of an overhead electricity distribution pole. Pursuant to s 2.48(2) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) the consent authority is required to firstly give written notice to the electricity supply and secondly take into account any comments received within 21 days. The Development Application was referred to Endeavour Energy, who raised no objections to the proposal subject to appropriate conditions of consent in their response. These conditions have been included within the agreed conditions of consent in Annexure A.

9. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) as the site is located within the Sydney Drinking Water Catchment. The Respondent referred the amended development application to Water NSW in February 2026. The requirements of Water NSW, to ensure that the proposed development has a neutral or beneficial effect on water quality, are incorporated into the consent conditions in Annexure A.

10. Sections 6.6–6.10 of SEPP BC prescribe matters to which the consent authority must have regard in determining a development application. Having considered the Statement of Environmental Effects, the Stormwater Management Report, and the civil engineering plans, I accept the submissions of the parties that the considerations arising under ss 6.6–6.10 of SEPP BC do not warrant the refusal of development consent. In reaching this conclusion I note that:

(a) the proposal incorporates bioretention basins; (b) stormwater retention is to be achieved through the provision of rainwater tanks; (c) suitably designed erosion and sediment control measures are to be implemented prior to, and maintained during, construction; and (d) the site is not flood-prone and is not proximate to any natural waterbody, wetland, or aquatic reserve.

7. Pursuant to the Goulburn Mulwaree Local Environmental Plan 2009 (LEP 2009) the site is zoned MU1 Mixed Use. Development for the purposes of multi dwelling housing is permitted with consent in the zone. As required by cl 2.3 of LEP 2009, in determining the development application I have given consideration to the objectives of the zone.
8. The amended development application is compliant with the principal development standards in LEP 2009.
9. The site is located within the Goulburn City Heritage Conservation Area (HCA). The parties agree that the existing dwelling is a contributory item in the HCA. The amended development application proposes to retain the existing dwelling and is accompanied by a Statement of Heritage Impact. I accept the agreed submission of the parties that the amended development application will not have a detrimental impact on the significance of the HCA.
10. The proposed development involves cut and fill to facilitate the construction of the proposed multi dwelling housing units. With the assistance of the civil engineering plans and the stormwater management report I accept agreement of the parties that:

(a) The earthworks will not disrupt drainage patterns or soil stability. The proposal involves the construction of stormwater management measures that will appropriately convey stormwater from the property and into the Council drainage system.

(b) The excavation is part of the proposed redevelopment of the Property and will not of itself stymie the future use or redevelopment. The proposal does involve the placement of a stormwater pipe within an adjoining property, however it is located immediately adjacent to a side boundary to ensure that the redevelopment of this land is not impacted.

(c), (e) The proposed development will involve the importation of a small amount of clean fill.

(d) The earthworks will not detrimentally affect existing and likely amenity of adjoining properties.

(f) The likelihood of disturbing relics is low given the history of land uses on the property.

(g) The proposed development will not have adverse impacts on a waterway, drinking water catchment of an environmentally sensitive area.

(h) The proposed development involves the installation of water quality treatment systems and sediment and erosion control measures.

11. Goulburn Mulwaree Development Control Plan 2009 (DCP 2009) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2009. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

12. Having reached the state of satisfaction that the decision is one that the Court could make in the 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)).

13. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Notes

7. The Court notes that Goulburn Mulwaree Council, as the relevant consent authority, has agreed, under s 37 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending development application DA/0125/2425 in accordance with the documents listed below:

8. Architectural Plans prepared by Hugh Gordon Architects:

(a) Drawing Nos DA01.4, issue 4 and dated 19 February 2026. (b) Drawing Nos DA03.2, issue 2 and dated 4 November 2025. (c) Drawing Nos DA04.4, issue 4 and dated 19 February 2026. (d) Drawing Nos DA05.4, issue 4 and dated 19 February 2026. (e) Drawing Nos DA06.4, issue 4 and dated 19 February 2026. (f) Drawing Nos DA07.4, issue 4 and dated 19 February 2026. (g) Drawing Nos DA011.2, issue 2 and dated 4 November 2025. (h) Drawing Nos DA12.2, issue 2 and dated 4 November 2025. (i) Drawing Nos DA15.4, issue 4 and dated 19 February 2026. (j) Drawing Nos DA16.4, issue 4 and dated 19 February 2026.

2. Community Title Subdivision Plan prepared by Premise, dated 4 March 2026 and reference No 24965.
3. Engineering Plans prepared by Premise, revision B, dated 24 October 2025 and drawing Nos C001 to C003, C010, C020, C030, C031, C160 to C163, C170, C200, C210, C250, C260, C300, C350, and C500.
4. BASIX Certificate No 1835684M, prepared by Certified Energy and dated 3 March 2026.
5. NatHERS Certificates Nos #HR-UWSD21-01, #HR-7BTM9M-01, #HR-JSE5M8-01 and #HR-SO2R85-01, dated 3 March 2026.
6. Letter of owner's consent dated 4 March 2026.
7. Stormwater Management Report prepared by Premise and dated 6 February 2026.

Orders

8. The Court orders that:

9. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the sum of $10,000 within 28 days of these orders.

10. The appeal is upheld.

11. Development Application No DA/0125/2425 for a five unit multi dwelling housing development comprising the construction of four multi dwelling housing units, and internal alterations to the existing dwelling, and community title subdivision at Lot 1 in DP 1295971 being 62 Verner Street, Goulburn and Lot 1 DP 810474 being 4 Little Bourke Street, Goulburn is determined by the grant of consent subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

Annexure A (886 KB, pdf)

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