//
[2025] NSWLEC 1809
General information, not legal advice.
Land and Environment Court (NSW)
2025-11-20
Targett C
Original judgment source is linked above.
Zoe will write a short plain-English brief of this judgment and email it to you: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Heir Asquith Pty Ltd v Shoalhaven City Council [2025] NSWLEC 1809
Hearing dates: Conciliation Conference on 4 September 2025
Date of orders: 20 November 2025
Decision date: 20 November 2025
Jurisdiction: Class 1
Before: Targett C
Decision: The Court orders that:
(1) The appeal is upheld.
(2) The Applicant is to pay the Respondent’s reasonable costs ‘thrown away’ in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as a result of the amendment to the development application as agreed or assessed.
(3) Development Application No. SF10921 for the following development on the land at Inyadda Drive, Manyana known as Lot 2 DP 1161638; Lot 106 DP 755923 and Sunset Strip, Manyana known as Lot 2 DP 1121854 is determined by granting consent subject to the conditions in Annexure A:
Subdivision of land into:
• 42-Lot Community Title subdivision under the Community Land Development Act 2021 comprising:
• Lot 1 Community Property, comprising a conservation zone for land to be protected, managed and restored, a community park, stormwater infrastructure and roads.
• Lots 2-42 Community Title residential lots
• 1 Torrens Title lot (lot 43) for Open Space (intended for dedication to Council).
Subdivision works including:
• Construction of roads including intersection treatments to existing public roads
• Installation of new culverts on Inyadda Drive
• Tree removal and clearing of vegetation
• Installation of landscaping including street tree planting
• Revegetation, enhancement and conservation work within the community property lot in accordance with a Vegetation Management Plan
• Installation of stormwater drainage and water quality and quantity control measures including 2 basins and associated drainage structures
• Earthworks for roads, drainage and finished levels of proposed lots
• Construction of retaining walls around perimeter Road No. 6 and Basin No. 2
• Installation of pressure sewer system
Catchwords: APPEAL – Development application - conciliation conference – agreement between the parties - orders
Legislation Cited: Biodiversity Conservation Act 2016 (NSW), Pt 7, ss 6.3A, 6.4, 6.12, 7.3, 7.7, 7.13, 7.16
Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.46, 8.7, 8.14, 8.15
Land and Environment Court Act 1979 (NSW), ss 17, 34
National Parks and Wildlife Act 1974 (NSW), s 90
Rural Fires Act 1997 (NSW), s 100B
Water Management Act 2000 (NSW), s 91
Biodiversity Conservation Regulation 2017 (NSW)
Environmental Planning and Assessment Regulations 2000 (NSW), cl 55
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4, s 4.9, Sch 2
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.3, 2.4, 2.10, 2.11, 2.12, 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48
Texts Cited: NSW Government, Planning for Bushfire Protection, November 2019
Shoalhaven Development Control Plan 2014
Category: Principal judgment
Parties: Heir Asquith Pty Ltd (Applicant)
Shoalhaven City Council (Respondent)
Representation: Counsel:
M Seymour SC (Applicant)
A Seton (Respondent)
Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2023/263435
Publication restriction: Nil
This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicant against the respondent’s refusal of the applicant’s development application (No. SF10921) (Development Application). The Development Application, as lodged, sought consent for a 100 lot residential subdivision including a community title lot for biodiversity protection purposes, proposed public reserve for a local park and RE1 open space lot, road construction and dedication, asset protection zones, tree removal, bulk earthworks, stormwater and water quality works, street tree planting and proposed sewer servicing scheme, on land identified as Lot 2 in Deposited Plan 1161638, Lot 106 in Deposited Plan 755923 and Lot 2 in Deposited Plan 1121854, known as Inyadda Drive and Sunset Strip, Manyana (Subject Land).
The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).
The Development Application was lodged with the respondent on 19 January 2022.
The Development Application is integrated development for the purpose of s 4.46 of the EPA Act as it requires:
a controlled activity approval under s 91 of the Water Management Act 2000 (NSW) (WM Act);
the grant of an Aboriginal Heritage Impact Permit under s 90 of the National Parks and Wildlife Act 197**4 (NSW) (NPW Act); and
a bushfire safety authority under s 100B of the Rural Fires Act 1997 (NSW) (RF Act).
After numerous requests for further information, “stock the clocks”, and responses to those requests, the respondent determined the Development Application by way of refusal on 24 February 2023.
On 18 August 2023, the proceedings were commenced in relation to the refusal of the Development Application, being within the appeal period prescribed by s 8.10 of the EPA Act.
There have been numerous amendments to the Amended Development Application including on 19 December 2023, 5 August 2024 and 30 April 2025 (Pre Hearing Amendments).
Following the termination of a conciliation conference arranged by the Court under s 34(1) of the LEC Act, the matter was listed for hearing on 19 to 21 August 2025.
On the first day of the hearing, the applicant was granted leave of the Court to formally amend the Development Application (Hearing Amendments).
During the hearing, the parties reached agreement and requested that the matter be listed for another s 34 conference. The Court granted this request, and the matter was listed for a s 34 conference on 4 September 2025, following which the hearing was vacated. I presided over the hearing (to the extent it was commenced) and conciliation conference.
The decision agreed upon is for the grant of consent to the Development Application as amended by the Pre Hearing and Hearing Amendments and as amended by further agreed amendments (Amended Development Application), subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.
The key differences between the Amended Development Application and Development Application as lodged include:
Reducing the proposed residential subdivision from 100 lots to 41 community title residential lots, one community property lot (Community Property Lot) and one Torrens title lot for open space.
Significant reduction in the removal of vegetation and affect on threatened species.
Amendments to the proposed road network and stormwater drainage system.
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 Development Application was notified between 9 February and 9 March 2022. On 8 March 2022, the notification period was extended for a further 22 days until 31 March 2022. There was significant community opposition to the proposal, with 250 written submissions being received in response to the notification raising concerns including:
bushfire risk and asset protection zones (APZs);
biodiversity impacts including serious and irreversible impacts;
removal of habitat for threatened species;
impacts on ground water dependent ecosystems;
potential for subsequent subdivision or intensification of use of larger lots;
inadequate stormwater management;
amenity and safety impacts from construction;
EPBC Controlled Action;
existing road network;
lack of infrastructure and services to support the proposal;
sewerage and water supply infrastructure;
heights of retaining walls;
noise from future roads;
traffic and access;
future use of RE1 zoned lot;
large scale earthworks including significant quantity of imported fill;
lack of contamination investigation and reporting;
privacy and overlooking to existing development given proposed ground level changes;
building heights on filled lots;
inadequate landscaping; and
no details of street lighting.
One submission in support and one comment were also received.
As set out at [7], the applicant was granted leave to amend the Development Application on:
19 December 2023 and the amended proposal was notified from 17 to 31 January 2024. 81 submissions were received in the notification period (80 in objection, one in support) and 139 objections were received outside of the notification period.
5 August 2024 and the amended proposal was notified from 7 August to 4 September 2024. 336 submissions were received in the notification period (334 in objection and 2 in support).
3 April 2025 and the amended proposal was notified from 2 to 30 May 2025. 134 submissions were received in the notification period.
In addition, the Court heard from six nominated residents at the site view at the commencement of the hearing who raised issues largely consistent with the written submissions.
The registered proprietor of all lots comprising the Subject Land is Manyana Projects Pty Ltd (Manyana). Manyana provided its consent to the lodgement of the Development Application (see Ex A, tab 3).
Relevant to the issue of owners’ consent are the APZs proposed in the Amended Development Application. Of note, the APZ proposed:
along the road reserve of Inyadda Drive has been removed from the application by way of Condition 1A of the Agreed Conditions following the amendment of the proposed lots with a frontage to Inyadda Drive so that the road reserve APZ is no longer required; and
on part of Lot 1 in DP 1161638 (Lot 1) will be subject to an easement requiring the maintenance of the APZ in perpetuity as per the letter from the owner of Lot 1 consenting to this arrangement (see Ex C, tab 17) and Condition 5 of the Agreed Conditions.
Therefore, owners consent has been relevantly obtained in this matter.
As set out at [4(1)] above, the Amended Development Application requires a controlled activity approval under s 91 of the WM Act.
On 12 October 2022, the NSW Department of Planning and Environment – Water provided General Terms of Approval (GTAs) for the proposal which are incorporated in the Agreed Conditions (see Condition 4).
As set out at [4(2)] above, the Amended Development Application requires the grant of an Aboriginal Heritage Impact Permit (AHIP) under s 90 of the NPW Act.
On 7 November 2022, the Department of Planning and Environment (as delegate under the NPW Act), issued GTAs for the proposal which are incorporated in the Agreed Conditions (see Condition 3) (Heritage GTAs).
As set out at [4(3)] above, the Amended Development Application requires a bush fire safety authority due to part of the Subject Land being mapped as bushfire prone land. Pursuant to s 100(B) of the RF Act, a person must obtain a bush fire safety authority before developing bush fire prone land for a purpose referred to in subsection (1), which relevantly includes the subdivision of bush fire prone land that could lawfully be used for residential or rural purposes.
Section 100B(2) of the RF Act relevantly provides:
“A bush fire safety authority authorises development for a purpose referred to in subsection (1) to the extent that it complies with standards regarding setbacks, provision of water supply and other matters considered by the Commissioner to be necessary to protect persons, property or the environment from danger that may arise from a bush fire.”
On 12 July 2022, the NSW Rural Fire Service (RFS) requested further information in relation to the proposal. On 18 January 2023, following a lack of response from the applicant, the RFS stated that it could not support the proposal.
The applicant has prepared the following reports that the parties agree contain the information required to apply for a bush fire safety authority:
Amended Bushfire Hazard Assessment Report prepared by Blackash Bushfire Consulting dated 29 September 2023 (Ex B, tab 13); and
Addendum to Bushfire Hazard Assessment Report prepared by Blackash Bushfire Consulting dated 30 July 2024 (Ex C, tab 14),
(collectively, Bushfire Reports).
The parties’ bushfire experts participated in the following expert reports:
Joint Expert Report – Bushfire, prepared by Mr McMonnies and Mr Short, filed 15 July 2025; and
Supplementary Joint Expert Report – Ecology and Bushfire Issues, prepared by Mr Harrington, Mr Short, Dr McLean and Mr McMonnies, filed 15 August 2025,
(collectively, Joint Expert Bushfire Reports).
Further, the bushfire experts confirmed in oral evidence that:
the relevant “standards” referred to in s 100B(2) of the RF Act refer to Planning for Bushfire Protection 2019 (PFBP); and
all relevant requirements of PFBP have been met and the Court can be satisfied that a bush fire safety authority can be issued.
For completeness, I note that the APZ proposed:
along the road reserve of Inyadda Drive has been removed from the application by way of Condition 1A of the Agreed Conditions following the amendment of the proposed lots with a frontage to Inyadda Drive so that the road reserve APZ is no longer required; and
on part of Lot 1 will be subject to an easement requiring the maintenance of the APZ in perpetuity as per the letter from the owner of Lot 1 (see Ex C, tab 17) and Condition 5 of the Agreed Conditions.
The parties agree, and I accept, that notwithstanding the RFS declined to issue a bush fire safety authority under s 100B of the RF Act based on the information it had at the relevant time, the Court is able to determine the appeal regardless and is not bound to refuse the application because RFS has not issued GTAs or granted the relevant approval (see s 8.14(a) and (b) of the EPA Act).
Based on the relevant provisions of PFBP, Bushfire Reports, Joint Expert Bushfire Reports, agreed oral evidence of the bushfire experts, and Agreed Conditions, I am satisfied that development consent should be granted to the Amended Development Application notwithstanding that the RFS has not issued GTAs pursuant to s 100B of the RF Act.
The parties agree that the proposed development is likely to significantly affect threatened species for the purposes of Pt 7 of the Biodiversity Conservation Act 2016 (NSW) (BC Act) having regard to the test in s 7.3 of the BC Act.
A Biodiversity Development Assessment Report (BDAR) prepared by GHD dated November 2025 forms part of the Amended Development Application under s 7.7(2) of the BC Act.
For the purposes of 6.12 of the BC Act, the parties agree that the BDAR:
was prepared by a suitably accredited person for the purposes of the BC Act who has certified that the report has been prepared on the basis of the requirements of (and information provided under) the biodiversity assessment method as at 13 November 2025 (being the date the BDAR was prepared) as required by s 6.15 of the BC Act;
sets out in Section 8 the measures that the proponent of the proposed development proposes to take to avoid or minimise, and mitigate, respectively, the impacts of the proposed development on biodiversity values as required by s 6.12(c) of the BC Act; and
concludes that both ecosystem and species credits are required to offset the impacts of the proposed development as detailed in the BDAR and summarised at p iv as required by s 6.12(d) of the BC Act. Condition 49 of the Agreed Conditions requires the credits to be retired as required by s 7.13(3) of the BC Act.
Pursuant to s 7.13(2) of the BC Act, the consent authority is to relevantly take into consideration the likely impact of the proposed development on biodiversity values as assessed in the BDAR that relates to the application. Further, the consent authority may (but is not required to) further consider under that EPA Act, the likely impact of the proposed development on biodiversity values. In determining the Amended Development Application, I confirm that I have considered the likely impact of the proposed development on biodiversity values as assessed in the BDAR and considered by the ecology experts in this matter.
Pursuant to s 7.16(2) of the BC Act, the consent authority must relevantly refuse to grant consent under Pt 4 of the EPA Act for an application for development consent if, in the consent authority’s opinion, the proposed development is likely to have serious and irreversible impacts on biodiversity values (SAII). Pursuant to s 6.5 of the BC Act, the determination of SAII on biodiversity values is to be made in accordance with the principles prescribed by the Biodiversity Conservation Regulation 2017 (NSW) (BC Regulation).
An assessment of the risk of SAII arising from the proposed development has been undertaken in the BDAR. The parties agree, and I accept, as per par 57 to 58 of the Jurisdictional Statement and Section 9.3 of the BDAR, that the development will not result in a SAII on the identified endangered ecological communities.
Section 6.4 of the BC Act establishes a requirement to take all reasonable measures to avoid or minimise impacts on biodiversity values and to offset residual impacts. Further, s 6.3A of the BC Act establishes the avoid, minimise and offset hierarchy.
The parties agree, and I accept, that the proposed development has achieved a satisfactory degree of avoidance and minimisation of impacts for the purposes of ss 6.3A and 6.4 of the BC Act. This is due to:
the analysis set out in the BDAR in Section 8;
the agreement of the ecology experts in Ex 5, pars 63-64; and
further amendments to the proposal, including:
(a) further reduction of the residential lot yield from 42 to 41 residential lots; (b) extensive conservation and revegetation efforts that will be undertake on the Community Property Lot that will be able to be managed and enforced by the Community Association under the Vegetation Management Plan (VMP) (and as a Biodiversity Stewardship Site); (c) amendments to building envelopes and stormwater engineering to retain further trees within lots; (d) restrictions on title for “locked” building envelopes and tree retention by way of s 88B Instruments (see Condition 97(h) of the Agreed Conditions); and (e) inclusion of additional land (previously proposed as Lot 41) into the Community Property Lot to be managed under the VMP.
Chapter 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) applies to the Amended Development Application as the Subject Land is located within the “coastal zone” pursuant to ss 2.3 and 2.4 of the RH SEPP, and “coastal environment area” and “coastal use area” more specifically for the purposes of ss 2.10 and 2.11 of the RH SEPP, respectively.
Pursuant to s 2.10 of the RH SEPP relating to “coastal environment area”, development must not be granted to development unless the consent authority has considered the matters in s 2.10(1) and is satisfied of the matters in s 2.10(2). The parties agree, and I accept that, that:
the proposed development footprint is not located on that part of the Subject Land mapped as “coastal environment area”;
the part of the Subject Land mapped as “coastal environment area” will be subject to management requirements under the VMP; and
the applicant has prepared an Operations Management Plan that will continue to assess water quality outputs from the proposal and has prepared a coastal engineering report (see Coastal Engineering Report and Supplementary Coastal Engineering Advice prepared by Horton Coastal Engineering dated 5 October 2023 and 30 July 2024 respectively, (collectively, Coastal Engineering Reports)) that confirm that the footprint is not expected to affect the opening and closing regime of the intermittently closed and open lake and lagoon (ICOLL).
In determining the Amended Development Application, I confirm that I have considered the matters listed in s 2.10(1) of the RH SEPP and am satisfied of the matters in s 2.10(2).
Pursuant to s 2.11 of the RH SEPP, development must not be granted to development on land within the “coastal use area” unless the consent authority has considered the matters in s 2.11(1)(a) and is satisfied of the matters in s 2.11(1)(b). The parties agree, and I accept that:
the only part of the proposed development footprint located within the “coastal use area” is where the emergency access is located to the east of proposed Lot 14;
the footprint of the development has been sited to maintain existing, safe access to and along the foreshore and visual amenity of the coast, subject only to management restoration works under the VMP which provides assurance that the land will be maintained and conserved in perpetuity; and
the placement of the emergency access has been sited to accord with an existing trail within the Subject Land, to avoid creating further impacts on the area.
In determining the Amended Development Application, I confirm that I have considered the matters listed in s 2.11(1)(a) of the RH SEPP and am satisfied of the matters in s 2.11(1)(b).
Section 2.12 of the RH SEPP provides that development consent must not be granted to development on land within the coastal zone unless the consent authority is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land. The parties agree, and I accept, that the proposed development is not likely to cause an increased risk of coastal hazards on that land or other land for the reasons set out at [46] and [47] above.
Section 4.6(1) of the RH SEPP provides that a consent authority must not consent to the carrying out of any development on land unless:
(a) it has considered whether the land is contaminated; and (b) If the land is contaminated, it is 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.
The Amended Development Application relies on the following documents:
Amended Preliminary Site Contamination Investigation Report (PSI) prepared by Terra Insight dated 9 August 2023; and
Addendum Letter prepared by Terra Insight dated 30 July 2024 (Contamination Addendum Letter),
(collectively, the Contamination Reports).
The parties agree that the requirements of s 4.6 of the RH SEPP have been satisfied on the basis that:
The PSI concludes that the risk of contamination on the Subject Land is low with the exception of:
(a) areas subject to historical illegal waste disposal which require localised remediation; and (b) identified areas of localised lead contamination which require off-site disposal.
The PSI advises that these two sources of contamination do not warrant the preparation of a formal Remediation Action Plan and subject to the recommended localised remediation, the Subject Land is suitable for the proposed residential development.
The Agreed Conditions contain various conditions relating to remediation, validation and unexpected finds (including Conditions 1, 32-34 and 58).
Having regard to the Contamination Reports and Agreed Conditions, I am satisfied that the Subject Land will be suitable for its proposed use before the land is used for that purpose and that the requirements of s 4.6 of the RH SEPP have been met.
The parties agree that Ch 4 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the Amended Development Application as the Subject Land is located within the Shoalhaven local government area as listed in Sch 2 and not within rural zoned land.
Section 4.9 of the BC SEPP applies to the Amended Development application as the Subject Land is over 1ha (including land adjoining land within the same ownership) and does not have an approved koala plan of management applying to the land.
The parties agree, and I accept, that targeted surveys confirmed no evidence of koalas or core koala habitat within the Subject Land and the proposal would have only a low impact on potential koala habitat (see p 10 of the BDAR). Accordingly, while Ch 4 applies, a koala assessment report is not required and the Court is not prohibited from granting consent to the Amended Development Application having regard to the BC SEPP.
The Subject Land is zoned part R1 General Residential, R5 Large Lot Residential, C3 Environmental Management and RE1 Public Recreation under the Shoalhaven Local Environmental Plan 2014 (SLEP). Accordingly, the development the subject of the Amended Development Application is permitted with consent in the relevant zones.
In determining the Amended Development Application, I have had regard to the zone objectives which are extracted below:
Zone R1 General Residential
1 Objectives of zone
• To provide for the housing needs of the community.
• To provide for a variety of housing types and densities.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To identify land suitable for future urban expansion.
Zone R5 Large Lot Residential
1 Objectives of zone
• 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.
Zone C3 Environmental Management
1 Objectives of zone
• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.
• To provide for a limited range of development that does not have an adverse effect on those values.
• To protect the natural and cultural features of the landscape, including coastal and foreshore areas, that contribute to scenic value and visual amenity.
• To maintain the stability of coastal land forms and protect the water quality and ecological values of estuaries and coastal streams.
Zone RE1 Public Recreation
1 Objectives of zone
• To enable land to be used for public open space or recreational purposes.
• To provide a range of recreational settings and activities and compatible land uses.
• To protect and enhance the natural environment for recreational purposes.
The subdivision of land is permissible with consent pursuant to cl 2.6 of the SLEP.
Clause 4.1 of the SLEP sets out minimum lot sizes for land shown on the Lot Size Map. The parties agree that the only lot subject to this clause is proposed Lot 43 – Open Space, however, the RE1 zone has no minimum lot size shown on the Lot Size Map.
Clause 4.1AA of the SLEP sets out minimum subdivision lot sizes for community title schemes. Pursuant to cl 4.1AA(3), the size of any lot resulting from a subdivision of R5 or C3 land must not be less than the minimum size shown on the Lot Size Map in relation to that land. The minimum lot size is 2,000m2 for land zoned R5 and 40ha for land zoned C3. The parties agree, and I accept that, all residential lots are at least 2,000m2, meeting the R5 minimum lot size, and the C3 zoned land is contained entirely within the Community Property Lot (being 66,745ha and exceeding the C3 minimum lot size).
Clause 4.1F of the SLEP sets out minimum subdivision lot sizes for community scheme and strata plan lots. Pursuant to cl 4.1F, the minimum lot size for subdivision on land zoned R1 is 500m2. The parties agree, and I accept, that all residential lots are at least 2000m2 and therefore comply with this provision.
Clause 5.10 of the SLEP relating to “heritage conservation” applies to the proposal as the Aboriginal Cultural Heritage Assessment Report prepared by Apex dated August 2023 (ACHAR) identifies six previously registered Aboriginal sites within the Subject Land, thus satisfying the definition of “Aboriginal object” under the SLEP. The ACHAR provides that an Aboriginal Heritage Impact Permit (AHIP) is required to permit impacts on identified items. The Addendum Letter to the ACHAR prepared by Apex dated 3 July 2024 (Heritage Addendum) provides that the amendment to the proposed subdivision does not alter the ACHAR’s recommendations. Condition 3 of the Agreed Conditions requires compliance with the Heritage GTAs and Condition 55 requires certain processes to be followed in the event a personably suspects that a relic or Aboriginal object is discovered.
Further, for the purposes of cl 5.10(2)(d), the parties agree, and I accept that the Subject Land does not fall within the definition of an “Aboriginal place of heritage significance”.
The parties agree, and I accept that, the Amended Development Application is acceptable having regard to the heritage considerations in cl 5.10 of the SLEP having regard to the ACHAR, Heritage Addendum and Agreed Conditions.
Pursuant to cl 5.16 of the SLEP relating to “subdivision of, or dwellings on, land in certain rural, residential or conservation areas”, the parties agree that the consent authority must consider the matters listed in cl 5.16(4) in respect of, relevantly, those parts of the Subject Land zoned R5 Large Lot Residential and C3 Environmental Management. The parties agree, and I accept that, the Subject Land is presently vacant and the proposed development is consistent with the predominant land uses in the vicinity of the Subject Land, being residential development.
Pursuant to cl 5.21 of the SLEP relating to “flood planning”, the consent authority must be satisfied of the matters listed in cl 5.21(2) and consider the matters listed in cl 5.21(3). The parties agree, and I accept, that:
part of the Subject Land is identified as being within the flood planning area and cl 5.21 of the SLEP therefore applies to the proposal;
the Amended Development Application is compatible with the flood function of the affected land and appropriately mitigates the risk of flooding;
the proposal is accompanied by a Stormwater Management and Flood Assessment Report prepared by Egis Consulting dated 29 July 2024 (Flood Report) and all development has been removed from the relevant flood affected land (which is now entirely contained in the Community Title Lot and will be managed by the VMP);
the development is appropriately set back from the riparian corridor that traverses the Subject Land; and
the Amended Development Application proposes upgrade works to public infrastructure, being the culvert on Inyadda Drive, which will improve flood risk mitigation for the community.
Having regard to the agreement of the parties, Flood Report and Agreed Conditions, I confirm that I am satisfied of the matters in cl 5.21(2) and have considered the matters in cl 5.21(3) of the SLEP.
Pursuant to cl 7.1 of the SLEP relating to “Acid sulfate soils”, development consent is required for the carrying out of specified works on land shown on the Acid Sulfate Soils Map as being of the class specified for those works. The parties agree that although the Subject Land is identified as being within a Class 5 Area for the purposes of the Acid Sulfate Soils Map, the Geotechnical Report prepared by Terra Insight dated 9 August 2023 (Geotech Report) confirms that although acidic soils are endemic to the local area, they should not be treated as acid sulfate soils in relation to the Subject Land as they are not derived from the oxidation of Reduced Inorganic Sulfar. The Geotech Report concludes that an acid sulfate soil management plan is not required, however, should the applicant encounter acid sulfate soils during works, Condition 53 of the Agreed Conditions provides for appropriate mitigation.
Having regard to the agreement of the parties, Geotech Report, Contamination Addendum Letter and Agreed Conditions, I am satisfied that an acid sulfate soils management plan is not required under cl 7.1 of the SLEP.
Pursuant to cl 7.2 of the SLEP relating to “earthworks”, the consent authority must consider the matters listed in cl 7.2(3) of the SLEP before granting consent. Having regard to the Geotech Report, PSI, Contamination Addendum Letter and Agreed Conditions, I confirm that I have considered the matters listed in cl 7.2(3) of the SLEP.
Pursuant to cl 7.5 of the SLEP relating to “terrestrial biodiversity”, the consent authority must consider the matters listed in cl 7.5(3) and be satisfied of the matters in cl 7.5(4) before granting consent. The parties agree, and I accept that:
The Subject Land is identified as “Biodiversity – habitat corridor” and “Biodiversity – significant vegetation” on the Terrestrial Biodiversity Map and cl 7.5 of the SLEP therefore applies to the proposal.
The Amended Development Application is accompanied by the BDAR and VMP which demonstrate that significant adverse environmental impacts have been reasonably avoided or that such impacts have been minimised.
The VMP and Operation Management Plan also provide ongoing management requirements to ensure the environmental impact of the proposal will be managed in perpetuity.
Therefore, having regard to the BDAR, VMP, Operation Management Plan and Agreed Conditions, I confirm that I have considered the matters in cl 7.5(3) and am satisfied of the matters in cl 7.5(4) of the SLEP.
Pursuant to cl 7.6 of the SLEP relating to “riparian land and watercourses,” the consent authority must consider the matters listed in cl 7.5(3) and be satisfied of the matters listed in cl 7.5(4) before granting consent. The parties agree and I accept, that:
Part of the Subject Land is identified as Riparian Land as per the Riparian Lands and Watercourses Map and cl 7.6 of the SLEP therefore applies to the proposal.
The development is designed, sited and will be managed to avoid any significant adverse environmental impact on those parts of the Subject Land identified as riparian land.
Therefore, having regard to the BDAR, VMP, Operation Management Plan and Agreed Conditions, I confirm that I have considered the matters in cl 7.6(3) and am satisfied of the matters in cl 7.6(4) of the SLEP.
Pursuant to cl 7.11 of the SLEP, a consent authority must not grant development consent to development unless it is satisfied that all services that are essential for the proposed development are available or that adequate arrangements have been made to make those services available when required. The parties agree, and I accept that:
the proposal is accompanied by a Preliminary Servicing Report – Water and Wastewater Servicing prepared by Calibre dated 22 November 2021 and Electrical Concept Plan (undated);
the proposal includes the delivery of roads (to be maintained by the Community Association) and stormwater drainage control – see Road and Drainage Design Plans prepared by Egis dated 25 August 2025; and
to ensure the local community supply of reticulated water is not affected in a bushfire event, Condition 5 of the Agreed Conditions (see p 13) requires that each proposed residential lot be serviced by an individual water tank.
Having regard to the above, I am satisfied that the services that are essential for the proposed development the subject of the Amended Development Application are available or adequate arrangements have been made to make that infrastructure available when required in accordance with cl 7.11 of the SLEP.
The parties agree that the Amended Development Application can be approved taking into consideration the matters listed in s 4.15(1)(b)-(e) of the EPA Act. Matters relevant to subsections (b), (c) and (e) are considered generally above and in the Addendum to the Statement of Environmental Effects prepared by GLN dated 27 August 2025 (see pp 4-5).
In relation to s 4.15(d) of the EPA Act, the notification of the Development Application and its various amendments has been set out at [14] – [17] above. I am satisfied that the written and oral submissions received have been taken into consideration and addressed in the assessment and determination of the Amended Development Application.
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.
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 Court notes that the respondent, as the relevant consent authority, has agreed under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 to the applicant amending Development Application No. SF10921 to include the following material:
| TAB | DOCUMENT | DATE | | 1. | Amended Subdivision plans • 21-000403-MP-32A Subdivision Plan Sheet 1 of 5 (rev 8) • 21-000403-MP-32B Building Envelopes Plan & APZ Sheet 2 of 5 (rev 9) • 21-000403-MP-32C Subdivision Plan & Ecological Overlay Sheet 3 of 5 (rev 9) • 21-000403-MP-32F Building Envelopes Plan & Trees Plan Sheet 4 of 5 (rev 8) • 21-000403-MP-32F Building Envelopes Plan & Trees Plan Sheet 5 of 5 (rev 8) | Up to 1 September 2025 | | 2. | Arboricultural Impact Assessment Report prepared by Tree Survey (v9) a) Appendix I - Tree Data b) Appendix II - Arboricultural Impact Assessment Drawings c) Appendix III - Tree Protection Plan Drawings | 3 September 2025 | | 3. | Amended Civil Engineering plans prepared by Egis • 000 – Cover Sheet (Rev 1) • 001 – General Arrangement Plan (Rev 1) • 002 – Sheet Layout Plan (Rev 1) • 003 – General Notes and Legend (Rev 1) • 004 – Demolition Plan (Rev 2) • 101 – Sediment Basin Catchment Plan (Rev 1) • 102 – Soil & Water Management Plan (Rev 2) • 201 – Site Regrading Plan (Rev 2) • 202 – Site Sections Sheet 01 of 02 (Rev 1) • 203 – Site Sections Sheet 02 of 02 (Rev 1) • 301 – Engineering Plan – Sheet 01 of 03 (Rev 2) • 302 – Engineering Plan – Sheet 02 of 03 (Rev 2) • 303 – Engineering Plan – Sheet 03 of 03 (Rev 3) • 401 – Longitudinal Sections Road No. 01 (Rev 1) • 402 – Longitudinal & Typical Sections Road No. 01 (Cont) & Road No.02 (Rev 1) • 403 – Longitudinal & Typical Sections Road No. 06 (Rev 1) • 404 – Longitudinal & Typical Sections Road No. 07 (Rev 1) • 850 – Basin No.01 Plan & Details (Rev 0) • 851 – Basin No.02 Plan & Details (Rev 1) • 852 – Catchment Plan (Rev 1) • 853 – Sandstone Logwall, Blockwall & Grassed Roadside Swale Details (Rev 1) | Up to 28 August 2025 | | 4. | Amended Landscape Plans prepared by Site Image • L-000 – Cover Sheet (Rev G) • L-001 – Tree Canopy Coverage Plan (Rev E) • L-100 – Site Plan (Rev I) • L-101 – Landscape Plan 1 of 4 (Rev G) • L-102 – Landscape Plan 2 of 4 (Rev H) • L-103 – Landscape Plan 3 of 4 (Rev H) • L-104 – Landscape Plan 4 of 4 (Rev I) • L-105 – Landscape Bio Basin 1 (Rev A) • L-106 – Landscape Bio Basin 2 (Rev G) • L-107 – Community Park (Rev G) • L-500 – Landscape Specification Notes and Street Tree Sections (Rev D) • L-501 – Landscape Detail (Rev D) • L-502 – Landscape Typical Road Sections (Rev H) | 28 Augst 2025 | | 5. | Addendum to Statement of Environmental Effects prepared by GLN Planning | 27 August 2025 | | 6. | Draft Community Management Statement | • | | 7. | Addendum to Integrated Water Cycle Stormwater Management Report prepared by Egis | 2 September 2025 | | 8. | Site-specific Vegetation Management Plan (Lot 28) prepared by GHD | 3 September 2025 | | 9. | Site-specific Vegetation Management Plan (Lot 27) prepared by GHD | 3 September 2025 | | 10. | Site-specific Vegetation Management Plan (Lot 2) prepared by GHD | 3 September 2025 | | 11. | Biodiversity Development Assessment Report prepared by GHD | 13 November 2025 | | 12. | Vegetation Management Plan prepared by GHD | 26 Augst 2025 |
The Court orders that:
The appeal is upheld.
The Applicant is to pay the Respondent’s reasonable costs ‘thrown away’ in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as a result of the amendment to the development application as agreed or assessed
Development Application No. SF10921 for the following development on the land at Inyadda Drive, Manyana known as Lot 2 DP 1161638; Lot 106 DP 755923 and Sunset Strip, Manyana known as Lot 2 DP 1121854 is determined by granting consent subject to the conditions in Annexure A:
Subdivision of land into:
42-Lot Community Title subdivision under the Community Land Development Act 2021 comprising:
Lot 1 Community Property, comprising a conservation zone for land to be protected, managed and restored, a community park, stormwater infrastructure and roads.
Lots 2-42 Community Title residential lots
1 Torrens Title lot (lot 43) for Open Space (intended for dedication to Council).
Subdivision works including:
**********
Heir Asquith Pty Ltd
Shoalhaven City Council [2025] NSWLEC 1809