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[2026] NSWLEC 1446
General information, not legal advice.
Land and Environment Court (NSW)
2026-07-23
Targett C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: HSEM Management Pty Ltd, Urusoglu v Penrith City Council [2026] NSWLEC 1446
Hearing dates: 20- 23 April 2026
Date of orders: 23 July 2026
Decision date: 23 July 2026
Jurisdiction: Class 1
Before: Targett C
Decision: Proceedings 2024/477587
The Court orders that:
(1) The appeal is upheld.
(2) The Development Control Order dated 11 December 2024 concerning the land located at 1 Water Street Wallacia is revoked pursuant to s 8.18(4)(a) of the Environmental Planning and Assessment Act 1979 (NSW).
(3) Exhibits are returned except for Ex A, B, C, D, G, K, M, 2, 3, 4, 5, 6, 7 and 8.
Proceedings 2024/466886
The Court orders that:
(1) The appeal is upheld.
(2) The respondent is directed pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979 (NSW), to issue a Building Information Certificate in relation to Shed 1 in accordance with BC24/0082 on land legally identified as Lot 4 in Deposited Plan 718232 and known as 1 Water Street, Wallacia, within 7 days of the date of these orders.
(3) Exhibits are returned except for Ex A, B, C, D, G, K, M, 2, 3, 4, 5, 6, 7 and 8.
Proceedings 2025/29654
The Court orders that:
(1) The appeal is upheld.
(2) The respondent is directed pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979 (NSW), to issue a Building Information Certificate in relation to Shed 2 in accordance with BC24/0094 on land legally identified as Lot 4 in Deposited Plan 718232 and known as 1 Water Street, Wallacia, within 7 days of the date of these orders.
(3) Exhibits are returned except for Ex A, B, C, D, G, K, M, 2, 3, 4, 5, 6, 7 and 8.
Proceedings 2025/414471
The Court orders that:
(1) The appeal is upheld.
(2) Development Application No DA25/0656, as amended, in respect of Shed 1 on land legally identified as Lot 4 in Deposited Plan 718232 and known as 1 Water Street, Wallacia, is determined by the grant of consent subject to the conditions at Annexure A.
(3) Exhibits are returned except for Ex A, B, C, D, G, K, M, 2, 3, 4, 5, 6, 7 and 8.
Proceedings 2025/414483
The Court orders that:
(1) The appeal is upheld.
(2) Development Application DA25/0657, as amended, in respect of Shed 2 on land legally identified as Lot 4 in Deposited Plan 718232 and known as 1 Water Street, Wallacia, is determined by the grant of consent subject to the conditions at Annexure B.
(3) Exhibits are returned except for Ex A, B, C, D, G, K, M, 2, 3, 4, 5, 6, 7 and 8.
Catchwords: DEVELOPMENT APPLICATION — use and ancillary works — orders
BUILDING INFORMATION CERTIFICATE — sheds — orders
DEVELOPMENT CONTROL ORDER — unlawful construction of sheds — orders
Legislation Cited: Biodiversity Conservation Act 2016 (NSW), ss 6.3A, 6.12, 6.15, 7.2, 7.4, 7.7, Pt 7
Environmental Planning and Assessment Act 1979 (NSW), Pt 1, ss 4.14, 4.15, 4.16, 4.17, 6.25, 8.7, 8.10, 8.14, 8.18, 8.25, 9.34, Sch 5
Land and Environment Court Act 1979 (NSW), ss 17, 34AA, 39
Biodiversity Conservation Regulation 2017 (NSW), cll 6.1, 7.1, 7.3, Pt 7
Penrith Local Environmental Plan 2010, cll 5.21, 7.1, 7.3, 7.4, 7.5, 7.6, 7.7, 7.18
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6
State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6
Texts Cited: NSW Rural Fire Service, Planning For Bush Fire Protection (November 2019)
Penrith Development Control Plan 2014
Category: Principal judgment
Parties: In 2024/477587:
HSEM Management Pty Limited (Applicant)
Penrith City Council (Respondent)
In 2024/466886, 2025/29654, 2025/414471 and 2025/414483:
Michael Urusoglu (Applicant)
Penrith City Council (Respondent)
Representation: Counsel:
M Wright SC (Applicants)
H Grace (Respondent)
Solicitors:
Storey & Gough Lawyers (Applicants)
Sparke Helmore Lawyers (Respondent)
File Number(s): 2024/477587, 2024/466886, 2025/29654, 2025/414471, and 2025/414483
Publication restriction: Nil
This judgment deals with the following five appeals:
Proceedings 2024/477587 (DCO Proceedings) – an appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the Development Control Order (Order) issued by the respondent under s 9.34 and Part 1 of Sch 5 of the EPA Act to HSEM Management Pty Limited (HSEM) dated 11 December 2024, requiring HSEM to relevantly cease constructing and demolish the building comprising a shed and awning structure (hereafter referred to as “Shed 1”) on land identified as Lot 4 in Deposited Plan 718232, known as 1 Water Street Wallacia (Subject Land).
Proceedings 2024/466886 (Shed 1 BIC Proceedings) – an appeal pursuant to s 8.25(1) of the EPA Act against the refusal of Building Information Certificate (BIC) Application BC24/0082 (Shed 1 BIC Application), being an application by Mr Michael Urusoglu in the Shed 1 BIC Proceedings to regularise Shed 1.
Proceedings 2025/29654 (Shed 2 BIC Proceedings) – an appeal pursuant to s 8.25(1) of the EPA Act against the refusal of BIC Application BC24/0094 (Shed 2 BIC Application), being an application by Mr Urusoglu in the Shed 2 BIC Proceedings to regularise the structure (hereafter referred to as “Shed 2”).
Proceedings 2025/414471 (Shed 1 DA Proceedings) - an appeal pursuant to s 8.7 of the EPA Act by Mr Urusoglu against the refusal of Development Application No. DA25/0656 (Shed 1 DA) seeking consent for:
(a) the use of Shed 1 for the purpose of storing equipment associated with the Subject Land’s residential use; (b) the use of fill and hardstand areas for purposes ancillary to the existing residential use of the Subject Land; (c) internal works to Shed 1; and (d) ancillary works including earthworks, stormwater works, sealing of an internal driveway, tree removal and landscaping.
(a) the use of Shed 2 for an internal recreational area (basketball and pickleball) associated with the Subject Land’s residential use; (b) the use of fill and hardstand areas for purposes ancillary to the existing residential use of the Subject Land; (c) internal works to Shed 2; and (d) ancillary works including earthworks, stormwater works, sealing of an internal driveway, tree removal and landscaping.
The following background is informed by the various Statements of Facts and Contentions and Statements of Facts and Contentions in Reply filed by the parties in the five proceedings (see Ex 1, tabs 1-8):
Shed 1 was constructed between July and September 2024 and has dimensions of 36.5 m x 34.6 m, with a ridge height of 8.02 m from the finished floor level. Shed 1 is setback approximately 9.04 m from the southern site boundary.
Shed 2 was constructed between September and November 2024 and has dimensions of 36.5 m x 18.6 m, with a ridge height of 8.04 m from the finished floor level. Shed 2 is setback approximately 53.5 m from the southern site boundary.
It is not disputed that Shed 1 and Shed 2 were built without development consent and that multiple trees were removed in the location of the sheds.
An image depicting the Subject Land and Sheds 1 and 2 is extracted below (Statement of Facts and Contentions filed by the respondent on 5 December 2025 in the Shed 2 DA Proceedings (Shed 2 DA SOFAC) (Ex 1, tab 8):
It is noted that the relevant sheds are depicted in the southwestern portion of the Subject Land, with Shed 1 located to the left of Shed 2.
Following observations by Council officers of construction works occurring on the Subject Land in respect of Shed 1, on 26 September 2024, a Notice of Intention to Serve an Order was issued to HSEM (Notice).
On 11 October 2024, the respondent received representations from HSEM in response to the Notice.
On 14 October 2024, the Shed 1 BIC Application was lodged with the respondent.
On 22 November 2025, the Shed 2 BIC Application was lodged with the respondent.
On 3 December 2025, the respondent refused the Shed 1 BIC Application.
On 11 December 2024, the Order was issued to HSEM.
On 16 December 2024, Mr Urusoglu commenced the Shed 1 BIC Proceedings, being within the time period specified in s 8.25(2) of the EPA Act.
On 18 December 2025, the Shed 2 BIC Application was determined by the respondent by way of refusal.
On 23 December 2024, HSEM commenced the DCO Proceedings, being with the time period specified in s 8.18(3) of the EPA Act.
On 23 January 2025, Mr Urusoglu commenced the Shed 2 BIC Proceedings, being within the time period specified in s 8.25(2) of the EPA Act.
On 22 August, Mr Urusoglu lodged the:
(a) Shed 1 DA (entered into the respondent’s system on 25 August 2025); and (b) Shed 2 DA (entered into the respondent’s system on 25 August 2025).
Between 3 and 16 September 2025, the Shed 1 DA and Shed 2 DA were advertised and notified. One submission was received objecting to the Shed 1 DA. No submissions were received in respect of the Shed 2 DA.
On 29 October 2025, the Shed 1 DA and Shed 2 DA were determined by the respondent by way of refusal.
On 28 October 2025, Mr Urusoglu commenced the Shed 1 DA Proceedings and Shed 2 DA Proceedings, being within the time period specified by s 8.10 of the EPA Act.
Where appropriate, in this judgment:
HSEM and Mr Urusoglu will be collectively referred to as the applicants;
Shed 1 and Shed 2 will collectively be referred to as the Sheds;
the Shed 1 DA and Shed 2 DA will be collectively referred to as the Shed DAs;
the Shed 1 DA Proceedings and Shed 2 DA Proceedings will be collectively referred to as the DA Proceedings;
the Shed 1 BIC Application and the Shed 2 BIC Application will be collectively referred to as the BIC Applications; and
the Shed 1 BIC Proceedings and Shed 2 BIC Proceedings will be collectively referred to as the BIC Proceedings.
Due to the interrelated nature of the five proceedings and the fact that the DA Proceedings were characterised as residential appeals, the Court made orders on 19 December 2025 that the matters were to be dealt with as follows:
the DA Proceedings are listed for conciliation and hearing forthwith if agreement cannot be reached under s 34AA of the LEC Act on 21-23 April 2026;
the DCO Proceedings and BIC Proceedings are set down for hearing on 21-23 April 2026; and
the five proceedings are to be heard together.
As agreement could not be reached during conciliation, the conciliation conference was terminated, and the five matters proceeded to hearing.
On 21 April 2026, I made orders that the five proceedings be heard concurrently and that evidence in one be evidence in the other.
As outlined in the Statement of Facts and Contentions filed in the DCO Proceedings (DCO SOFAC) (Ex1, tab 3):
The Subject Land is approximately 10.17 ha in area and zoned C2 Environmental Conservation and C3 Environmental Management under the Penrith Local Environmental Plan 2010 (PLEP).
The Subject Land is owned by HSEM and HSEM provided its consent to the lodgement of the BIC Applications and Shed DAs in these matters (see Ex D, tab 13, Ex G, tab 13, Ex A, tab 3, Ex B, tab 3 and Ex J).
Existing on the Subject Land is a dwelling house and shed-like buildings that are variously located in the centre of the Subject Land and along the southwestern side boundary. The Subject Land had historically been used for rural residential purposes.
The Subject Land is vegetated along its boundaries and along Jerry’s Creek which runs along the Eastern front boundary, through the eastern half of the Subject Land and along the norther side boundary where it feeds to the Nepean River bordering the Subject Land to the west. Mulgoa Road borders the subject Land to the east.
The Subject Land is mapped as having biodiversity values pursuant to Pt 7 of the Biodiversity Conservation Regulation 2017 (NSW) (BC Regulation).
The Subject Land is affected by overland flows from the site itself and local upstream catchments, and overbank flows from the Nepean River. In the regional 1% Annual Exceedance Probability (AEP) flood event, the Subject Land and Surrounding properties are completely submerged up to a level of approximately 46.2 m AHD and are classified as a high hazard area under the Hawkesbury-Nepean River Flood Study, NSW RA 2024 in the 1% AEP event due to the depth of flows.
During the hearing, the applicant was granted leave to amend the Shed DAs to rely on:
Updated Civil Engineering Plans prepared by Martens (which became Ex E in the proceedings);
Updated Landscape Plan dated 16 April 2026 (which became Ex F in the proceedings);
On-site Wastewater Management Scheme prepared by Martens and Associates dated 13 March 2026 (annexed to the Joint Expert Report of the Wastewater Experts – which became Ex 9 in the proceedings);
Biodiversity Development Assessment Report prepared by SLR dated 31 March 2026 (BDAR) (annexed to the Joint Expert Report of the Ecology Experts – which became Ex 6 in the proceedings);
Technical Note prepared by Martens dated 29 October 2025 (annexed to the Joint Expert Report of the Flooding Experts – which became Ex 2 in the proceedings);
Updated Civil Plans prepared by Martens Rev G (which became Ex K in the proceedings); and
Updated Preliminary Site Investigation prepared by Martens dated April 2026 (PSI) (which became Ex L in the proceedings).
For completeness, these amendments included excluding the following documents from the:
Class 1 Application for the Shed 1 DA: Tabs 2, 5, 7 and 11; and
Class 1 Application for the Shed 2 DA: Tabs 2, 5, 7 and 11.
The Shed DAs, as amended during the hearing, comprise the Amended Shed 1 DA and Amended Shed 2 DA, respectively (and collectively, the Amended Shed DAs).
The key issues at hearing can be distilled as follows:
What are the proposed uses of the Sheds and are these uses permissible?
Can conditions of consent relating to offsets for past unlawful clearing be imposed in relation to the Shed DAs as a matter of law?
Are the Sheds acceptable having regard to biodiversity and arboricultural matters?
Are the Sheds acceptable having regard to bulk and scale and consistency with desired future and existing character?
Should the Sheds be approved (through both the development application and BIC application process) having regard to flooding matters?
I note that it was agreed contentions regarding wastewater were resolved by the end of the hearing and not pressed.
For the reasons that follow, I have determined to uphold all five appeals.
As set out at [3(17)] above, the Shed DAs were publicly advertised between 3 and 16 September 2025. One submission was received objecting to the Shed 1 DA. No submissions were received in respect of the Shed 2 DA.
The concerns raised in the submission regarding the Shed 1 DA included the Construction Management Plan, construction traffic, noise and vibration and air quality. I am satisfied that this submission has been taken into consideration in the assessment and determination of the Shed 1 DA.
The applicants rely on the evidence of Dr Daniel Martens (flooding, structural engineering and wastewater), Mr Scott Bariwck (town planning), Dr David Robertson (ecology), and Mr Peter Castor (arborist).
The respondent relies on the evidence of Mr David England (flooding and structural engineering), Mr Ross Kerkham (town planning), Ms Danielle Adams-Bennett (ecology), Ms Donna Montgomery (arborist) and Ms Lisa Hughes (wastewater).
The following joint reports were filed and tendered during the hearing:
Joint Expert Report of the Flooding and Structural Engineers in the DCO Proceedings and BIC Proceedings filed 3 November 2025 (Joint DCO/BICs Flooding Report) (Ex 2);
Joint Expert Report of the Ecologists in the DCO Proceedings and BIC Proceedings filed 20 October 2025 (Joint DCO/BICs Ecology Report) (Ex 3);
Joint Expert Report of the Town Planners in the DCO Proceedings and BIC Proceedings filed 21 October 2025 (Joint DCO/BICs Planning Report) (Ex 4);
Joint Expert Report of the Arborists in the DA Proceedings filed 31 March 2026 (Joint DA Arborist Report) (Ex 5);
Joint Expert Report of the Ecologists in the DA Proceedings filed 2 April 2026 (Joint DA Ecology Report) (Ex 6);
Joint Expert Report of the Flooding Engineers in the DA Proceedings filed 30 March 2026 (Joint DA Flooding Report) (Ex 7);
Joint Expert Report of the Town Planners in the DA Proceedings filed 19 March 2026 (Joint DA Planning Report) (Ex 8); and
Joint Expert Report of the Wastewater Experts in the DA Proceedings filed 18 March 2026 (Joint DA Wastewater Report) (Ex 9).
In hearing the appeal, the Court re-exercises the functions of the Council in determining whether the order should be issued, consent should be granted, or BIC applications should be directed to be issued.
Section 39 of the LEC Act provides as follows:
39 Powers of Court on appeals
…
(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.
(1) In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
(2) The decision of the Court on an appeal under this Division is, for the purposes of this or any other Act or instrument, taken to be the final decision of that consent authority and is to be given effect to accordingly.
…
(1) General A consent authority is to determine a development application by-
(a) granting consent to the application, either unconditionally or subject to conditions, or
(b) refusing consent to the application.
(4) On hearing an appeal, the Court may:
(a) revoke the development control order; or
(b) modify the development control order; or
(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or
(d) find that the development control order is sufficiently complied with, or
(e) make such order with respect to compliance with the development control order as the Court thinks fit, or
(f) make such other order with respect to the development control order as the Court thinks fit.
(3) On hearing the appeal, the Court may do any one or more of the following—
(a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit,
(b) revoke, alter or confirm a notice to supply information,
(c) make any other order that it considers appropriate.
(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—
(a) the provisions of—
(i) any environmental planning instrument, and
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),
(v) (Repealed)
that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.
(1) A building information certificate is to be issued by a council only if it appears that—
(a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993—
(i) to order the building to be repaired, demolished, altered, added to or rebuilt, or
(ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or
(iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or
(b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.
(2) A building information certificate is a certificate that states that the council will not make an order or take proceedings referred to in subsections (3) and (4).
…
| | Column 1 | Column 2 | Column 3 | | | To do what? | When? | To whom? | | 2 | Stop Work Order To stop building work or subdivision work carried out in contravention of this Act | Building work or subdivision work is carried out— • in contravention of this Act, or • in a manner that would affect the support of adjoining premises. | • Owner of the land • Any person apparently engaged in the work | | 3 | Demolish Works Order To demolish or remove a building | A building— • requiring a planning approval is erected without approval, or • requiring approval under the Local Government Act 1993 is erected without approval, or • is or is likely to become a danger to the public, or • is so dilapidated that it is prejudicial to persons or property in the neighbourhood, or • is erected in contravention of this Act. | Owner of building or, if the building is situated wholly or partly in a public place, the person who erected the building |
As set out at [8] above, the Subject Land is zoned part C2 Environmental Conservation and part C3 Environmental Management under the PLEP. The parties agree and I accept that the Sheds are located on the C3 zoned land. It is noted that “dwelling houses” are permissible in C3 zoned land with consent.
I have had regard to the objectives of the C2 and C3 zone which are extracted below:
Zone C2 Environmental Conservation
1 Objectives of zone
• To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.
• To prevent development that could destroy, damage or otherwise have an adverse effect on those values.
• To protect, manage, restore and enhance the ecology, hydrology and scenic values of riparian corridors and waterways, wetlands, groundwater resources, biodiversity corridors, areas of remnant indigenous vegetation and dependent ecosystems.
• To allow for low impact passive recreational and ancillary land uses that are consistent with the retention of the natural ecological significance.
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 minimise conflict between land uses within the zone and land uses within adjoining zones.
• To ensure development is compatible with the environmental capabilities of the land and does not unreasonably increase the demand for public services or public facilities.
• To preserve and improve natural resources through appropriate land management practices.
The use of the Sheds is relevant to all five proceedings. If the use of the Sheds is prohibited in the C3 zone, development consent cannot be granted in respect of the use of the Sheds, and it subsequently follows that the BIC and DCO appeals should be dismissed. It is therefore important to consider the use of the Sheds and whether such use is permissible before turning to other jurisdictional and merit matters in these proceedings.
The proposed use of the Sheds is described in the respective Statement of Environmental Effects prepared by Martens dated August 2025 (Shed 1 SEE) (Ex D, tab 15 at p 10) and Statement of Environmental Effects prepared by Martens dated August 2025 (Shed 2 SEE) (Ex G, tab 15 at p 10). The relevant sections regarding use have been extracted below:
“Shed 1 SEE:
3.2 Use Description
The proposed use of Shed 1 will be for storage of equipment associated with the Site’s residential use. It is anticipated that areas of the shed are likely to be used in the following general ways. The below description is to be read in conjunction with the Architectural Plans (PopovBass, 2025):
1. Area 1 is anticipated to be used for storage of farm supplies, equipment, private boats and parking of trucks.
2. Area 2 is anticipated to be used for storage of private car collection.
3. Area 3 is anticipated to be used for storage of general farm and household items and metal work equipment.
4. Area under the attached awning is anticipated to be used as an outdoor seating area in connection with the Site’s dwelling house.
5. Area 4 and Area 5 (within the mezzanine level) are anticipated to be used for storage of general farm and household items.
Shed 2 SEE:
3.2 Use Description
The proposed use of Shed 2 will be for internal recreational area (basketball and pickleball) associated with the Site’s residential use.”
The permissibility of the Sheds was raised in the Statement of Facts and Contentions filed in the Shed 1 DA Proceedings (Shed 1 DA SOFAC) (Ex 1, tab 7) and Shed 2 DA SOFAC insofar as it was contented that permissibility “has not been established”.
The respondent’s contention regarding permissibility as articulated in the Shed 1 DA SOFAC has been extracted in respect of the Shed 1 DA below:
“2 The permissibility of the proposed use of Shed 1 within the C3 Environmental Management zoned land under the PLEP, has not been established.
Particulars:
(a) Clause 2.3(1) of the PLEP specifies for each zone, the objectives for development, the development that may be carried out without development consent, only with development consent and development that is prohibited.
(b) The submitted BCA Report refers to Building Code of Australian 2022 (BCA) and has classified Shed 1 as a Class 7b building. A Class 7b building is a building which is for storage or display of goods or produce for sale by wholesale, which would be akin to use for the purposes of a “warehouse” or “distribution centre” both of which uses are prohibited in the C3 zone.
(c) A shed that is associated with a rural dwelling should be classified as a Class 10a building under the BCA. A Class 10a building is a non-habitable building including a private garage, carport, shed or the like. Therefore, the intended use of the Site and related building classification of Shed 1 is unclear.
(d) Penrith Development Control Plan (2014) DA- Rural Land Uses, Part 1.3 Farm Buildings provides that unless specifically stated, the controls for farm buildings also apply to all sheds and outbuildings that are ancillary to any permissible use of rural land (specific to the relevant zone), whether or not that use is considered an agricultural use.
(e) Therefore, the intended use of the Site and the related building classification of the Shed is unclear (noting Class 7b buildings are prohibited in the C3 zoning).”
The contention that permissibility has not been established is respect of Shed 2 is largely the same in the Shed 2 DA SOFAC, save that the relevant BCA Report in the Shed 2 DA refers to Shed 2 as a Class 9b building under the BCA.
The town planners address permissibility of the Sheds in the Joint Sheds DA Planning Report. In respect of Shed 1, the experts relevantly agree as follows (Ex 8, at pp 4-5):
“1. …
2. The experts agree that building classes in the BCA are of no relevance to the consideration of the permissibility of a proposed land use.
3. …
4. …
5. …
6. The proposed land use is ancillary to the residential and agricultural use of the land.”
“RK considers permissibility to be a key consideration of this proceeding due to the overall size of the shed and the accumulated size of the various other sheds on site. The size and accumulated floor areas of the shed/s is not consistent with the Controls of Penrith City Council’s Development Control Plan 2014 in assessing its proposed ancillary use to the existing residential use of the site.”
“I am of the opinion that there is no land use permissibility hurdle that arises and note that provisions in a development control plan, like the BCA, have no relevance to the consideration of land use permissibility.”
“The experts agree that for similar reasons as set out in the response to Contention 2 of the Shed 1 appeal, the building classification under the BCA has no role in determining land use permissibility.
The experts agree and note that the use of shed 2 is for internal recreation use associated with the residential dwelling land use on the site. The application has not sought and does not propose use of the court for persons not associated with the dwelling house. The use is ancillary to the existing residential use on the land and consent is able to be granted if the Court as consent authority reaches a conclusion of satisfaction on the flooding and environmental impact considerations.”
Mr Kerkham goes on to repeat his statement regarding permissibility (extracted above at [38]) in respect of Shed 2 at par 33 of the Joint DA Planning Report.
Mr Barwick states at par 32:
“Permissibility of the proposed use of shed 2 is agreed as being ancillary to the dwelling on the land. Any assessment under Council’s DCP or the BCA does not impact upon a consideration of land use permissibility. The considerations of the DCP substantially relate to built form and design and in the circumstances of this application, shed 2 exists and land use of the existing structures is sought…”
Despite the concessions made in the Joint DA Planning Report, the respondent maintained its contention at the hearing that the permissibility of the Sheds has not been established. In fact, the respondent took this argument further, contending that the proposed use of the Sheds is not permissible under the statutory framework.
In respect of Shed 1, the respondent submits that the town planners’ agreement that the “proposed land use is ancillary to the residential and extensive agricultural use of the land” is flawed for the following reasons:
The description of the use of Shed 1 in the Shed 1 SEE and Architectural plans for Shed 1 indicate that the use of Shed 1 would not be ancillary to the use of the Subject Land for the purpose of a dwelling house. The anticipated uses are described in vague terms, and the boundaries of the areas are not clearly defined.
There is no extensive agricultural use of the land. The proposed development cannot be ancillary to a non-existent use.
The respondent relies on the principles espoused in Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400 (Chamwell), Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157, and Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 (at RWS par 19), including “in planning law, use must be for a purpose” and “the purpose is the end to which land is seen to serve” (Chamwell at [28]).
The respondent submits that it is irrelevant what the applicant has written in its development application. The question of characterisation is one for the Court, and the applicants cannot recite themselves into permissibility.
The respondent goes on to submit (T 23 April 2026 p 157 line 10-15):
“We say that when regard is had to the size of the shed simpliciter, being shed 1 being over 1350 metres square, and the fact that there is an existing shed that could be used on site, and that relative to the dwelling it is over twice the size, and approximately double the size of what would be permissible in a DCP, in a common sense assessment of what is that shed being used for, it's not being used as something that's ancillary to a dwelling house.”
The respondent takes issue with what was observed to be stored in Shed 1 (including the size and number of trucks, farm supplies and equipment when the Subject Land is not used as a farm, and metal working equipment which has not been established to be related to the residential use of the Subject Land) as well as the fact that the Subject Land is owned by HSEM, being a corporation. The respondent submits that “on the Council’s case, it would be sufficient just to have regard to the size and scale” to find that Shed 1 was not ancillary to a residential use (T 23 April 2026 p 159 line 11-13).
To the extent that the Court finds that Mr Kerkham was of the view that Shed 1 was to be used for purposes ancillary to a residential use, the respondent resiles from that evidence and asks the Court not to accept the joint position of the town planners (T 23 April 2026 p 159 line 27-30).
In respect of Shed 2, the respondent submits that its proper characterisation is as a “recreation facility indoor”, being an independent standalone use that is not subordinate to the residential use of the Subject Land. The respondent “places emphasis on the size and scale of Shed 2 compared to the dwelling house… reinforced by the proposed inclusion of three bathrooms in Shed 2, in addition to the bathrooms that presumably are in the dwelling house, and in addition to the bathroom that’s already in Shed 1, and in the absence of any explanation of why so many bathrooms are needed for something that’s said to be ancillary to a dwelling house” (T 23 April 2026 p 158 line 24-32).
In respect of Shed 1, the applicants submit that the development application does not seek consent to carry out a commercial activity within Shed 1 and there is no inherent characteristic of the structure that would lead the Court to conclude that it will be used for anything but for the storage of items used in association with the residential use of the Subject Land.
The applicants rely on the description of the proposed use of Shed 1 as set out in the Shed 1 SEE and submits that (AWS at pars 75-76):
“[75] … On a property of this size (10,17 hectares), it is common for such items to be stored on the land in the open or in sheds and indeed given the flooding of the land, internal storage is essential. The storage of these items would not amount to an independent use.
[76] As to the carts and boats, these are items from [sic] a collection that is stored as a hobby of the occupant. This is hardly an unusual circumstance for persons who reside on large lot residential/rural properties… The use of the Property to store a car collection and boats is ancillary to the dominant residential purpose occurring on the land. In Houblos v Penrith City Council [2025] NSWLEC 1290 at [19], Dixon SC accepted that the storage of 20 vehicles within a shed was an ancillary use to that property’s residential use. The number of vehicles under this application is not dissimilar.
[77] Finally as to the storage of trucks, there is nothing inherent in the nature of a truck or trucks that would preclude storage of them from being ancillary to the residential use of the land. The storage of trucks in rural areas by the occupants of the dwellings is not uncommon. Indeed the respondent’s own planning instrument acknowledges there is a need for occupants to park trucks on land zoned C3 by providing for a category of exempt development for such a purpose: see cl 3.1 and Schedule 2 of the PLEP.”
The applicants rely on the agreed written position of the town planners in the Joint DA Planning Report that the proposed use of Shed 1 is ancillary to the residential use of the land and contends that Mr Kerkham gave no cogent reason for the sudden change in his view. To this end, the applicants submit that the respondent is bound by the matters raised in its contentions and should not be permitted to “ambush the applicant with this late raised submission” (AWS at pars 66-67). In any event, the applicants submit that there is sufficient evidence before the Court to be satisfied that the proposed use of Shed 1 is permissible by virtue of it being ancillary to the dominant residential use of the Subject Land.
In respect of Shed 2, the applicants similarly rely on the description of the proposed use set out in the Shed 2 SEE and agreed written position of the town planners (Ex 8, p 12) that:
“The proposed use of Shed 2 is for internal recreation use associated with the residential dwelling land use on the site. The application has not sought and does not propose use of the court for persons not associated with the dwelling house.”
The applicants submit that Shed 2 provides a recreation area for the occupants of the two dwellings and is subordinate to the residential use of the Subject Land. The applicants go on to state that “the proposed used of Shed 2 is no different than other residential properties that contain a tennis court or [sic] a swimming pool” (AWS at par 72).
The applicants similarly submit that the Court has sufficient evidence before it to be satisfied that the proposed use of Shed 2 is permissible by virtue of it being ancillary to the dominant residential use of the Subject Land.
The contention regarding the permissibility of the Sheds appears to have evolved from the drafting of the Shed 1 and Shed 2 DA SOFACs to the preparation of expert evidence, to the close of legal submissions at hearing.
Turning first to Shed 1, although the concept of permissibility was raised in the Shed 1 DA SOFAC, I note that the particulars make clear that the concern relates to the BCA classifications and permissibility not being established, rather than expressly pleading that the proposed use of Shed 1 is prohibited or not ancillary to the existing residential use of the Subject Land.
I agree with the town planners and the submission of the applicants that the BCA is irrelevant to the task of characterising use in planning law.
The experts in the Joint Sheds DA Planning Report expressly agree that Shed 1 is ancillary to “the residential and agricultural use of the land”. Whilst permissibility is a legal question, and the statement regarding the agricultural use of the land is clearly erroneous, it is still relevant to note that both town planners considered Shed 1 to be ancillary to the residential use of the Subject Land at the time of preparing the Joint DA Planning Report having the benefit of the Shed 1 SEE, architectural plans depicting the size and scale etc of Shed 1, and site inspections.
To the extent that Mr Kerkham stated for the first time in the hearing during oral evidence that he now had a “different opinion” about the use of Shed 1 (T 22 April 2026 p 49 line 16-27) due to the site view on the first day of the hearing, I have not given this any material weight. This is because Mr Kerkham:
Had attended the Subject Land and Shed 1 on previous occasions.
Conceded that he did not provide any qualifications in the Joint DA Planning Report regarding his views or that they were subject to a further site inspection, and further, did not request another site inspection to facilitate the preparation or finalisation of the Joint Sheds DA Planning Report.
Provided only one apparent reason for the change in his opinion in oral evidence, being “based on the size of the shed, I believe there is an issue in regards to the potential use of that site” (T 22 April 2026 p 63 line 1-12). The size of Shed 1 is a fact which has been known from the commencement of all five proceedings, and which has not changed.
It is not disputed that there is a present residential use of the Subject Land. The applicant has stated the proposed use of Shed 1 in the Shed 1 SEE and Class 1 Application generally. What could be observed inside Shed 1 at the site view on the first day of the hearing was generally consistent with the scope of uses set out in the Shed 1 SEE, including the storage of farm supplies, equipment and trucks. To this end, I accept the applicants’ submission that the Subject Land is a large rural style property with significant lawns and trees. It is not unreasonable to expect the storage of farm supplies and equipment even in the absence of a commercial agricultural enterprise. There is no evidence to suggest that the trucks, boats and cars etc did not, and would not, relate to the residential occupiers of the Subject Land.
Further, condition 58 of the Agreed Conditions relevantly provides that:
“58 The shed shall not be used under any circumstances for any commercial, industrial or habitable activity. The shed shall only be used for purposes in conjunction with the residential use of the Site or other lawful use.”
The respondent’s criticisms of the applicants’ case in terms of permissibility are largely based on an asserted lack of evidence from the applicants that all of the objects being stored in Shed 1, including the trucks and metal working equipment etc, were being used or would be used by the occupiers of the dwellings on the Subject Land. This submission was not squarely raised in the Shed 1 DA SOFAC and was only raised in these terms for the first time in the hearing.
I am satisfied that there is enough evidence before the Court, namely the Shed 1 SEE, architectural plans in the Shed 1 DA Proceedings, and my own observations at the site view, to conclude that Shed 1 is proposed to be used for purposes ancillary to the residential use of the Subject Land. I reject the respondent’s argument that the applicants need to provide further evidence that the items being used and stored in Shed 1 belong to the residential occupiers of the Subject Land. This is also in circumstances where the applicants were not on notice of this alleged deficiency in their case until the hearing and did not have adequate time to collate such evidence, and condition 58 of the agreed conditions provides further certainty that Shed 1 will be used for purposes in conjunction with the residential use or other lawful use of the Subject Land.
I therefore find that the proposed use of Shed 1 is ancillary to the residential use of the Subject Land and therefore permissible under the PLEP.
With respect to Shed 2, I reject the respondent’s assertion that Shed 2 is for the purpose of an indoor recreation facility. The size of Shed 2 and proposed number of bathrooms does not, without more, establish an indoor recreation facility use. On balance, I am similarly satisfied that the Shed 2 SEE and Shed 2 DA generally provide adequate evidence as to the proposed use of Shed 2 as being ancillary to the existing residential use of the Subject Land.
In order to consider this question, it is helpful to set out the legislative framework relating to biodiversity and offsets specifically.
Relevant to these proceedings, pursuant to s 7.2(1)(b) of the Biodiversity Conservation Act 2016 (NSW) (BC Act), development is likely to significantly affect threatened specifies if the development exceeds the biodiversity offsets scheme threshold.
Section 7.4 of the BC Act relevantly provides that proposed development exceeds the biodiversity offsets scheme threshold for the purposes of this Part if it is development of an extent or kind that the regulations declare to be development that exceeds the threshold.
Clause 7.1(1)(b) of the BC Regulation relevantly provides that proposed development exceeds the biodiversity offsets scheme threshold for the purposes of Pt 7 of the BC Act if it involves the clearing of native vegetation, or other action prescribed by cl 6.1, on land included on the Biodiversity Values Map published under cl 7.3.
It is undisputed that the Subject Land is identified as containing biodiversity values on the Biodiversity Values Map. It is also undisputed that the proposed development triggers the biodiversity offset scheme as the proposed stormwater infrastructure will result in the removal of trees and native vegetation located on the Biodiversity Values Map.
As a result of this, the Shed DAs are accompanied by a BDAR in accordance with s 7.7(2) of the BC Act.
I will now summarise the BDAR’s approach and findings as relied on by the applicants in these proceedings.
The BDAR provides the following project description:
“1.4.2 Project Overview
The project included the recent construction of two sheds involving the clearing of vegetation within the subject land. As the sheds were constructed without development consent, the two DA’s associated with the works are being prepared retrospectively to the beginning stages of the project and are also seeking use of the sheds with some physical internal and external works. The project will be for the following works:
● Removal of previously existing vegetation within the subject land prior to clearing for the project;
● Demolition of previously existing sheds and hard stands;
● Use of the two recently built sheds, hardstand areas and fill;
● Carrying out earthworks, stormwater drainage works, tree removal and landscaping within the previously cleared areas around the two constructed sheds and hardstand areas; and
● Physical internal works within the two sheds.”
The BDAR provides the layout of the project in Figure 5 (extracted below):
For completeness, I note that Figure 5 was superseded by the Soil and Water Management Plan prepared by Martens & Associates which became Ex K in the proceedings and which is extracted below:
The state of the Subject Land prior to the construction of the Sheds is stated to be as follows:
“1.4.4 General Description of the Subject Land
…
Currently, the subject land is predominantly cleared, with areas of mown grassland within the centre of the subject land, a small patch of remnant native vegetation in the north-east, and a row of planted native and exotic vegetation along the southern boundary. However, a review of aerial imagery along with photographs taken within the subject land prior to disturbance for the project, indicate that the subject land was comprised predominantly of planted native and exotic vegetation, along with patches of remnant native vegetation. The remnant native vegetation was identified to have conformed to PCT 4025 – Cumberland Red Gum Riverflat Forest.”
“The primary impact of the project is the removal of vegetation and associated threatened species habitat to facilitate the project. A total of 2.22 ha of land within the subject land has/will be directly impacted by the project. This includes 0.16ha of PCT 4025 that conforms to the TEC Riverflat Eucalyptus Forest and 0.25ha of Planted Native Vegetation that is not assigned to a PCT in accordance with the Streamlined assessment module – planted native vegetation of the BAM. The remaining areas of the subject land comprise approximately 0.19ha of Woody Exotic Vegetation, 1.56ha of Exotic Grassland and 0.06ha of cleared land.
The ecosystem credit liability for the project has been calculated as four (4) credits for PCT 4025. The species credit liability has been calculated as six (6) credits for the Swift Parrot (Lathamus discolor) and four (4) for the Southern Myotis (Myotis Macropus).
A suite of mitigation measures will be implanted for the project including weed management, delineation of clearing limits, pre-clearance surveys, clearing protocols and sedimentation control measures.
The project is consistent with the No Net Loss standard as impacts to biodiversity values will be mitigated where possible, and all residual impacts are to be offset by retirement of the required number of biodiversity credits. As such, the project is not considered to result in unacceptable direct, indirect or prescribed impacts on biodiversity.”
It is important to note here that the BDAR does not delineate between the offsets required for the previous clearing undertaken versus the proposed clearing, nor between the offsets relating to Shed 1 versus Shed 2.
For completeness, I note that it is not disputed that the BDAR:
Was prepared by a suitably accredited person or the purposes of s 6.12 of the BC Act who certifies that the BDAR was prepared on the basis of the requirements of (and information provided under) the biodiversity assessment method as of 31 March 2026 as required by s 6.15 of the BC Act.
Sets out in Pt 7 the measures that the proponent has taken to avoid, minimise and mitigate, respectively, the impacts of the proposed development on biodiversity values as required by s 6.12(c) of the BC Act.
Specifies the number of biodiversity credits that are required to be offset in accordance with s 6.12(d) of the BC Act.
The respondent submits that the clearing works carried out to date on the Subject Land to facilitate the construction of the Sheds have resulted in unacceptable impacts. It is these impacts, in addition to further proposed clearing the subject of the Amended Shed DAs, which the applicants are seeking to address largely by way of offsets conditioned through the grant of consent to the Shed DAs.
In closing submissions, the respondent states (T 23 April 2026 p 168 line 20-27):
“Then the question becomes, can that be fixed though by imposing the requirement for offsets to be made as part of the development application. Now, conditions can only be imposed in respect of the development that is the subject of the application. The credits that would need to be provided in respect of the impacts of clearing for the construction isn’t an impact that arises as a result of the development that is the subject of the applications that’s presently before you.”
“Now if there is a basis on which you could lawfully impose a condition requiring offsets in respect to development that was carried out previously in the current DAs, then that problem goes away. As far as I can tell, there’s no solution.”
Conversely, the applicants submits that there is no lack of power under s 4.15 of the EPA Act to impose a requirement to retire credits in accordance with a BDAR assessment. The applicants rely on three key reasons for this position.
Firstly, s 4.17 of the EPA Act sets out the power to impose conditions including by reference to matters referred in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the consent. The applicants submit that the power to impose the proposed conditions requiring offsets sits squarely within the bounds of ss 4.15 and 4.17 of the EPA Act. Namely, that the ongoing use of the Sheds as sought by the Amended Shed DAs has a clear nexus to the location of those Sheds and where trees may have been.
Secondly, it would produce an “absurd result” if the Court could not impose conditions that would remedy or address previous unlawful clearing.
Thirdly, there is a departmental understanding of the correct approach to biodiversity assessment in the event of past unlawful clearing. The applicants rely on the webpage entitled “Unlawful clearing and Biodiversity Development Assessment Reports” published by the NSW Department of Environment and Heritage (Ex M) (Unlawful Clearing and BDAR Guidance) which supports the applicants’ proposed approach.
I accept the applicants’ submissions that the Court has power to impose conditions of consent requiring the retiring of offsets in the circumstances of these proceedings for the reasons given by the applicants.
Section 4.17 of the EPA Act relevantly provides that:
4.17 Imposition of conditions
(1) Conditions – generally A condition of development consent may be imposed if –
(a) it relates to any matter referred to in section 4.15(1) of relevance to the development the subject of the consent, or
….
I am satisfied that the past unlawful clearing to facilitate the construction of the Sheds for which the present Amended Shed DAs seek consent to use and do further works in respect of, is a matter that relates to the significant likely impacts of that development, including environmental impacts on the natural environments under s 4.15(1)(b) of the EPA Act, and the public interest under s 4.15(1)(e) of the EPA Act. I consider that the manner in which the Sheds were constructed and the environment affected to facilitate that construction, is relevant to the consideration of the Sheds’ ongoing use. I further consider it to be within the public interest to consider these matters and require appropriate offsets.
The power to impose conditions in s 4.17 of the EPA Act is a broad one, and I am satisfied that there is a sufficient nexus between the Amended Shed DAs and the past unlawful clearing which facilitated the construction of those Sheds, to impose the proposed conditions of consent regarding the retiring of biodiversity credits in accordance with the BDAR.
Although not legally binding, the Unlawful Clearing and BDAR Guidance supports this interpretation and approach.
On the basis that I accept it is legally acceptable to impose conditions of consent regarding offsets generally, I must now consider whether, having regard to those offsets (in addition to other relevant matters), the Amended Shed DAs and BIC Applications may be approved having regard to matters of biodiversity and arboriculture.
Due to the separate but interrelated nature of the five proceedings before the Court, it is worth noting here that different matters are relevant to the different assessments before the Court.
As stated by the ecologists in the Joint DCO/BICs Ecology Report, the consideration of biodiversity and arboriculture in respect of the BIC Applications is “generally confined to the impacts of the constructed sheds and to be treated separately to any impacts from the original site preparation and importation of fill” (Ex 3, p 4).
Therefore, I have considered the impacts of the constructed Sheds in the assessment of whether the BIC Applications should be approved. This matter is also highly relevant to the Amended Shed DAs, although the impacts of the proposed works and use of the Sheds is also relevant to the Amended Shed DAs and has similarly been considered below. As set out above, I have also had regard to the trees removed to facilitate the construction of the Sheds as a matter of relevance under s 4.15(1)(b) and (e) of the EPA Act in respect of the Amended Shed DAs.
The Amended Shed DAs propose various stormwater and wastewater infrastructure works on the Subject Land. There appear to be two primary areas of relevance to the consideration of biodiversity and trees:
the bioretention and sediment basin infrastructure proposed to be located to the north-east of Shed 2 (Bioretention Works); and
the stormwater infrastructure proposed to be located to the south-east of Shed 1 (Stormwater Works).
Amendments made to the Sheds DAs during the hearing, namely the amendment of the proposed location of the Bioretention Works to avoid the Notional Root Zones (NRZs) of Trees 67A, 67, 68, 70, 71 and 72, has resolved Ms Adams Bennet’s concerns in respect of biodiversity impacts in that area (subject to appropriate conditions) (T 23 April 2026 p 137 line 43 - p 138 line 8).
Amendments were also made to the Stormwater Works (as shown on Ex K), which were explained by Mr Castor (T 22 April 2026 p 119 line 37 to p 120 line 12) to include the proposed:
removal of dead trees on the southern boundary;
deletion of a pit so that Tree 12 may be retained;
the swale east of Shed 1 down to the entrance on Water Street being diverted away from the trees to avoid the NRZs of all of the trees bar the Camphor Laurel Tree 43 down at the eastern end of the drive;
the pipe from the western end of the swale running past Shed 1 is now shown half a metre adjacent to Shed 1 and entering the pit to the west or southwest of Shed 1 resulting in all that piping which was originally in amongst the trees no longer being proposed in that location; and
the hatched area adjacent to the trees near Shed 1 which was where the fill was to be removed, has now been widened, and to capture that pit, it’s going to take water away to the west. The hatched area where the fill is to be removed coincides with all the dead trees so there’s basically no encroachment on any of trees (except for a little bit of encroachment on Trees 4 and 5 next door).
The key issue remaining in dispute as a result of the amendments to the proposed Bioretention Works and Stormwater Works is whether the proposed works will impact on the trees on the southern boundary of the Subject Land (adjacent to Shed 1) and if so, whether those impacts are acceptable. Both the ecologists and arborists gave evidence in relation to this issue, so I have considered their evidence together.
In respect of the Stormwater Works proposed on the southern boundary of the Subject Land, Ms Adams Bennett is of the view that “there will still be impacts to trees as a result of the swale, pits (and potentially the sealed road) constructed near the southern boundary” (Ex 6, at par 70). Ms Adams-Bennett’s view is further clarified as follows (Ex 6):
“[42] Based on the existing location of the sheds it is unknown if there is further capacity to locate the stormwater infrastructure (pits and swale) away from the trees along the boundary. Confirmation from the engineers would be needed to understand if there is scope for an alternative design.
[43] It is understood from the Respondents Engineering expert that the swale and pits could be constructed further away from the Notional Root Zone of the trees.
[44] No amended plans were provided during the preparation of this JER showing an alternative location for this.
[45] It is therefore my opinion that there is potential for the development to avoid or minimise impacts, however the application before the court does not reflect a development that has been designed to respond to the environmental constraints of the site where it has been identified by the experts that there are alternative locations to minimise impacts. Therefore, the development before the court has not made satisfactory efforts to avoid or minimise impacts on high biodiversity values as required by cl 6.3A of the BC Act. The amended plan showing the location of the sediment and bioretention basin is an attempt to avoid and minimise impacts. It is my opinion that there are further opportunities to avoid and minimise impacts.”
Ms Montgomery maintained that the largest matter that still arises despite the proposed amendments in Ex K is the intrusion into Tree 19. Ms Montgomery was of the view that the access way was “one of the main issues with the impacts to tree 19” (T 22 April 2026, p 121 line 19-20). Ms Montgomery’s other primary criticisms of the amendments in Ex K were that it still left some “questions” and further analysis was required in respect of Trees 4, 5 and 43.
Dr Robertson is of the view that the changes to the design and location of the Bioretention Works resolve all concerns regarding the trees in that location.
With respect to the Stormwater Works on the southern boundary, Dr Robertson appeared to be of the view that proposed amendment to the design of the Stormwater Works, prevention of vehicular access on the side path closest to the southern boundary, and careful monitoring would be enough to maintain the trees (T 23 April 2026 p 137 line 14-18 and T 23 April 2026 p 138 19-31).
Mr Castor was similarly of the view that the amendments to the Stormwater Works had resolved concerns regarding impacts on trees on the southern boundary subject to appropriate conditions. I have not given Mr Castor’s evidence regarding the construction of the access way along the southern boundary any weight due to the agreed conditions of consent which supersede this evidence.
Finally, with respect to Shed 2, Ms Adams-Bennett and Dr Robertson agreed that:
In relation to the DA Proceedings, the ecologists note that their response in relation to Shed 2 is the same as provided in respect of Shed 1 “as the proposed stormwater infrastructure [sic] is proposed to service both sheds” (Joint DA Ecology Report, Ex 6, at pp 22-26).
In relation to the DCO and BIC Proceedings:
(a) “Shed 2 (being the building itself) will not have a direct impact on biodiversity values including impact on flora and fauna but the impacts have occurred as a result of the works associated with the construction of the Shed” (Joint DCO/BICs Ecology Report, Ex 3, p 7); and (b) “The shed itself does not pose a barrier for connectivity for fauna especially for fauna as it is recognised there is room for fauna movement and passage between eh hardstand areas associated with the sheds and Jerrys Creek” (Joint DCO/BICs Ecology Report, Ex 3, p 11). (c) “The building itself is unlikely to cause acoustic impacts on fauna”. (d) Jerry’s Creek is identified as a 3rd order watercourse under the Penrith Development Control Plan 2014 (PDCP) which requires a 30 m vegetated riparian zone width on each side. Shed 2 has been constructed within 30 m of the top of the bank of Jerry’s Creek.
In Ms Adams-Bennett’s view, this means that the PDCP has not been complied with.
In Dr Robertson’s view, according to “the guidelines for riparian corridors, construction can occur in parts of the recommended corridors provided that sufficient riparian land exists on the property to “average”” and Dr Robertson believes “that the land is sufficiently wide to achieve this” (Ex 3, p 27). Dr Robertson further notes that the riparian vegetation on site is to be restored and managed in accordance with the Vegetation Restoration Plan prepared by Narla dated 2025 (VMP).
The respondent relies on the evidence of Ms Montgomery and Ms Adams-Bennett and provisions of the BC Act and PDCP to submit that the proposed development does not appropriately retain and protect trees and biodiversity on the Subject Land.
In terms of the merits of the retention and use of the Sheds, the respondent relies on the evidence of Ms Adams-Bennett to submit that the proposal will cause impacts to the trees near the southern boundary of the Subject Land and that this loss will result in the loss of potential habitat for a number of highly mobile threatened fauna species. The respondent submits that this is unacceptable in circumstances where the applicable regulatory framework under the BC Act operates on an avoid, mitigate and offset hierarchy.
The respondent also relies on the evidence of Ms Montgomery to submit that the arboricultural issues remain despite Ex K including the proposed encroachment on the NRZ of Tree 19 and lack of sufficient detail in the applications.
The respondent does not make any specific submissions in respect of Shed 2, however I note the agreement of the ecologists that, at least in respect of the DA Proceedings, their concerns are the same for Shed 2 as for Shed 1 due to the common stormwater infrastructure.
The respondent does not otherwise raise contentions regarding serious and irreversible impacts for the purposes of the BC Act and appears to accept that the proposed offsets are adequate in the circumstances in respect of the past unlawful clearing, provided they can be legally imposed as conditions of consent.
The applicants rely on the evidence of Dr Robertson and Mr Castor to submit that the amendments proposed in Ex K, in conjunction with appropriate conditions of consent, resolve all remaining contentions in respect of biodiversity and arboriculture.
In relation to the hierarchy of avoid, mitigate and offset in s 6.3A of the BC Act, the applicant submits that there has been a genuine attempt to avoid impacts on biodiversity values, and where impacts are unavoidable, measures have been taken to minimise such impacts. The applicants rely on the amendment of the Shed DAs to relocate the drainage detention basin to an area of the property that avoids the removal of trees as evidence of the attempts to avoid impacts.
With respect to Shed 2, the applicants rely on the evidence of Dr Robertson in the Joint DCO/BICs Ecology Report (Ex 3) that the proximity of Shed 2 to Jerry’s Creek is acceptable on the basis:
that there is sufficient riparian land on the property to allow for a riparian corridor having an average width of 30 m to be provided; and
that riparian areas of the Subject Land are to be restored and managed under the Restoration Vegetation Management Plan prepared by Narla Environmental which includes substantial planting both of mid storey and canopy plantings.
I note that the parties have provided agreed conditions in the event the Court is minded to approve the Shed DAs (Shed 1 Conditions and Shed 2 Conditions, respectively). The Shed 2 Conditions are almost identical to the Shed 1 Conditions (save for acknowledging the Shed 1 Conditions in certain circumstances to avoid duplication). For ease, I have referred to the Shed 1 Conditions below.
Having regard to the evidence of the ecologists and submissions of the parties in this case, I am satisfied that the offsets proposed to be conditioned in respect of the Amended Shed DAs (see Conditions 29 and 30) have been adequately considered in the BDAR and are appropriate to be imposed on the basis of the nexus between the proposed works and future use of the Sheds with the previous unlawful clearing in the location of those Sheds, and the public interest in requiring offsets in respect of unlawful clearing.
With respect to the proposed works and future use of the Sheds, the issues in dispute narrowed considerably during the hearing due to the amendments made by the applicants to the Shed DAs (as generally reflected in Ex K).
On balance, I accept that the potential impacts to trees and biodiversity as a result of the proposed works are acceptable, having regard to the wastewater and stormwater design amendments to move infrastructure out of the zones of influence of relevant trees and the conditions that the parties agree should be imposed if the Court is minded to grant consent to the Sheds DAs.
With respect to the Bioretention Works, it does not appear to be disputed that the potential impacts to trees in that area have been sufficiently addressed through design changes and appropriate conditions. I am satisfied that the agreed conditions contain appropriate provisions to ensure the acceptability of potential impacts from the Bioretention Works (see for example, Condition 22(d) of the Shed 1 Conditions).
With respect to the Stormwater Works on the southern boundary, I accept that the potential impacts have been significantly reduced and are acceptable on the basis of both the design changes depicted on Ex K and explained by Mr Castor in oral evidence to move the infrastructure away from the trees to limit any impacts to the retained trees, and the Agreed Conditions. I also note that the Agreed Conditions were finalised by the parties following the completion of the hearing and address a number of Ms Montgomery and Ms Adams-Bennett’s concerns.
In particular, I have placed weight on the following proposed conditions:
Condition 22(c) of the Shed 1 Conditions designates the area between Shed 1 and the southern site boundary for emergency access only. I consider this to be reasonable and appropriate to protect the NRZ of Tree 19. I also note that Ms Montgomery agreed that this approach “would reduce or remove impacts from tree 19” (T 22 April 2026, p 130 line 16-27).
Condition 22(a) requires the civil engineering and landscape plans to be amended to ensure no earthworks are proposed within the structural root zone (SRZ) of Tree 43. This addresses Ms Montgomery’s concerns regarding Tree 43 in oral evidence.
Condition 7 of the Shed 1 Conditions requires the replacement planting at a ratio of 3:1. This ratio is appropriate and reasonable in the circumstances.
Condition 22(c) of the Shed 1 Conditions requires the removal of the existing shipping containers along the southern boundary. This was agreed between all experts to be necessary and appropriate.
Conditions 7, 23 and 24 of the Shed 1 Conditions require an updated Landscape Plan, Tree Protection Specification and Tree Protection Plan to be prepared and provided to the respondent for approval. This condition will ensure the construction methodology is appropriately refined to specify finalised tree protection measures including for trees on neighbouring properties (such as Trees 4 and 5).
Further, I am satisfied that the amendments to the ShedsDAs in respect of the Bioretention and Stormwater Works has adequately sought to avoid and mitigate the potential impacts of the proposed works and use the subject of the Sheds DAs for the purposes of s 6.3A of the BC Act for the reasons given by the applicants. I am similarly satisfied that the Shed DAs may be approved having regard to the relevant provisions of the PDCP for the same reasons, namely that the design of the stormwater and wastewater system and proposed mitigation measures are reasonable in the circumstances of this case and meet the objectives in Section 2.1 of the PDCP.
With respect to Shed 2, I accept that its use and proposed works will not cause an unacceptable arboricultural or ecological impact, and accept the evidence of Dr Robertson that its siting within 30 m of Jerry’s Creek is acceptable in this case for the reasons given by Dr Robertson.
On balance, having regard to the offsets proposed and assessment carried out in the BDAR, design amendments as outlined in Ex K, and the Agreed Conditions, I consider that the proposed works relating to, and future use of, the Sheds may be approved having regard to matters of ecology and arboriculture.
I am also satisfied that the BIC Applications may similarly be approved having regard to matters of ecology and arboriculture, noting that the BIC Applications are necessarily intertwined with the Shed DAs in this case.
**“**1.3 Farm Buildings
A. Background
As the nature of agricultural activities changes, there has been an increase in the number and size of farm buildings and a corresponding increase in their impacts on the surrounding area. For this reason, it is necessary to provide controls for all developments involving farm buildings.
Unless specifically stated, the controls for farm buildings also apply to all sheds and outbuildings ancillary to any permissible use of rural land (specific to the relevant zone), whether or not that use is considered an agricultural use.
In some cases, there are additional controls for particular buildings, such as greenhouses and poultry farms. These controls are included in other relevant sections of this chapter. Where there is an inconsistency between this section and the other relevant part of this chapter, the controls in the latter should be applied.
B. General Objectives
a) To establish the rationale and controls for environmentally appropriate development;
b) To ensure the siting, size, design, external appearance and uses of farm buildings do not detract significantly from the rural and environmental qualities of the locality;
c) To ensure that farm buildings promote and support sustainable agriculture and other permissible rural land uses in the rural areas of the City; and
d) To ensure farm buildings are sited with regard to good site planning principles.
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1.3.1. Siting and Orientation
A. Background
These controls aim to ensure that farm buildings are appropriately sited and oriented having regard to the rural character, environmental qualities and agricultural potential of the site and the local area.
B. Objectives
a) To integrate farm buildings with the landscape so they complement the rural character of an area and are not visually dominant;
b) To ensure that farm buildings are located to have minimum adverse impact on the environment and on the potential use of the land for agriculture;
c) To provide separation between potential noise generating sources; and
d) To provide areas for landscaping between buildings.
C. Controls
- Farm buildings and outbuildings should be clustered in one location on properties. Where possible, this should be close to dwellings, but not where this will result in land use conflict.
- Farm buildings should have complementary colours and finishes to the dwelling house and surrounding environment.
- Farm buildings should not be erected on land having a slope in excess of 15%. Cut and fill for farm buildings should be limited to 1m of cut and 1m of fill as shown in Figure D1.11.
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- Farm buildings should be sited on the land so any disturbance to native vegetation is minimal.
- The narrowest elevation of farm buildings should face the road.
- Farm buildings shall be set back a minimum of 40m from any watercourse.
- Farm buildings should be setback behind the building line of the existing dwelling house on the property.
- Farm buildings should be a minimum distance of 10m from a dwelling located on the same allotment as the farm building.
- Farm buildings should be a minimum distance of 20m from a dwelling located on an adjacent allotment to the farm building.
- Landscape buffers should be provided, where possible, between farm buildings and nearby dwellings to minimise the visual impact of the farm building.
- Farm buildings should be a minimum distance of 5m from the side boundaries.
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1.3.2. Floor Space, Height and Design
A. Background
The size of a farm building can have a significant impact on the visual amenity of an area. These controls seek to strike a reasonable balance between the use of the farm building, the use of the land and the size of the property.
B. Objectives
a) To control the size and height of farm buildings to minimise their visual impact on the landscape;
b) To ensure that the size of farm buildings is consistent with the intended use and the size of the property;
c) To encourage improved design of farm buildings so they enhance the rural landscape and character of an area; and
d) To ensure that farm buildings use a range of design measures to suit individual circumstances.
C. Controls
- For allotments 3 hectares in size or less, the maximum accumulative building footprint of all farm buildings on an allotment shall not exceed 200m² (see Figure D1.13).
- For allotments between 3 hectares and 10 hectares in size, the maximum accumulative building footprint of all farm buildings on an allotment shall not exceed 400m².
Note: ‘Accumulative building footprint’ means the total sum of the ground floor area of all of the farm buildings on a single property. (The floor area under an awning may also be included as part of the accumulative building footprint, depending on the circumstances).
- For allotments more than 10 hectares in size, the maximum accumulative building footprint of all farm buildings on an allotment shall not exceed 600m².
- Intensive agricultural uses may require larger accumulated building footprints than those specified above. Variation will be considered but must be justified in the application.
- A farm building should not be more than 8m high.
- The maximum external wall height of a farm building shall be 5m. External wall height means the distance from the natural ground level to the underside of the eaves.
- Where a farm building is higher than the dwelling on the land, the building must be located behind the dwelling and screened from view by vegetation (or similar).
- The design of farm buildings should comprise traditional roof shapes to provide visual relief to the building, reduce the buildings dominance over its setting and to provide interest and character to the locality.
- Farm buildings should have a maximum external wall length of 15m between distinct corners or significant features such as awnings.
- Farm buildings shall have a minimum roof pitch of 15° and a maximum roof pitch of 25°.
- All elevations of farm buildings that face the street are to present a suitable level of detailing to minimize their visual bulk. Features which can be used include windows, awnings and verandahs.
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1.3.3 Materials and Colours
A. Background
It is important that farm buildings are constructed of appropriate materials and colours, which are present in the agricultural or natural environment of the locality. This is not intended to reduce innovative designs or use of materials as long as they are sympathetic to the rural landscape character of the area.
B. Objectives
a) To ensure that the colours used in the construction of farm buildings are consistent with the prevailing colours of the locality; and
b) To ensure that building materials used in farm building design reflect the rural setting and consist of traditional materials that are present in the locality.
C. Controls
- The colour of farm buildings shall complement the colours of the natural vegetation and background of the property, such as grey, brown, beige and green.
- Farm buildings shall be constructed of non-reflective materials. Where traditional materials, such as unpainted corrugated iron, are used, the building must be screened by landscaping to minimise its visual impact.
- The construction of farm buildings should utilise a range of materials to aid in the articulation of the building form. 4) Where farm buildings are below the 1:100 ARI flood level, they are to be constructed of materials that can withstand flooding.
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E9 Mulgoa Valley
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9.1.3 Building Form, Materials and Colours
A. Background
This section seeks to ensure that buildings adopt appropriate building forms, materials and colours that are consistent with conserving the Valley’s rural and natural landscape and its heritage values.
B. Objectives
a) To ensure building forms are in keeping with the traditional buildings of the Mulgoa Valley;
b) To ensure building materials match or complement those of older rural buildings and heritage items; and
c) To ensure building colours are derived from the local natural landscape, especially the stone and soil, and from the traditional colours of the historic buildings of the Valley.
C. Controls
- Buildings are to be a maximum of two storeys in height.
- Pitched roofs are preferable with a slope of between 30 and 45 degrees. Skillion roofs by themselves are to be avoided except as verandahs or for extensions.
- Large elements, especially flat surfaces, are to be avoided. Building façades and roof lines are to be broken into small elements. Garden structures, such as trellises and pergolas, can assist in breaking up large elements.
- Buildings are to be designed with a horizontal rather than vertical emphasis. For example, elements such as verandahs and wide eaves can add a horizontal emphasis.
- Windows and doors, expressed as openings in solid walls, are to have a vertical rather than a horizontal emphasis, and large unbroken glazed panels are to be avoided.
- Building materials are to match or complement those of older rural buildings and heritage items. Examples of appropriate materials are:
a) Walls – Dressed Hawkesbury sandstone, rendered brickwork, rendered concrete block work, pise, mud brick, earth wall construction, painted weatherboard (horizontal), corrugated iron and timber slab construction; and
b) Roofs – Slate, timber shingles, clay tiles of traditional shape and colour, corrugated iron and ribbed sheet metal.
- Building colours are to be derived from the local natural landscape, especially the stone and soil, and from the traditional colours of the historic buildings of the Valley. Examples are:
a) Walls – Light Indian Red, Biscuit, Light Stone, Drab, Light Red/Brown, Light Cream, Pink Beige and Brown Pink. Lighter colours are also acceptable, but avoid white and variegated and mottled colours in brickwork;
b) Roofs – Unpainted iron, Light Olive Green, Paynes Grey, slate grey and blue/grey; and
c) Trim – Bold rich deep colours such as Maroon, Terracotta and Brunswick Green.
The respondent submits that the Sheds are inconsistent with the C3 zone objectives and contravene the controls of the PDCP that mark the limits of acceptable built for and environmental impacts for this type of development. The respondent submits that the applicant has not demonstrated that the objectives of those controls would be achieved notwithstanding the non-compliances. In particular, the respondent submits that:
the siting, size, design, external appearance and proposed uses of Shed 1 and Shed 2 are contrary to the PDCP, Part D1, Section 1.3.1;
the floor space, height and design of Shed 1 and Shed 2 are contrary to PDCP, Part D1, Section 1.3.2;
the materials and colours of Shed 1 and Shed 2 are contrary to the PDCP, Part D1, Section 1.3.3;
the proposed use of Shed 1 and Shed 2 are inconsistent with the local character, and the existing and desired future character of the area; and
the proposed development is inconsistent with the C3 zone objectives.
The respondent submits that it is accepted that the proposed development does not comply with Controls 1 and 2-6 of Section 1.3.1 of the PDCP. It is the respondent’s contention that the proposed development also does not achieve the following objectives:
to integrate farm buildings with the landscape so they complement the rural character of the area and are not visually dominant; and
to ensure that farm buildings are located to have minimum adverse impact on the environment and on the potential use for agriculture.
The respondent submits that the proposed development contravenes Controls 3, 5-8, 9 and 11 of Section 1.3.2 relating to floor space, height and design. The respondent further contends that the proposed development also does not achieve the following objectives:
to ensure that the size of farm buildings is consistent with the intended use and size of the property;
to encourage improved design of farm buildings so they enhance the rural landscape and character of an area; and
to ensure that farm buildings use a range of design measures to suit individual circumstances.
To this end, the respondent submits that although Mr Barwick maintains that the Sheds will have minimal visual impact, he properly conceded that the objectives of Section 1.3.2 are not only concerned with visual impact and Mr Barwick did not give evidence as to how the other objectives were achieved.
The respondent submits that the proposed development does not comply with Controls 1-3 of Section 1.3.3 and also does not achieve the following objectives:
to ensure that the colours used in the construction of farm buildings are consistent with the prevailing colours of the locality; and
to ensure that building materials used in farm building design reflect the rural setting and consist of traditional materials that are present in the locality.
To this end, the respondent submits that the applicants have not provided a materials or colours schedule and also do not comply with Controls 2, 3, 6 and 7 or Objectives a, b and c in Part D9 of the PDCP, Section 9.1.3 relating to building form, materials and colours in Mulgoa Valley (in which the Subject Land is located).
With respect to character, the respondent submits that:
the applicants have not provided any character analysis of the area;
Mr Barwick’s assertion that sheds of a similar scale are located nearby was unsubstantiated;
neither expert has considered whether the proposed use of the Sheds would be consistent with the desired future character of the area; and
the Shed DAs lack specificity regarding details of the types of vehicles that will be parked in the Sheds and what “supplies”, “equipment” or “items” will be stored therein.
With respect to the C3 zone objectives, the respondent submits that:
The proposed development falls outside the limited range of development that does not have an adverse effect on the values of the C3 zone because proposed uses of Shed 1 and 2 would be for something other than residential purposes.
The scale of development conflicts with the land uses permissible on the immediately adjoining C2 zone.
The development is not compatible with the environmental capabilities of the land because of the extent of clearing that has and will be required for development.
The applicants submit that the Amended Shed DAs have been considered against relevant Controls and Objectives in the PDCP by Mr Barwick and are acceptable in the circumstances. The applicants criticise the analysis of Mr Kerkham on the basis that he does not give any evidence that the proposed sheds contravene any operative provision of the PDCP or PLEP in relation to the consideration of character impacts and his evidence is “so vague and general as to be of no assistance to the Court” (AWS at par 83).
The applicants rely on the evidence of Mr Barwick that:
Due to the distance of the Sheds from the public domain, the existing vegetation and additional screening vegetation required to be established by an earlier development consent, the visibility of the Sheds is minimal and will play an indiscernible contribution to the rural landscape.
The Sheds will maintain the rural landscape and local character which consists of a general openness with varying types of buildings and structures located in the landscape.
The Sheds will not be visible from Mulgoa Village and thus will no impact on the setting of the village.
I have considered the Sheds’ impact on character as a matter of relevance to all five proceedings. Relevant to this issue is the public interest, both as a matter of relevance under s 4.15(1)(e) of the EPA Act in respect of the Shed DAs, and as a matter relevant to the exercise of the Court’s discretion in respect of the BIC Proceedings and DCO Proceedings. Also relevant to the issue of character are relevant provisions of the PLEP and PDCP.
The only real analysis by the town planners in the written evidence in respect of the suitability of the Sheds to remain on the Subject Land is the consideration of the public interest in the Joint DCO/BICs Planning Report (Ex 4, pp 9-13). In this analysis, both experts agree that if the Sheds are used for storage purposes, amenity impacts are minimised.
Mr Barwick provides his views in relation to the suitability of the Sheds to remain through the framework of the DCO and BICs Proceedings (on the basis that the Shed DAs do not propose any works that would impact on character and bulk and scale etc).
Mr Kerkham provides evidence that the objectives set out under Part D1, Part D1.1 and Part D.1.3.2 of the PDCP are not met and asserts that the general objectives as listed under Part D1B are not met including in particular:
Part D1 B, Objective m) which seeks to promote rural residential development where it is consistent with the conservation of the rural, agricultural, heritage and natural landscape qualities of the area;
Part D1.1B Objective b) which seeks to retain and protect each of the elements that make up the rural character of Penrith;
Part D1.3.2, Objective b) to ensure that the size of farm buildings is consistent with the intended use and size of the property; and
Part E9, Objective f) to ensure that development in the Mulgoa Valley is consistent with conserving its rural and natural landscape, heritage, and agricultural qualities.
Mr Kerkam provides no further evidence, either in writing or orally, to support these assertions.
Mr Kerkham’s oral evidence that the justification for his lack of reasoning in the Joint DCO/BICs Planning Report was that he not been able to attend a further site inspection is rejected. There is no statement by Mr Kerkham in any joint report of which he is an author qualifying that his evidence was subject to, or required, a further site inspection (noting that he had already attended the Subject Land and inspected the inside of Shed 1 in June 2025). I further note that the Joint DCO/BICs Planning Report was filed on 21 October 2025 and the Joint Sheds Planning Report was filed on 19 March 2026. There was ample time prior to the hearing to request a further site view in order to prepare his evidence if a further site view was required.
I also accept the respondent’s criticisms of Mr Barwick that he did not specifically address Part D13 of the PDCP in his written evidence. However, I note that Mr Kerkham equally provided no analysis of these matters.
Therefore, based on the limited evidence I was able to obtain from the Joint DCO/BICs Planning Report, Joint DAs Planning Report, cross examination of the experts, the Shed 1 SEE and Shed 2 SEE, and my own observations from the site view on the first day of the hearing, I am satisfied that:
The use of the proposed Sheds will be for purposes ancillary to the residential use of the Subject Land for the reasons set out above. I therefore reject the respondent’s arguments that the proposed use of the land is inconsistent with the objectives of the C3 zone, that the applications lack specificity as to what will be stored in Shed 1, or that the size of the Sheds is inconsistent with the intended use and size of the property.
The visibility of the Sheds will be minimal having regard to the existing and proposed screen planting under the approved VMP and the approximately 250 m distance of the Sheds from Mulgoa Road as stated by Mr Barwick. To this end I note that Mr Kerkham stated in oral evidence that “you could catch glimpses of the Sheds as you are passing down Mulgoa Road” (T 22 April, p 65 line 18-19) and accepted that the vegetation approved under the VMP would assist in screening the sheds from any glimpse from Mulgoa Road (T 22 April 2026 p 67 line 11-20).
The Sheds are not visible from Mulgoa Village and will not have any impact on the village as contended by Mr Barwick.
The character of the area, including Mulgoa Valley, is defined by general openness of the area with various types of buildings and structures located in the landscape as contended by Mr Barwick and the Sheds are consistent with this character and will not detract from the rural and environmental qualities of the locality.
The proposal does not conflict with the objective to protect prime agricultural land given that the soil capability classification of the Subject Land is Class 7 “Very Low Capability” as stated by Mr Barwick.
The Subject Land is not a heritage item, and the location, setbacks and landscape treatments will minimise the visibility of the Sheds and could not be said to diminish vistas or heritage items within the valley as stated by Mr Barwick.
The Sheds are dark Colourbond metal and will recede visually behind the existing landscape and the landscaping proposed in relation to the separate fence consent. To this end, the palette of colours is not inconsistent with the prevailing colours in the locality and local natural landscape (which include grey, brown, beige or green).
The Sheds generally reflect the rural setting and consist of traditional materials present in the locality and will be screened by landscaping to minimise visual effect.
I am therefore satisfied that the relevant objectives of the PDCP are generally achieved by the Amended Shed DAs and in the consideration of the BIC Proceedings and DCO Proceedings, including those set out in:
PDCP: Part D 1.3 Farm buildings;
PDCP: Part D 1.3.1 Siting and orientation;
PDCP: Part D 1.3.2 Floor space, height and design;
PDCP: Part D 1.3.3 Materials and colours;
PDCP: Part D 9.1.3 Building form, materials and colours.
For completeness, I note that I have also considered the zone objectives for the C3 Environmental management zone in the PLEP, and consider that the Shed DAs and BIC Applications may be approved having regard to those objectives.
I therefore find that the Shed DAs and BIC Applications are able to be approved having regard to matters of character, size, bulk and scale.
It is undisputed that the Subject Land is located within the flood planning area and cl 5.21 of the PLEP relating to flood planning applies. It is also undisputed that the Subject Land functions as a flood storage area and is assigned a H6 High Hazard classification.
All contentions relating to flooding were resolved in the Joint DCO/BICs Flooding Report in relation to the BIC and DCO Proceedings as follows:
The Sheds will not detrimentally impact on flood behaviour under existing or future climate change conditions (see cl 5.21(b), (2)(a) and (3)(a) of the PLEP) (Ex 2 at par 13).
There will be sufficient warning time to evacuate any shed occupants and either relocate or secure within the shed (if required) any vehicles/plants/equipment/supplies (see cl 5.21(2)(c) and (d) of the PLEP) (Ex 2 at par 19).
The objectives of Section 3.6 of the PDCP relating to stormwater are met for the reasons given in the Technote prepared by Martens dated 29 October 2025 (Technote) (Ex 2 at par 24).
The Sheds have been designed and constructed to be structurally compatible with the H6 flood hazard classification under peak 1% AEP flood conditions (Ex 2 at par 42).
The Sheds will not lead to adverse or cumulative impacts on flood behaviour or the environment (Ex 2 at par 50) (see cll 5.21(1)(c) and (2)(b) of the PLEP).
The objectives under cl 5.21(1) of the PLEP are satisfied.
Notwithstanding the above agreements in relation to the structure of the Sheds, there were a number of matters in dispute in relation to the DA Proceedings in relation to the use of the Sheds.
The respondent submits that:
The proposed use of Shed 1 for storage would increase the risk to life and property resulting from flood events.
The Sheds are located within a H6 high hazard area which is categorised as unsafe for vehicles and people. In such conditions, vehicles may float during flooding events causing risk to vehicle occupants, risk to plant and equipment and potential impacts to downstream riverine environments.
It is agreed that the 1% AEP flood level is 46.1 m AHD, which means that the flood waters would be 5.2 m above the existing ground level of the Sheds and above the height of the floor of the mezzanine levels in Shed 1.
Permitting the use of these enormous sheds for the storage of large quantities of goods including an extensive private car collection, metalworking equipment, and trucks, is inconsistent with the flooding controls and objectives in Part C3 Section 3.5 of the PDCP.
Although Dr Martens contends that an occupier would have sufficient time to evacuate themselves and all of their property from the Subject Land in the event of a flood (assuming they are at home), it cannot be doubted that the more property one stores on a “high hazard” flood area, the greater the risk that there may be damage to property, and consequently, life and persons, as there is a greater chance that a person may endanger themselves to salvage any property stored in Shed 1.
Dr Martens’ evidence that the goods in Shed 1 would simply be stored outside if the Sheds DAs were refused is unsupported by evidence and common experience.
The applicants rely on the evidence of Dr Martens and Technote to establish the following facts:
The rate of flood water rise in a 1% AEP flood event is 0.4m/hour.
The time between the commencement of rain to the peak of the 1% AEP flood event is around 56 hours.
The time between the commencement of rain to the cut-off evacuation route is around 31 hours. The duration of the route being cut off is 46 hours.
Peak velocity is very low, being less than 0.2m/s. The rise of water would not cause excess hydrostatic pressure due to the slow nature of increased levels.
The Sheds are in a location where sufficient warning time is available for occupants to leave the site and relocate and secure goods if necessary, before egress is cut by flood water and that there is a refuge area above the probable maximum flood level located 1.5 km from the Subject Land, being a 2-3 minute drive.
The storage of equipment and machinery within sheds is not uncommon within the Hawkesbury Nepean floodplain.
The Sheds would not be subject to structural damage during the 1% AEP flood event, notwithstanding the H6 High Hazard classification.
The applicant submits that Mr England provides evidence in respect of the Shed DAs which directly contradicts his evidence in respect of the DCO and BIC Proceedings and provides no basis for his later evidence that stored items will be unable to be removed or recovered prior to inundation, or that occupants of the land are likely to enter floodwaters to recover items resulting in a risk to life.
The applicants also notes that Shed 2 is not proposed to be used for storage and has been incorrectly considered on this basis.
I am satisfied that the BIC Applications and Shed DAs may be approved having regard to flooding matters.
In respect of the BIC Applications, I note that the experts agreed that all relevant matters under cl 5.21 of the PLEP and the PDCP were satisfied and I accept these findings.
In respect of the Shed DAs and having regard to cl 5.21 of the PLEP, I accept that:
The development is compatible with the flood function and behaviour of the land presently and accounting for projected changes as a result of climate change, noting that it is agreed that the Sheds have been designed and constructed to be structurally compatible with the H6 flood hazard classification under peak 1% AEP flood conditions. In circumstances where the proposed use of Shed 1 is for storage purposes and the proposed use of Shed 2 is for a pickleball and basketball court associated with the residential use of the land, the structural integrity of the Sheds is appropriate and necessary. There is nothing inherently incompatible with the proposed use of storage and personal recreation and the flood function and behaviour of the land. I further note that Mr England agreed in the Joint DCO/BICs Flooding Report at par 19 that “there will be sufficient warning time to evacuate any shed occupants and either relocate or secure within the shed (if required) any vehicles/plants/equipment/supplies”. Mr England provides no clear reason why he changes his view in respect of the Shed DAs when the proposed storage use of Shed 1 is unchanged.
The development will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties noting the agreed position of the flooding experts in the Joint DCO/BICs Flooding Report. There is no cogent reason for this opinion to change in light of the proposed use of Shed 1 for storage and Shed 2 for a pickleball/basketball court. For example, there is no evidence that the proposed use of the Sheds will displace flood storage or impact on the flow of waters.
The development will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood. To this end, I accept the evidence of Dr Martens that there is ample evacuation time and note that the proposed use of the Sheds is ancillary to an existing residential use and does not propose, for example, a new dwelling on the land. I also note the agreed conditions of consent require a flood evacuation plan (see conditions 1 and 20) which I consider to be reasonable and appropriate in the circumstances.
The development incorporates appropriate measures to manage risk to life in the event of a flood for the reasons given by Dr Martens and the flood evacuation plan required by condition 20.
The development will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of riverbanks or watercourses. There is no cogent evidence in this case that would suggest this to be the case, and this matter was not pleaded by the respondent.
No jurisdictional or merit issues other than those considered above were raised by the respondent in the hearing.
The applicant prepared a Jurisdictional Statement which was not opposed by the respondent.
It is not disputed that Ch 6 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 Hawkesbury Nepean Catchment. I accept the undisputed assessment of the matters set out in Ch 6 in the Jurisdictional Statement.
With respect to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) regarding contamination, I am satisfied of the matters in s 4.6 on the basis of the PSI which relevantly concludes that the potential contamination risks to future site receptors is low and that consent may be granted for the use proposed. I am satisfied that the Subject Land is suitable for the proposed ongoing residential use subject to a condition regarding unexpected finds (see condition 60).
Remaining matters of relevance under the PLEP include:
Clause 7.1 Earthworks,
Clause 7.3 Development on natural resources sensitive land,
Clause 7.4 Sustainable development,
Clause 7.5 Protection of scenic character and landscape values,
Clause 7.6 Salinity,
Clause 7.7 Servicing and
Clause 7.18 Mulgoa Valley.
To the extent that matters raised under these provisions have not already been traversed above, I accept the undisputed assessment of these matters as set out in the Jurisdictional Statement and the Shed 1 SEE and Shed 2 SEE.
For completeness, although not raised in the Jurisdictional Statement, I confirm that s 4.14(1) of the EPA Act applies to the Amended Development Application as the Subject Land is mapped as bush fire prone land. I am satisfied that the proposed development conforms to the specifications and requirements of Planning for Bushfire Protection having regard to the Bushfire Risk Assessment prepared by Blackash dated 5 July 2024 in respect of Shed 1 (Ex D, tab 6) and Bushfire Compliance Certificate prepared by Blackash dated 19 November 2024 in respect of Shed 2 (Ex G, tab 6) and conditions 1 and 56 of the Shed 1 Conditions.
I rely on the documents comprising the Amended Shed DAs and the Joint Wastewater Report in respect of the resolution of all contentions relating to wastewater.
The matters listed in s 4.15(1) subs (b), (c) and (e) of the EPA Act are considered generally in the Shed 1 SEE (see pp 11-12) and Shed 2 SEE (pp 11-12).
I am satisfied that all relevant jurisdictional and merit issues have been addressed and there is no impediment to the grant of consent to the Amended Shed DAs.
I am satisfied that the respondent should be directed to issue the Shed 1 BIC and Shed 2 BIC pursuant to s 8.25(3)(a) of the EPA Act on the terms proposed by the applicants in the BIC Applications on the basis that I am satisfied that the Sheds are structurally sound, their retention will have acceptable impacts, and this is consistent with my decision to grant consent to the ongoing use of, and further works to, Shed 1 and Shed 2.
I am satisfied the DCO should be revoked pursuant to s 8.18(4)(a) of the EPA Act on the basis that I have determined to grant consent to the Shed 1 DA and direct the respondent to issue the Shed 1 BIC.
As stated previously, the parties have provided agreed conditions in respect of the Amended Shed DAs in the event the Court was minded to grant approval to those applications.
I consider it appropriate to grant development consent to the Amended Sheds DAs subject to these agreed conditions.
It is important to note that this matter involves the past clearing of trees and construction of large sheds in circumstances where the applicants did not obtain the necessary approvals and consents. This conduct is not to be condoned or encouraged.
However, I am bound by the evidence presented in this case and I am satisfied that the evidence in this case establishes that the ecological, arboricultural, planning and flooding considerations and impacts are acceptable having regard to the statutory regime set out in the EPA Act.
On this basis, I have determined to uphold the applicants’ appeals in all five proceedings such that the:
Shed 1 DA is approved;
Shed 2 DA is approved;
Shed 1 BIC is directed to be issued;
Shed 2 BIC is directed to be issued; and
DCO is revoked.
The Court orders that:
The appeal is upheld.
The Development Control Order dated 11 December 2024 concerning the land located at 1 Water Street Wallacia is revoked pursuant to s 8.18(4)(a) of the Environmental Planning and Assessment Act 1979 (NSW).
Exhibits are returned except for Ex A, B, C, D, G, K, M, 2, 3, 4, 5, 6, 7 and 8.
The Court orders that:
The appeal is upheld.
The respondent is directed pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979 (NSW), to issue a Building Information Certificate in relation to Shed 1 in accordance with BC24/0082 on land legally identified as Lot 4 in Deposited Plan 718232 and known as 1 Water Street, Wallacia, within 7 days of the date of these orders.
Exhibits are returned except for Ex A, B, C, D, G, K, M, 2, 3, 4, 5, 6, 7 and 8.
The Court orders that:
The appeal is upheld.
The respondent is directed pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979 (NSW), to issue a Building Information Certificate in relation to Shed 2 in accordance with BC24/0094 on land legally identified as Lot 4 in Deposited Plan 718232 and known as 1 Water Street, Wallacia, within 7 days of the date of these orders.
Exhibits are returned except for Ex A, B, C, D, G, K, M, 2, 3, 4, 5, 6, 7 and 8.
The Court orders that:
The appeal is upheld.
Development Application No DA25/0656, as amended, in respect of Shed 1 on land legally identified as Lot 4 in Deposited Plan 718232 and known as 1 Water Street, Wallacia, is determined by the grant of consent subject to the conditions at Annexure A.
Exhibits are returned except for Ex A, B, C, D, G, K, M, 2, 3, 4, 5, 6, 7 and 8.
The Court orders that:
The appeal is upheld.
Development Application DA25/0657, as amended, in respect of Shed 2 on land legally identified as Lot 4 in Deposited Plan 718232 and known as 1 Water Street, Wallacia, is determined by the grant of consent subject to the conditions at Annexure B.
Exhibits are returned except for Ex A, B, C, D, G, K, M, 2, 3, 4, 5, 6, 7 and 8.
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Annexure A (269 KB, pdf)
Annexure B (270 KB, pdf)
HSEM Management Pty Ltd, Urusoglu
Penrith City Council