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[2025] NSWLEC 1298
General information, not legal advice.
Land and Environment Court (NSW)
2025-05-06
Washington 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: Ingham Property Development Pty Limited v Wollondilly Shire Council [2025] NSWLEC 1298
Hearing dates: Conciliation conference on 21 January, 18 February and 18 March 2025
Date of orders: 06 May 2025
Decision date: 06 May 2025
Jurisdiction: Class 1
Before: Washington C
Decision: The Court orders:
(1) The appeal is upheld.
(2) Development consent is granted to Development Application No. DA/2024/360/1 for the Torrens title subdivision of eight lots to create 51 lots, including earthworks, civil works and construction of roads at 140 Myrtle Creek Avenue, Tahmoor NSW (Lots 1-6 in DP 1128745, Lot C in DP 374621 and Lot 255 in DP 10669) subject to the conditions set out in Annexure A.
(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent in the agreed sum of $17,000 within 28 days of the date of these orders being made.
Catchwords: DEVELOPMENT APPLICATION – subdivision – conciliation conference – agreement between the parties – orders
Legislation Cited: Biodiversity Conservation Act 2016, ss 7.7, 7.13, 7.16
Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15,
Land and Environment Court Act 1979, ss 34
Environmental Planning and Assessment Regulation 2021, s 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 4.9, 6.4, 6.6, 6.7, 6.8, 6.7, 6.10, 6.11, 6.12, 6.20, 6.21, Ch 6
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Wollondilly Local Environment Plan 2011, cll 2.64, 4.1, 5.10, 5.21, 7.1, 7.2, 7.3, 7.5, 7.6, 7.9
Category: Principal judgment
Parties: Ingham Property Development Pty Limited (Applicant)
Wollondilly Shire Council (Respondent)
Representation: Counsel:
N Bergman (Solicitor) (Applicant)
B Warry (Solicitor) (Respondent)
Solicitors:
Allens (Applicant)
Maddocks (Respondent)
File Number(s): 2024/291341
Publication restriction: Nil
COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Wollondilly Shire Council, of Development Application DA 2024/360/1, which sought consent for the subdivision of eight lots into 56 residential and rural residential lots, including earthworks, clearing and construction of associated roads and drainage infrastructure at 140 Myrtle Creek Road, Tahmoor.
These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 21 January, and further adjourned to 18 February and 18 March 2025. I presided over the conciliation conference.
After the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.
As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application to adequately respond to the Council's contentions. The application that is now before the Court seeks consent for the subdivision of eight lots into 51 residential lots, earthworks, clearing, and construction of associated roads and drainage infrastructure. The application was also amended so that it is no longer to be assessed as integrated development.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained, and from this I note the following points.
The development application was made with the written consent of the owner of the land.
The application was adequately notified in accordance with the Wollondilly Shire Council Community Participation Plan from 22 May to 24 June 2024. No submissions were received during this time, however one submission was received from the operator of the neighbouring property after the notification period. On the basis of the amended application and the parties’ submission, I accept that the relevant issues raised by this objector have been adequately addressed. Further, the parties agree that the amended application does not necessitate renotification due to the amendment reducing the potential environmental impacts.
The site is, in part, mapped as bush fire prone land. The proposed development, as lodged. received General Terms of Approval (GTAs) and a Bushfire Safety Authority on 8 August from the NSW Rural Fire Service (NSW RFS), however as per the amendment noted above, the application as amended has not been further referred to NSW RFS for an update to this authority and GTAs. Accordingly, based on the parties’ submission and the Supplementary Bushfire Statement dated 12 March 2025 by Building Code and Bushfire Hazards Solutions, I accept that the proposed development conforms to the necessary requirements of Planning for Bushfire Protection.
Parts of the site are mapped as ‘Biodiversity Values’ on the Biodiversity Values Map pursuant to the Biodiversity Conservation Act 2016 (BC Act). The proposed development involves clearing of land within the mapped areas to an area greater than 0.5ha. Due to this and the risk of serious and irreversible impact to Shale Sandstone Transition Forest and Cumberland Plain Woodland, both of which are listed as Critically Endangered Ecological Communities, the development application is accompanied by a Biodiversity Development Assessment Report (BDAR) by Arcadis dated 12 March 2025. From the parties’ submission, the conditions of consent, and the information contained in the BDAR, Vegetation Management Plan (VMP) by Arcadis dated 25 February 2025, and the Koala Assessment Report and Koala Habitat Management Plan (KHMP) also by Arcadis dated 25 February 2025, I accept that the proposed development will not have a serious and irreversible impact on biodiversity values, and that the requirements of the BC Act ss 7.7, 7.13, and 7.16 are met.
The subject site is located within the Central Coast Koala Management Area pursuant to the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C). From the information contained in the Koala Assessment Report included in the BDAR, the KHMP, the VMP, and the parties’ submissions, I accept that the amended subdivision layout maintains a connectivity/habitat corridor, and that the proposed development is not likely to have any impact on koalas or koala habitat, as required by s 4.9 of the SEPP B&C.
The subject site is located within the Hawkesbury-Nepean Catchment and the Upper Nepean Sub-Catchment pursuant to s 6.4 of the SEPP B&C. To inform the requirements of Ch 6 of the SEPP B&C, in their submissions the parties rely on the following documents:
Statement of Environmental Effects by GLN Planning dated 14 March 2025 (SEE)
Water Cycle Master Plan Report by Stantec dated 26 February 2025
Bulk Earthworks Layout Plan by Stantec dated 5 March 2025
Groundwater Monitoring Report by Senversa dated 27 February 2025
Effluent Disposal Report by AgEnviro Solutions dated 3 March 2025
BDAR
Plan of Subdivision for the Proposed Development by Colliers dated 4 March 2025
From the parties’ submission, and the above documents, I accept that the requirements of Ch 6 of the SEPP B&C relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met with the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10), and that the proposed development does not involve any water-dependent uses or give rise to any land use conflicts associated with natural waterbodies (s 6.11). The development minimises the impact on the scenic quality of the Riverine Scenic Area within which it is located through maintaining appropriate buffers and setbacks to the Bargo River, and improving vegetated corridors (s 6.12).
Pursuant to the considerations listed in s 6.20 of the SEPP B&C, the parties confirm that the development is not capable of connecting to a sewage reticulation system, but that the site is suitable for on-site effluent disposal that can operate without significant adverse long-term impacts on adjoining land. The detailed requirements at 6.20(3) will need to be satisfied by future development applications for dwellings on each lot following subdivision.
Pursuant to the requirements of s 6.21 of the SEPP B&C, from the parties’ submission, the Water Cycle Masterplan Report and the SEE, I accept that the proposed development is appropriately designed to ensure it will not cause untreated stormwater to be disposed of in the river, or any other natural waterbody.
The development application proposes the relocation of existing above-ground power lines to an underground system. Accordingly, pursuant to s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021, the application was referred to Endeavour Energy who provided comments. These comments were incorporated into the Utilities Servicing Study by Stantec dated 4 March 2025 in the amended application and the agreed conditions of consent.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it will be suitable for the intended use. Based on the parties’ submission and the information contained in the Environmental Site Assessment by Senversa dated 29 April 2024, the Groundwater Monitoring Report, the Supplementary Contamination Letter by Senversa dated 27 February 2025 and the Remediation Action Plan (RAP) by Senversa dated 13 February 2025 I accept that subject to compliance with the RAP through the agreed conditions of consent, that the site can be made suitable for the intended use.
The subject site is predominantly zoned RU4 Primary Production Small Lots, and a small portion adjacent to the Bargo River Gorge zoned C2 Environmental Conservation under the Wollondilly Local Environmental Plan 2011 (WLEP). No works are proposed in the latter zone, and the proposed development is both permissible with consent and consistent with the objectives of the RU4 zone. Subdivision is permitted with consent under s 2.6 of the WLEP.
Pursuant to WLEP cl 4.1, the minimum lot size for the majority of the site is 2ha, and 450m2 to the northern corner. The proposed development complies with these minimum lot sizes.
Pursuant to the requirements of WLEP cl 5.10(8), from the parties’ submissions and the Aboriginal Cultural Heritage Assessment by McCardle Cultural Heritage dated 3 March 2025, I accept that the proposed development will not impact the three identified places of Aboriginal heritage significance. This is further supported by a proposed restriction on title.
Part of the subject site is identified as being within the extent of the 1% AEP event. From the parties’ submission, the Water Cycle Master Plan Report, the civil engineering plans and the overland flow management plan (C1042) by Stantec dated 5 March 2025, I accept that the matters listed in cl 5.21(3) of the WLEP have been considered, and that the proposed development meets the flood-related requirements of cl 5.21(2).
From the parties’ submissions and the Utilities Servicing Study, I accept that all essential services listed in WLEP cl 7.1(1) can be made available to the site when required.
From the parties’ submissions and the information contained in the BDAR, the VMP and the Water Cycle Master Plan Report, I accept that the matters relating to biodiversity and water protection listed in WLEP cll 7.2(3) and 7.3(3) respectively have been considered, and that the proposed development has been designed, sited and will be managed to minimise any adverse environmental impacts of the kind identified in cll 7.2 and 7.3.
Earthworks are proposed for the construction of roads and stormwater infrastructure. From the parties’ submission and the information contained in the Water Cycle Master Plan Report, and the Bulk Earthworks Layout plan (C1008) revision G by Stantec dated 5 March 2005, I accept that the matters listed in WLEP cl 7.5 have been considered and the proposed earthworks are acceptable.
Pursuant to WLEP cl 7.6, the site is adjacent to, but not mapped within, an odour buffer area on the relevant map. Nonetheless, and noting this issue was raised by a neighbouring objector, from the parties’ submission and the Odour Impact Assessment by Todoroski Air Services dated 3 March 2025, I accept that the proposed development will not be adversely affected by odour from the adjacent poultry operation, nor will it affect the operational environment of this poultry operation.
From the parties’ submissions and the information contained in the amended application, I accept that the matters listed in WLEP cl 7.9 have been considered and the proposed development is acceptable within the Metropolitan Rural Area.
For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
The Court notes:
The Respondent has agreed under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) to the Applicant amending Development Application No. DA/2024/360/1 to rely upon the following amended plans and documents, as filed with the Court:
| Document | Date | | Statement of Environmental Effects by GLN Planning | 14 March 2025 | | Social and Health Impact Assessment by GLN Planning | 5 March 2025 | | Draft Plans of Subdivision by Colliers | 4 March 2025 | | Utilities Servicing Study by Stantec | 4 March 2025 | | Water Cycle Master Plan Report by Stantec | 26 February 2025 | | MUSIC Model by Stantec | 26 February 2025 | | DRAINS Model by Stantec | 26 February 2025 | | Civil Engineering Plans Revision G by Stantec | 5 March 2025 | | Biodiversity Development Assessment Report by Arcadis | 12 March 2025 | | Vegetation Management Plan by Arcadis | 25 February 2025 | | Koala Habitat Management Plan by Arcadis | 25 February 2025 | | Arboricultural Impact Assessment by CPS | 4 March 2025 | | Supplementary Bushfire Statement by BC&BHS | 12 March 2025 | | Aboriginal Cultural Heritage Assessment by McCardle Cultural Heritage | 3 March 2025 | | Groundwater Monitoring Report by Senversa | 27 February 2025 | | Supplementary Contamination Letter by Senversa | 4 March 2025 | | Effluent Disposal Report by AgEnviro Solutions | 3 March 2025 | | Traffic Impact Assessment by Traffix | 4 March 2025 | | Odour Assessment Report by Todoroski Air Services | 3 March 2025 | | Noise Impact Assessment by GHD | 5 March 2025 |
The Court orders:
The appeal is upheld.
Development consent is granted to Development Application No. DA/2024/360/1 for the Torrens title subdivision of eight lots to create 51 lots, including earthworks, civil works and construction of roads at 140 Myrtle Creek Avenue, Tahmoor NSW (Lots 1-6 in DP 1128745, Lot C in DP 374621 and Lot 255 in DP 10669) subject to the conditions set out in Annexure A.
Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent in the agreed sum of $17,000 within 28 days of the date of these orders being made.
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Annexure A (1073018, pdf)
Ingham Property Development Pty Limited
Wollondilly Shire Council [2025] NSWLEC 1298