Kembla Project Pty Ltd v Wollongong City Council

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

Texts Cited: Wollongong Development Control Plan 2009

Category: Principal judgment

Parties: Kembla Project Pty Ltd (Applicant)
Wollongong City Council (Respondent)

Representation: Counsel:
C Rose (Applicant)
J Reilly (Solicitor) (Respondent)
Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Applicant)
Wollongong City Council (Respondent)

File Number(s): 2024/134510

Publication restriction: Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of development application DA23/596 (DA) by Wollongong City Council (Council). The DA seeks consent for demolition of existing structures, dam dewatering, removal of vegetation, remediation, civil and stormwater works, landscaping, environmental protection works, 86 lot subdivision and land dedication. The DA relates to land at 70 Paynes Road, Stream Hill, legally identified as Lot 189 in DP 751278 (the site). The site falls within the West Dapto urban release area.

Conciliation and agreement between the parties

2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act), at which I presided. The conference was held on 7 July 2025. Prior to the conference, the parties had come to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the DA, as amended, in accordance with agreed conditions.

Pre-requisites to the exercise of the function to grant development consent

3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

4. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties' agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [62]-[65]). Ultimately, I find that there are none. But there are certain statutory queries which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties' jurisdictional statement of 8 July 2025 (JS) and subsequent advice.

Integrated development

5. The parties advise that the DA is integrated development for the purposes of s 4.46 of the EPA Act, as the proposal would also require approvals under:

6. Section 91 of the Water Management Act 2000 (NSW), in relation to the need to obtain a controlled activity approval from the Natural Resource Regulator for works within waterfront land.

7. Section 100B of the Rural Fires Act 1997 (NSW), in relation to the need to obtain a bush fire safety authority from Rural Fire Service, given the site is identified as bushfire prone land.

8. The parties advise and I accept that in each instance general terms of approval (GTAs) have been obtained from the approval bodies and factored into consent conditions. Moreover, I note that, under s 39(6)(a) of the LEC Act, in this instance, the Court has power to determine the appeal with, or without further (or any) GTAs.

Biodiversity Conservation Act 2016 (NSW)

7. The parties advise that the proposal would exceed the biodiversity offsets scheme (BOS) threshold under s 7.4 of the Biodiversity Conservation Act 2016 (NSW) (BC Act), by (JS par 25):

“a) proposing to clear vegetation on land mapped on the Biodiversity Values Map, thereby exceeding the BOS threshold under cl 7.1(1)(b) of the Biodiversity Conservation Regulation 2017 (BC Regulation); and

b) exceeding the native vegetation clearing threshold (based on minimum lot size) under cl 7.1(1)(a) of the BC Regulation.”

8. Mindful of s 7.7, the DA is accompanied by a biodiversity development assessment report (BDAR) prepared in accordance with Division 3 of Part 6 of the BC Act and cl 6.8 of the Biodiversity Conservation Regulation 2017 (NSW) and assessment under the Biodiversity Assessment Method (BAM). The analysis in this work is supported by the parties.

9. In accordance with s 7.13(2) of the BC Act, the BDAR contains an assessment of the likely impact of the Proposed Development on biodiversity values, which has enabled the consent authority to take into consideration the likely impact of the proposed development on biodiversity values as required by s 7.13(2) of the BC Act.

10. The BDAR notes that all impacts to biodiversity cannot be avoided. Section 4 lists a series of mitigation measures to mitigate impacts “to the fullest extent practical” including provision and enacting of a Vegetation Management Plan (VMP), among other steps. Residual impacts are addressed through offset requirements as indicated in Section 7 of the BDAR. The parties advise the BDAR demonstrates that sufficient steps have been adopted to avoid and minimise the biodiversity impacts of the development as required under s 6.4 of the BC Act. I accept the advice of the parties.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (NSW)

Chapter 4 – Koala habitat protection 2021

11. Before granting consent to the Amended Application, the consent authority must assess whether the development is likely to have any impact on koalas or koala habitat. Section 6.3 of the BDAR includes an assessment against Chapter 4 of the Biodiversity SEPP and a note that there have not been records of Koala within 4 km of the site in the past 20 years, which is suggested in the BDAR to indicate that the site is not considered core Koala habitat. This advice is adopted by Council and myself, meaning there is no bar to consent under s 4.9(5).

State Environmental Planning Policy (Resilience and Hazards) 2021 (NSW)

12. Pursuant to s 4.6, a consent authority must be satisfied that appropriate consideration has been given to whether the land is contaminated, the suitability of the land to the proposed development and whether satisfactory measures are put into place to remediate the land should it be required to do so. The parties advise that the contamination assessment concludes that while there is on-site contamination, the site can be made suitable for the proposed development and that a Remediation Action Plan, factored into proposed consent conditions, has been prepared in support of this conclusion. On the basis of this advice, I am satisfied as to the matters set out in s 4.6(1).

State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW)

Electricity transmission or distribution

13. Section 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW) applies. Both the DA and amended DA were referred to Endeavour Energy (as the electricity supply authority) inviting comments about potential safety risks. Relevant to me is the most recent feedback which acknowledges that the proposal no longer proposes any works within the relevant electricity easement, and states that “Endeavour Energy has no further objection to the Development Application.” The requirements to give written notice and take into consideration any response has been met.

Wollongong Local Environmental Plan 2009 (NSW)

14. The site is zoned part R2 Low Density Residential and part C3 Environmental Management, under applicable Wollongong Local Environmental Plan 2009 (NSW) (WLEP).

15. I accept the parties’ advice that the proposed development is permissible under applicable zonings and that subdivision is permissible under cl 2.6 of WLEP and demolition also under cl 2.7. The parties advise of their shared view that the proposal is consistent with the objectives of each zone, relevantly.

16. The parties advise that the proposal does not breach any development standards.

17. Clause 5.21 of WLEP relates to flooding. It applies, as the site includes land within the flood planning area. There are various matters of consideration (cl 5.21(3)) and six matters requiring findings of satisfaction on the part of the consent authority under cl 5.21(2). The applicant (via its consultants Martens) has addressed each of these matters directly, advising that a position of satisfaction is available with respect to each matter (memo entitled: “Statement of Compliance with Clause 5.21 Flood Planning of the Wollongong LEP 2009 – Proposed Residential Subdivision at 70 Paynes Road, Kembla Grange”, dated 8 July 2025). This advice also relied on the Flood Assessment Report (dated 7 March 2025) and the Joint Expert Report (dated 10 April 2025), cross referencing at various points. The parties advise of their acceptance of the Martens commentary. I too accept this explanation and am satisfied with respect to each of the points at cl 5.21(2).

18. Clause 6.1(2) provides that development consent must not be granted in this instance, unless the Director-General of Planning has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in relation to that lot. The parties advise appropriate certification has occurred, evidencing documentation dated 8 July 2025.

19. Clause 6.2 provides that development consent must not be granted in this urban release area unless a (relevant) development control plan has been prepared. The parties advise that Wollongong Development Control Plan 2009 contains Chapter D16 West Dapto Release Area, satisfying this requirement.

20. Clause 7.1 of WLEP is concerned with public utility infrastructure provision. Consent must not be granted unless the consent authority is satisfied that essential infrastructure is available or that adequate arrangements have been made to make that infrastructure available when required. The parties have indicated their agreement that all essential infrastructure is available or that adequate arrangements are in place. I am satisfied in respect of cl 7.1(2).

21. Clause 7.2 is concerned with natural resource sensitivity (biodiversity). The parties advise it applies to the DA because the site includes land mapped as natural resource sensitivity—biodiversity under WLEP. Clause 7.2 brings a requirement for findings of satisfaction relating to certain matters. In particular, under subcl 7.2(4), development consent must not be granted without findings of satisfaction on the part of the consent authority that the development is consistent with the objectives of the clause and that:

(a) the development is designed, sited and managed to avoid potential adverse environmental impact, or

(b) if a potential adverse environmental impact cannot be avoided, the development—

(i) is designed and sited so as to have minimum adverse environmental impact, and

(ii) incorporates effective measures so as to have minimal adverse environmental impact, and

(iii) mitigates any residual adverse environmental impact through the restoration of any existing disturbed or modified area on the site.

22. The objective of cl 7.2 is as follows:

The objective of this clause is to protect, maintain or improve the diversity and condition of the native vegetation and habitat, including—

(a) protecting biological diversity of native flora and fauna, and

(b) protecting the ecological processes necessary for their continued existence, and

(c) encouraging the recovery of threatened species, communities, populations and their habitats.

23. The parties advise that the proposal is consistent with the particular provisions at cl 7.2(4), including the clause objectives, because (JS par 89):

“…the DA is supported by a BDAR (tab 7 of class 1 application) and Vegetation Management Report (tab 8 of class 1 application) and the proposed subdivision layout has been designed primarily to avoid impacts and then to minimise. Ecosystem and species credits are required to offset impacts as a management response. The Proposal will not result in a significant adverse impact on threatened species, communities, populations and their habitats as per the conclusions in the BDAR. Accordingly, the Court can be satisfied that clause 7.2 has been satisfied.”

24. Having regard to the BDAR, intended VMP implementation and the advice of the parties, I am satisfied that each of the requirements of cl 7.4(4) of WLEP are satisfied.

25. Clause 7.8 (concerned with Illawarra Escarpment area conservation) provides at subcl 7.8(3) that development consent must not be granted "on land to which this clause applies unless the consent authority is satisfied that the development-

(a) will be located so as to minimise any adverse impact on the natural features and environment of the Illawarra Escarpment, and

(b) will incorporate on the land, conservation and rehabilitation measures to enhance the Illawarra Escarpment."

26. A portion of the site is mapped as being Illawarra Escarpment area. The parties advise that impact would be minimised, with the VMP considered to provide for an appropriately balanced outcome to satisfy the requirements of this clause. I accept this advice and am satisfied with respect to the relevant requirements of cl 7.8.

Other matters

Other provisions of s 4.15(1) of the Environmental Planning and Assessment Act 1979

27. I also note that throughout their agreed jurisdictional statement the parties refer to various other points of consideration to which they have attended, including Wollongong Development Control Plan 2009.

28. The parties have advised that the development application was notified to surrounding properties in accordance with requirements. The parties advise that two objecting submissions were received during the original notification and have been considered. There were no submissions to notification of the amendments.

Owner’s consent and lodgement

29. The parties advise that the application now meets requirements with respect to the consent of the owners of the land to which the development application relates.

Conclusion

30. With the above findings, I am satisfied that the jurisdictional prerequisites have been met, and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

31. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. Subsection 34(3)(b) of The LEC Act also requires me to “set out in writing the terms of the decision”. The final orders have this effect.

Notations

32. With respect to the amendments of the development application, the Court notes that the Respondent has agreed under cl 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) to the Applicant further amending Development Application No. DA23/596 to rely upon the following amended plans and documents:

33. Vegetation Management Plan prepared by Ecoplanning dated 23 June 2025, Version 5.0

34. BDAR prepared by Ecoplanning dated 16 April 2025, Version 2.0.

35. Landscape Concept Plan L01 Issue H dated 19 June 2025 prepared by Lindy Lean Landscape Architect

36. Landscape Concept Plan – Downstream Basin L02 Issue H dated 19 June 2025 prepared by Lindy Lean Landscape Architect

37. Landscape Details L03 Issue H dated 19 June 2025 prepared by Lindy Lean Landscape Architect

38. Landscape Details – Street Trees L04 Issue H dated 19 June 2025 prepared by Lindy Lean Landscape Architect

39. Existing Vegetation protection L05 Issue H dated 19 June 2025 prepared by Lindy Lean Landscape Architect

40. Concept Civil Works Plan prepared by Martens & Associates – dated 9 April 2025:

| Dwg No. | Rev | Dwg Title | | General | | PS01-A000 | M | Cover Sheet | | PS01-A010 | J | Layout Reference Plan | | PS01-A060 | A | Riparian Treatment Plan | | Construction Management Works | | PS01-B300 | H | Soil and Water Management Plan | | PS01-B310 | O | Soil and Water Management Details | | Earthworks | | PS01-C100 | L | Grading Plan – Layout 01 | | PS01-C101 | L | Grading Plan – Layout 02 | | PS01-C200 | F | Sheaffes Creek Longitudinal Section | | PS01-C201 | C | Sheaffes Creek Typical Sections | | PS01-C500 | K | Grading Cut & Fill Plan – Layout 01 | | PS01-C501 | J | Grading Cut & Fill Plan – Layout 02 | | Roadwork | | PS01-D100 | L | Roadworks Plan- Layout 01 | | PS01-D101 | L | Roadworks Plan – Layout 02 | | PS01- D200 | F | Proposed Road 1 (21 MRC01) Longitudinal & Typical Sections- Sheet 01 | | PS01 – D201 | G | Proposed Road 1 (21 MRC01) Longitudinal & Typical Sections- Sheet 02 | | PS01-D202 | G | Proposed Road 2 (21 MRC02) Longitudinal & Typical Sections- Sheet 01 | | PS01-D203 | G | Proposed Road 2 (21 MRC02) Longitudinal & Typical Sections- Sheet 02 | | PS01-204 | F | Proposed Road 3 (21-MRC03) Longitudinal and Typical Sections | | PS01-D205 | G | Paynes Road (21-MRC04) Longitudinal and Typical Sections – Sheet 01 | | PS01-D206 | F | Paynes Road (21-MRC04) Longitudinal and Typical Sections – Sheet 02 | | PS01-D207 | F | Farm Road (21 MRC05) Longitudinal and Typical Sections | | PS01-D208 | C | Proposed Shared Pth / RFS Access (21-MRSP01) Longitudinal and Typical Sections | | PS01-D209 | B | Paynes Road (21-MRC04) Longitudinal and Typical Sections – Sheet 02 | | Drainage Works | | PS01-E100 | I | Drainage Plan – Layout 01 | | PS01-E101 | I | Drainage Plan – Layout 02 | | PS01-E200 | E | Southern Onsite Detention Basin and Bioretention Basin Details | | PS01- E201 | F | Northern On-Site Detention Basin Details – Sheet 01 | | PS01-E202 | C | Northern On-Site Detention Basin Details – Sheet 02 | | PS01-E203 | B | Northern On-Site Detention Basin Details – Sheet 03 | | PS01-E600 | G | Drains and Catchment Plan and Details | | PS01-E601 | C | DRAINS Model and Results | | PS01-E700 | F | MUSIC Catchment Plan and Results |

Orders

33. The Court orders that:

34. The appeal is upheld.

35. Development consent is granted to Development Application No. DA23/596 for the demolition of existing structures, dam dewatering, removal of vegetation, remediation, civil and stormwater works, landscaping, environmental protection works, 86 lot Torrens title subdivision and land dedication at 70 Paynes Road, Stream Hill subject to the conditions set out in Annexure A.

P Walsh

Commissioner of the Court

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Annexure A (2.72 MB, pdf)