M Milevski & T Milevski; v Wollongong City Council

Texts Cited: NSW Government, Planning for Bush Fire Protection, November 2019
NSW Environmental Protection Authority, Acid Sulfate Soils Manual, August 1998
Wollongong City Council Community Participation Plan 2022

Category: Principal judgment

Parties: M Milevski & T Milevski (Applicant)
Wollongong City Council (Respondent)

Representation: Counsel:
M Seymour SC (Applicant)
N Eastman SC (Respondent)
Solicitors:
Mills Oakley Lawyers (Applicant)
Wollongong City Council (Respondent)

File Number(s): 2024/362239

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of Development Application DA-2024/211 lodged with Wollongong City Council on 21 March 2025.

2. The Concept Development Application DA-2024/211, as amended, seeks consent for a concept proposal for the staged development of the site as an industrial warehouse complex at 57 West Dapto Road, Kembla Grange, legally described as Lot 1001 DP 1192327. Specifically, the Concept Development Application (DA) seeks consent for:

3. Stage 1 detailed proposed development including physical works for:

(a) Carrying out of earthworks including cut and fill as well as the importation of fill; (b) Treatment of acid sulfate soils; (c) Implementation of a Vegetation Management Plan; (d) Civil works including culvert construction under West Dapto Road; and (e) Construction of retaining walls.

2. Stage 2 concept approval via a ‘Precinct Development Strategy’ for:

(a) Building envelopes for three light industrial warehouses; (b) Car parking and road access; (c) Further riparian vegetation management; and (d) Associated landscaping and civil drainage works.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties on 15 October 2025 following a hearing on 13 and 14 October that was vacated as the parties had reached agreement. I presided over the hearing and the conciliation conference.

4. Pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), Wollongong City Council has approved amending the DA in accordance with the amended plans.

5. As the amended DA is the subject of Court proceedings, it is not required to be lodged on the NSW Planning Portal pursuant to s 38(4) of the EPA Regulation.

6. On 15 October 2025, the parties submitted 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 development consent to the amended DA, and subject to conditions in Annexure A.

Jurisdictional Prerequisites

7. The signed agreement is supported by a Jurisdictional Note from the parties, that sets out the jurisdictional prerequisites that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act.

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

9. For the reasons set out below, 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.

Owner’s consent

10. I accept the parties’ agreement that the amended DA was lodged with the consent of the owners of the land to which the development relates, including Wollongong City Council in regard to the proposed works within the West Dapto Road reserve.

Zoning and permissibility

11. The proposed development is permissible with consent in the E4 General Industrial zone and consistent with the objectives of the zone under the Wollongong Local Environmental Plan 2009 (WLEP).

Public notification

12. The original DA was notified in accordance with the Wollongong City Council Community Participation Plan 2022 between 2 April 2025 and 2 May 2025. No submissions were received during the notification period.

13. The amended DA was re-notified between 7 August 2025 and 21 August 2025. Once submission was received raising concerns about the potential impacts of the proposed development on biodiversity values, which have been addressed by an additional flora and fauna assessment prepared by Biosis and dated 26 September 2025.

Water Management Act 2000 (NSW)

14. The DA is integrated development under s 4.46 of the EPA Act, as it seeks consent for a controlled activity approval under s 91(2) of the W**ater Management Act 2000 (NSW) being for works on waterfront land (being land within 40m of a mapped watercourse).

15. The Department of Planning and Environment - Water issued general terms of approval on 25 August 2025. In accordance with s 4.47(3) of the EPA Act, the parties agree and I accept that the conditions of consent at Annexure A are consistent with the general terms of approval proposed to be granted by the relevant approval body in relation to the development.

Rural Fires Act 1997 (NSW)

16. Pursuant to s 4.14 of the EPA Act, development consent cannot be granted for the carrying out of development for any purpose (other than that permitted under s 100B of the R**ural Fires Act 1997 (NSW) on bush fire prone land unless the consent authority:

(a) is satisfied that the development conforms to the relevant specifications and requirements found within the Planning for Bush Fire Protection 2019 prepared by the NSW Rural Fire Service; or (b) has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements.

17. The NSW Rural Fire Service issued a determination letter dated 27 August 2025 in respect of the DA, including general conditions to ensure compliance with the Planning for Bush Fire Protection 2019. The parties agree and I accept that the recommended conditions are reflected within the conditions of consent at Annexure A.

State Environmental Planning Policy (Transport and Infrastructure) 2021

18. Given the proximity of the proposed development to an exposed overhead electricity power line (s 2.48), a gas pipeline (s 2.77), and a railway level crossing (s 2.97), the consent authority is required to notify the applicable infrastructure authorities and take into consideration their response.

19. In this case, the parties agree and I accept that the notification requirements have been satisfied and the responses from these authorities addressed through changes to the proposed development and in the conditions of consent in Annexure A.

State Environmental Planning Policy (Resilience and Hazards) 2021

20. Section 4.6 of the Resilience and Hazards SEPP requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.

21. In this case, there is an existing landscape materials depot known as ‘Dapto Sands and Supersoils’ on the site. A Stage 1 Preliminary Site Investigation for the site prepared by Douglas Partners and dated 8 August 2025 accompanied the DA. The investigation confirms that the site is suitable for the continuing use and for the proposed light industrial use.

22. Accordingly, the parties agree and I am satisfied that contamination has been adequately considered and the site is suitable for the proposed use in accordance with s 4.6 of the Resilience and Hazards SEPP.

Wollongong Local Environmental Plan 2009

23. The parties agree, and I am satisfied that, pursuant to cl 4.3 of the WLEP – Height of Buildings - the three warehouses proposed as part of the Concept DA are capable of complying with the maximum building height of 9 metres.

24. The parties agree, and I am satisfied that, pursuant to cl 4.4 of the WLEP – Floor Space Ratio - the three warehouses proposed as part of the Concept DA would result in a Floor Space Ratio (FSR) of 0.14:1 which complies with the maximum FSR of 0.5:1.

25. The parties agree, and I am satisfied that, pursuant to cl 5.10 of the WLEP - Heritage Conservation - the site is not identified as a heritage item nor is it situated within a Heritage Conservation Area.

26. Pursuant to cl 5.21 of the WLEP – Flood Planning - the site is identified as being within a flood prone area. The consent authority must not grant consent to a development unless it is satisfied that the matters in cl 5.21 have been adequately addressed. The parties agree, and I am satisfied that the requirements of this clause have been adequately addressed in the Water Cycle Management Report prepared by Maker Consulting Services dated 18 July 2025 and the conditions of consent in Annexure A.

27. Clause 5.22 of the WLEP - Special Flood Considerations - provides that development consent must not be granted to the development unless the consent authority has considered the matters under cl 5.22(3)(a) to (c). However, in this case, the parties agree, and I am satisfied that this clause does not apply. This is because the DA is not for development for the purpose of a ‘sensitive and hazardous development’, as defined at cl 5.22(5). Pursuant to cl 5.22(2)(b), the site is also not land that ‘in the event of a flood may cause a particular risk to life and require the evacuation of people or other safety considerations’ due to the nature of the existing and proposed land use and the ‘shelter in place’ opportunities on the site.

28. Pursuant to cl 6.1 of the WLEP – Development Control Plan – the site is located within the West Dapto Urban Release Area and hence a development control plan (DCP) is required to be prepared for the land that addresses the matters in cl 6.2(3). However, pursuant to s 4.23(2) of the EPA Act, the parties agree, and I am satisfied that the making and approval of the concept DA can be considered as an alternative to the preparation of a DCP. In particular, the Applicant has prepared an Amended Precinct Development Strategy which addresses all the requirements of cl 6.2 of the WLEP.

29. Pursuant to cl 7.1 of the WLEP – Public Utility Infrastructure - the consent authority must be satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required. The parties agree, and I am satisfied that the requirements of this clause have been adequately addressed in the Concept Development Application Servicing Plan prepared by Maker Consulting Services and dated 2 September 2025.

30. Pursuant to cl 7.4 of the WLEP – Riparian Lands - development consent must not be granted for development on land to which this clause applies unless the consent authority has considered the impact of the proposed development on the land and any opportunities for rehabilitation of aquatic and riparian vegetation and habitat on that land. The parties agree, and I accept that Amended Vegetation Management Plan (VMP) prepared by EcoPlanning and dated 30 April 2025 demonstrates the impact of the proposed development on the land and incorporated through the VMP opportunities for rehabilitation of aquatic and riparian vegetation and habitat on that land.

31. Pursuant to cl 7.5 of the WLEP – Acid Sulfate Soils - development consent must not be granted under this clause for the carrying out of works unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual 1998 and has been provided to the consent authority. The parties agree, and I accept that the Acid Sulfate Soils Management Plan prepared by Douglas Partners and dated 15 September 2025 adequately addresses this requirement.

32. Pursuant to cl 7.6 of the WLEP – Earthworks - before granting development consent for earthworks, the consent authority must consider a range of matters relating to the environmental and amenity impacts of the proposed earthworks. The parties agree, and I accept that the relevant matters under this clause have been adequately addressed in the Earthworks Compliance Assessment prepared by Maker Consulting Services and dated 24 September 2025.

Section 4.15 of the EPA Act

33. I am satisfied that the mandatory matters in s 4.15 of the EPA Act that are of relevance to the amended Development Application have been taken into consideration by the parties, including the environmental, social and economic impacts in the locality, the suitability of the site and the public interest.

Conclusion

34. Based on the Jurisdictional Note, the documents that accompany the Class 1 Application, and the documents referred to in Annexure A, 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.

35. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

36. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act.

Orders

37. The Court orders:

38. The appeal is upheld.

39. Development consent is granted to DA-2024/211 for the concept development application for the staged development of an industrial warehouse complex including physical works under stage 1 and concept works for stage 2, at 57 and 66 West Dapto Road, Kembla Grange, subject to the conditions of consent annexed and marked Annexure A.

M Young

Acting Commissioner of the Court

Annexure A (2.46 MB, pdf)

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