Mossy Point Investments Pty Ltd v Eurobodalla Shire Council

Catchwords: APPEAL — development application — alterations and additions to existing hotel and golf course, creation of a tourism and recreation precinct, subdivision for 76 single dwelling residential lots and one lot for multi-dwelling housing — bushfire risk — whether compliance with general terms of approval relating to bushfire — secondary emergency evacuation route — experts satisfied in relation to ecology, flooding, hydrogeology contentions – considerable lay objections

Legislation Cited: Biodiversity Conservation Act 2016 (NSW), ss 7.4, 7.7
Environmental Planning and Assessment Act 1979 (NSW), ss 4.46, 4.47, 8.7, 8.15, 10.3
Land and Environment Court Act 1979 (NSW), s 39
National Parks and Wildlife Act 1974 (NSW), s 90
Roads Act 1993 (NSW), s 138
Rural Fires Act 1997 (NSW), ss 22, 29, 62, 100
Environmental Planning and Assessment Regulation 2000 (NSW), cl 55
Eurobodalla Local Environmental Plan 2022, Sch 1, cll 2.6, 2.7, 5.21, 6.3, 6.4, 6.7, 6.8, 6.9, 6.17
State Environmental Planning Policy (Primary Production) 2021, ss 2.27, 2.29
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.10, 2.11, 2.12, 4.6
Uniform Civil Procedure Rules 2005 (NSW), Sch 7

Cases Cited: BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [(2004]) NSWLEC 399
New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154
Telstra Corporation Ltd v Hornsby Shire Council (2006) NSWLEC 133 ; [2006] 146 LGERA 10; ([2006)] 267 NSWLR 256; [2006] NSWLEC 133

Texts Cited: NSW Rural Fire Service, Planning for Bush Fire Protection (November 2019)

Category: Principal judgment

Parties: Mossy Point Investments Pty Ltd (Applicant)
Eurobodalla Shire Council (Respondent)

Representation: Counsel:
M Staunton (Applicant)
M Astill (Respondent)
Solicitors:
Dentons (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s): 2024/183498

Publication restriction: Nil

Judgment

1. COMMISSIONER: These proceedings, brought by the applicant under Class 1 of the Court’s jurisdiction, relate to an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal by Eurobodalla Shire Council (Council) of development application number DA 0272/21 (DA) seeking consent for a mixed use development on land known as 340-342 Old Mossy Point Road, Jeremadra, and certain adjacent land (site). The site is occupied by a hotel and tourist facility known as The Oaks Ranch.

Site and context

2. The site has an area of about 108ha, is irregular in shape, and involves the following parcels: Lot 2 DP 63437, Lot 1 DP 1040724, Lot 11 DP 1039319, Lot 39 DP 1213519, Lot 45 DP 1272424.

3. The site has a long boundary to the Tomaga River to the north and north-east. It also faces Candlagan Creek to the south. The highest elevation is 22.5 metres (m) Australian Height Datum around the centre of the site, sloping down to the waterways north and south.

4. The existing facility includes a function centre, outdoor swimming pool, manager’s residence, some 14 accommodation units within two main structures, service buildings, maintenance sheds and a nine hole golf course. The areas occupied by the tourist facility have been subject to vegetation clearing but large portions of the larger site remain wooded. The site includes bushfire prone land. Certain areas of the site are also identified as flood prone. There are a number of other planning considerations relating to the land which arise below.

Figure 1 Site and environs

5. The site adjoins a large rural property to the west (Lot 1 DP63437), and an established large-lot residential estate to the east, known as Estuary Estate. Other parcels in the immediate site environs are predominately large rural lots to the west and large lot residential developments to the east. Further afield, the coastal township of Mossy Point is located about 2km to the south-east of the site.

Zoning and site land use controls

6. A number of different land use zones affect the site under Eurobodalla Local Environmental Plan 2012 (ELEP), including: (a) SP3 – Tourist, (b) RE2 – Private Recreation, (c) RU1 – Primary Production, (d) R5 – Large Lot Residential and (e) C2 – Environmental Conservation.

Figure 2 – Zoning (part site)

7. There are two sections of RE2 land, one towards the north of the site and one in the south-east (beyond the bounds of Figure 2). The SP3 land is central and includes the existing resort area and the golf course. The RU1 land is mostly towards the south and west. The C2 land is at the northern and southern extremities of the site in the environs of Tomaga River and Candlagan Creek.

8. Of particular significance with respect to the question of permissibility is that a portion of the site is identified in cl 15 of Sch 1 of ELEP (with respect to “Additional permitted uses”) as follows:

15 Use of certain land at Old Mossy Point Road, Mossy Point

(1) This clause applies to land at Old Mossy Point Road, Mossy Point, being Lot 1, DP 1040724.

(2) Development for the purposes of residential accommodation, consisting of no more than 90 dwellings, is permitted with development consent.

9. The identified Lot 1 DP 1040724 (in the above provision) includes and comprises land east, west and south of the existing tourist accommodation. It extends as far as the southern boundary of the site along Candlagan Creek.

Proposal

10. The DA was originally lodged on 17 November 2020 and has been subject to a number of amendments. The description of the development indicated in an agreed aspect of draft consent conditions is as follows:

“Alterations and additions to the existing 14-room hotel (including adding 9 rooms, enlarging the function room), Community Title subdivision, creating a Tourism and Recreation development including relocation of the existing 9-hole golf course, construction of a golf Club House and convenience store/bistro, tennis courts, maintenance facility buildings, day spa, parking areas, internal roads and paths and associated civil works and landscaping, the creation of a Residential Precinct, subdivision for 76 single dwelling residential lots and one lot for multi-dwelling housing, and associated subdivision works including secondary emergency egress and utility infrastructure.”

11. Among the factors not specifically indicated in this description, but nonetheless notable elements of the proposal (as amended), include: the raising of certain areas of the site via landfill (in particular the relocated golf course) and certain off-site road and pathway works.

12. In relation to amendment formalities, I mention that it was during the course of the hearing proceedings on 16 June 2025, that the applicant made the final application to further amend the DA. This amendment application was essentially concerned with the landfill aspects introduced above and consequential changes. They were documented in a bundle filed with the Court on 28 May 2025. Exercising the Court’s powers under s 39(2) of the EPA Act, this application to further amend was agreed, these orders are recorded below, including orders as to costs under s 8.15(3) of the EPA Act.

Issues

Background

13. The totality of the amendments to the proposal brought about a position whereby generally the expert evidence (that is, experts across the relevant disciplines called by each of the applicant and Council) found that each of Council’s contentions as to why the DA should be refused had been satisfactorily addressed, subject to consent conditions. Some differences in relation to bushfire risk management are explained below.

14. Issues remain for the Court’s evaluation in this judgement, nonetheless. These can be synthesised into three themes. The first relates to issues raised in lay submissions. The second concerns jurisdictional considerations, and the like, most contentiously with respect to the topic of bushfire. The third is in relation to a limited number of disputed conditions of consent. I will deal with these three themes in turn now.

Lay submissions

15. This proposal was subject to a large number of objections from lay persons, which have been drawn to the Court’s attention. Objections were raised each time the amendments to the proposal were notified including with: (1) the original notification of the proposal in 2021, (2) a notification of the amended application between 8 November and 5 December 2024, (3) following notification between 27 February to 27 March 2025, (4) oral submissions made to the Court during the hearing on 8 April 2024, and (5) after notification of the final amendments between 30 May and 13 June 2025. I also heard objections at the commencement of a conciliation conference held on-site on 5 September 2024. It is fair to say that the objecting submissions have already resulted in substantial changes to the proposal, when compared to that originally lodged.

16. The consideration of lay submissions as a factor in the evaluation of development applications is a common consideration in this Court and a matter which has been well investigated in the case law. The essential point would be that lay objections of this kind can be supportive to the case being argued by objectors to the extent that the concerns raised are based on rational or justifiable foundations, rather than unjustified fears: Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133 at [192] – [195], New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 (‘New Century Developments*’*) at [61]).

17. New Century Developments points to a need for discernment in evaluation of lay evidence, and to seek objective substantiation (ie rather than “blindly accepting”) such evidence. A practical course to assist in verifying (or otherwise) the content of lay submissions is through evidence of the experts already giving sworn evidence or otherwise bound, under the Expert Witness Code of Conduct (Schedule 7- Uniform Civil Procedure Rules 2005 (NSW)). These experts are bound to assist the Court impartially. With this in mind, at times I referenced joint expert reports (JER) filed in the proceedings in my evaluation of lay submissions. At other times, I asked questions directly to these experts to assist my consideration of lay submissions.

18. Specific lay objections can be synthesised into the following topics:

19. Character compatibility with adjoining large lot residential neighbourhood and amenity impacts

20. Traffic related safety

21. Loss of mature trees in road reserve

22. More general land clearing and ecological considerations

23. Bushfire safety, especially emergency evacuation access

24. Access and culvert flooding concerns for certain parcels

25. Construction stage impacts.

Character compatibility

19. The site shares much of its eastern boundary with the large lot residential estate known as the Estuary Estate. A number of properties off Stony Creek Lane and to a lesser extent Clearwater Terrace are located immediately adjacent to proposed housing areas. Objecting submissions argued that the Estuary Estate was a carefully planned area with which residents were proud. Concerns included the loss of rural outlook from these existing properties, which would be replaced with “dense housing”, increased traffic and associated noise would ruin the tranquillity and privacy offered within the estate. The relationship was seen to be incompatible.

20. Generally, there is no dispute that the proposal is permissible with consent under the relevant planning provisions. Tourism infrastructure is permissible within the SP2 Tourist zone. The fact of cl 15 of Sch 1 of ELEP (ie the additional permitted use provisions) is suggestive of a setting where residential accommodation (“consisting of no more than 90 dwellings”) might also occur. A proviso is that this be subject to acceptable environmental impacts (in consideration somewhat at least of BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [117]-[119]). Clause 15 of Sch 1 of the ELEP acts against the suggestion that the setting to the west of the Estuary Estate might essentially retain an outlook of rural ambience. I also note the expert town planning advice to the Court (J Clague called by the applicant and S O’Conner called by Council) indicated a general satisfaction with the relationship of the proposal to Estuary Estate. Two mitigative elements seemed to be important here: (1) the fact that it is the larger lot residential subdivision that is proposed adjacent to the Estuary Estate interface (minimum proposed lot sizes of around 1800m2), and (2) the fact of a vegetated buffer, 15m wide, along the immediate boundary interface. Recognising the proposal permissibility and the interface design response, I accept this expert advice with respect to the character compatibility question so far as it goes, but also note that some of the points examined below also go to the question of character.

Traffic related safety

21. Points of concern included that traffic generation and its implications had been under-estimated, uncertainty as to what actual improvements were intended and when, and the adequacy of these improvements.

22. In regard to technical questions relating to the adequacy of the traffic research and findings, it is appropriate to rely on the evidence of the traffic experts appointed to provide expert evidence (S Christley called by the applicant and J Rudd called by Council). Two expert reports were prepared (subsequent to further traffic surveys during high season), culminating in agreed findings that traffic generation assumptions are conservatively high and represent a worst-case scenario. It was also agreed that the proposed widening and shared path provisions along Estuary Way and Clearwater Terrace (as detailed in the amended DA plans) are satisfactory for the proposed development. George Bass Drive, as a higher order road, was also seen to be adequate to accommodate proposal traffic. In regard to timing, it was agreed that (Traffic JER Addendum, 9 April 2025, par 14):

“… the road upgrade works to Estuary Way and Clearwater Terrace shall be undertaken when development of the site will result in traffic flows along Estuary Way and Clearwater Drive to exceed 1,000 vehicles per day.”

23. This 1000 vehicle threshold apparently relates to Council’s Infrastructure Design Standard (Town Planning JER, Second Addendum filed 15 June 2025 p 5).

24. The expert evidence, and the technical analytics behind it, would be favoured over lay submissions in relation to these points.

25. There was a dispute between the parties as to when the proposed share (pedestrian cycle) path should be constructed. This is considered below, commencing at [93].

Loss of mature trees within existing Council road reservation

26. Certain existing mature trees would be removed to enable the upgraded infrastructure in the road reservation (eg specified road widening works, bus bay and shared pathway works). The particulars are documented in the Preliminary Arboricultural Impact Assessment prepared by Bloom Consulting Services dated 23 October 2024 and the Addendum letter prepared by Bloom Consulting Services dated 17 March 2025 and civil engineering drawings (Rygate and West 17 and 20 March 2025). I also note that the amended Biodiversity Assessment Report prepared by Eco Logical Australia dated 17 March 2025 (BDAR) has taken account of road reservation tree loss. Arborist advice is that the changes to civil works (widening of shared pathway and inclusion of bus stop) would not affect the Trees 178 and 234 of importance in the BDAR (Bloom Consulting Services 17 March 2025 p 2).

27. The planning experts advise that civil works in the existing road reserve have been designed with the benefit of the specialist arboricultural advice to minimise the number of trees that will be removed as a consequence of the road upgrades. Nevertheless, the tree loss is significant in amenity terms. On balance, I am satisfied that this loss is reasonable in the whole of the circumstances, especially given conditions requiring replacement of any trees removed as a result of the upgrade works (Condition 69) with details to be resolved at Council road works approval under s 138 of the Roads Act 1993 (NSW).

Land clearing and ecological considerations

28. According to lay submissions, the proposed native tree removal, including hollow bearing trees, was unsound and at odds with this seaside area which is characterised as a bushland setting with abundant wildlife. Publicly available citizen evidence indicated several threatened and endangered species in the locality. Nature tourism is also a very significant part of the local economy.

29. The ecological implications of proposed land clearing including vegetation removal has been considered extensively in expert evidence. I note the experts providing evidence in the proceedings included R Smithers and D Cumings (called by the applicant) and D Robertson (called by the Council). Their expert reports were as follows Ecology JER filed 27 February 2025, Supplementary Ecology JER filed 9 April 2025. I have already referenced the amended BDAR prepared by Eco Logical Australia which was scrutinised by Dr Robinson. As explained below when ecology implications are examined more particularly (from [66]), the ecology experts in this matter are satisfied with the amended scheme. Apart from design and management particulars, a considerable positive feature of the proposal in regard to this topic is that some 60% of the site would be conserved in perpetuity and actively managed as a means of directly supporting ecology-related conservation.

Bushfire safety

30. A particular concern raised in objecting submissions was evacuation access during a bushfire emergency. According to submissions, the proposed secondary evacuation access (via a proposed path of travel along the boundary of 12 Stony Creek Lane (Lot 39 DP 1213519) at the northern end of Clearwater Terrace) would still quickly end up on Clearwater Terrace and Estuary Way. These roads would be crowded with traffic in the event of fire or another emergency. A detailed consideration of bushfire safety commences at [36]. Briefly here, the evidence from the experienced bushfire experts (G Douglas called by the applicant and G Swain called by Council) is entirely supportive of the proposed secondary emergency evacuation access.

Access and culvert flooding concerns for certain parcels

31. Concerns were raised about the implications for the road upgrade works on access to 11, 11A, 11B and 11C Clearwater Terrace (opposite Estuary Way). Flooding of a local culvert was also raised. Such matters of detail would be expected to be addressed with s 138 of the Roads Act approval and the Construction Traffic Management Plan (CTMP) (see eg proposed Condition 54B(i)).

Construction stage impacts

32. In regard to construction traffic, the traffic experts agreed that there is sufficient capacity in the current road network to satisfactorily accommodate three construction truck traffic movements per hour. In addition, these experts noted that a detailed CTMP would be required and need to be approved by Council prior to the commencement of construction activities. The CTMP would address the timing of each stage of works, estimated construction vehicle generation, road capacity network assessment and proposed mitigation/ management measures.

33. Insofar as construction noise is concerned, the key concern is also construction traffic related. An acoustic analysis of off-site construction traffic noise has been undertaken (Noise Assessment Renzo Tonin and Associated 27 May 2025 (Tonin Report)). This work is mindful of the submitted CTMP which indicates the range of vehicles expected to be involved in construction efforts (SCT Consulting 23 May 2025). The Tonin Report (p13) models predicted LAeq,15hr noise level at receivers from construction traffic would be 45dBA which is less than the EPA RNP criterion of 60dBA. The further particulars of construction traffic management staging, including scheduling of heavy vehicles to generally meet the modelling in the acoustic report would be appropriately resolved with the updated CTMP to be submitted and approved by Council as per proposed Condition 54B.

Conclusion lay submission

34. As indicated above, and generally consistent with the findings of the relevant experts, it is my view that the proposal and the proposed consent conditions, adequately respond to the range of issues raised in lay submissions.

Statutory and related considerations

35. The applicant provided written submissions in relation to statutory and related considerations on the final day of the hearing. Two documents were provided to the Court, titled as follows: (1) Applicant's Outline of Submissions on Bushfire Contention (AOSBC) which unsurprisingly focuses particularly on bushfire related matters, and (2) Jurisdictional Provisions Table (JPT) which referenced relevant jurisdictional provisions and cross-referenced evidence before the Court in relation to each. It is noteworthy that Council advised that it saw nothing it needed to correct with regard to this material (Tcpt, 16 June 2025, p 31(25)).

Bushfire risk related considerations

Background

36. The site includes bush fire prone land under s 10.3 of the EPA Act (Bushfire JER dated 21 February 2025 (Bushfire JER)). The Bushfire JER (p5) reproduces a map of the bushfire prone land on the site and its environs. It shows a significant portion of the site as bushfire prone land but, mostly, other than Vegetation Category 1 (the highest risk category). This is so especially in the environs of the development precinct within the larger site. The map shows the land to the west of the site is dominated by Vegetation Category 1. This is of interest in relation to Rural Fire Service (RFS) commentary on the proposal discussed below.

37. Under s 100B of the Rural Fires Act 1997 (NSW) (RF Act), a person must obtain a bush fire safety authority from RFS before developing bush fire prone land for residential or rural residential purposes or for a special fire protection purpose (SFPP). The proposal involves both of these development types (tourist development is a SFPP).

38. In regard to this, general terms of approval (GTAs), relating to integrated development provisions under s 4.46 of the EPA Act, were sought with respect to the proposal from the RFS. The RFS issued GTAs on 21 November 2021, when formally notified about the original proposal. In its GTAs, the RFS had indicated that prior to subdivision, “secondary access” should be established across adjacent land to the west of the site to Old Mossy Point Road, which connects to the Princes Highway. In submissions, the applicant referenced this RFS access proposal as the western access road (WAR) a term I will use henceforth. Construction specifications for the WAR were detailed in the GTAs issued by RFS. It was also indicated in evidence by Mr Swain that RFS required the WAR "to be formalised by way of an easement over the land" (Bushfire JER par 30).

39. It is noteworthy that a western access track to Old Mossy Point Road already exists across an historical parcel described in AOSBC (p1) as “Lot 10”, which is not in the ownership of the adjoining land to the west of the site (Lot 1 DP63437). This is an informal access and there is no right of way provided to the applicant. It is noteworthy that the owners of Lot 1 DP63437 made clear that they were unsupportive of the development site and proposed use having access rights across their land.

40. My interpretation is that with the GTAs issued on 21 November 2021, RFS was interested in the WAR playing both an operational access function (say to facilitate RFS operations to reduce fire risk) and as a secondary emergency evacuation route for lay persons. For example, a letter from RFS of 18 May 2021 had indicated the WAR as a requirement relating to the need for a secondary access under the RFS publication: Planning for Bush Fire Protection (November 2019) (PBP).

41. Most recently, an email from the RFS dated 7 April 2025 indicated a requirement for “operational access to the Princes Highway to the west be included as part of any approval” and that “this access should be secured for the life of the development”. The relevant content of the email is as follows (Second Bushfire JER par 30):

“The NSW RFS has consistently emphasized the need for operational access, at a minimum, to be provided via the Princes Highway to the west. This requirement is based on several factors:

• Scope of the proposed development involving a significant increase in density

• Vulnerability of some occupants of the development (e.g. special fire protection purpose – tourist)

• Risk profile of the site

• Constraints within the surrounding access network.

In our opinion the broader access road network necessitates travel through an existing rural residential area, with single access point to George Bass Drive. Additionally, George Bass Drive is subject to bridge crossings (creating pinch points) both to the north and south, both located within 600 metres of the access point back onto George Bass Drive.

The RFS believes that the proposed secondary access, located between two existing dwellings along Stoney Creek Lane may not adequately address the intent for access requirements in Planning for Bushfire Protection 2019. Consequently, we maintain that operational access to the Princes Highway to the west be included as part of any approval. This access should be secured for the life of the development.”

42. The final evidentiary point to raise here is that the bushfire experts agree that based on the (Revised) Bush Fire Assessment Report, prepared by Travers Bushfire and Ecology (TBE), and dated 10 February 2025, the proposal now before the Court satisfies the requirements of PBP. Various bushfire protection measures are proposed within a bushfire management plan which satisfy the experts in that respect. The alternative secondary emergency evacuation route (to the WAR) is proposed (see [30]) which satisfied the experts.

There is power to determine the appeal whether or not in accordance with GTAs

43. There is no dispute that under s 39(6)(a) of the Land and Environment Court Act 1979 (NSW) (LEC Act), the Court has power to determine the appeal whether or not in accordance with these GTAs. In this section of the judgement, the reasonableness of this course is considered.

Substance of the issues before me relating to bushfire risk management

44. There are two interrelated matters for consideration here. The first is the direct concern raised by RFS and relating to a formalisation of the WAR, in one way or another (ie for operational access purposes and/or emergency evacuation purposes and say involving a right of carriageway or similar). The second is the general reasonableness of the proposal in relation to bushfire risk and especially in relation to emergency evacuation beyond the site environs.

Whether there is justification for a requirement for formalisation of the western access route and that it be secured for the life of the development

45. PBP requires two emergency evacuation routes for the proposal. The expert evidence is clear that there is no reasonable need to require the WAR as the secondary emergency evacuation route. Dr Douglas in particular, and with general agreement from Mr Swain (Second Bushfire JER dated 9 April 2025 par 32), indicates the WAR path of evacuation as part of the site’s bushfire management protocols under PBP, westwards from the site, through “highly vegetated” Category 1 forest vegetation would bring about an unacceptable risk during a fire event. Both experts indicate that the requirements for a secondary evacuation route for the proposal, under PBP, are satisfied with the proposed alternate emergency access provided to the east via an easement over 12 Stony Creek Lane. I accept this advice of the experts including that the current proposed secondary evacuation route via Stoney Creek Lane is superior to a secondary evacuation route involving the WAR as apparently approved under an RFS Bushfire Safety Authority (see comments from Mr Swain Second Bushfire JER par 32).

46. While I accept that the proposal does not generate a need for the WAR as an emergency access route under the DA’s bushfire management protocols under PBP, I sought further particulars from the experts and parties on the RFS commentary relating to operational access, including the need for this to be formalised or “secured for the life of the development”.

47. Dr Douglas indicated that the RFS already has such operational access along the existing western access track pursuant to powers under s 22 and s 29 of the RF Act (Ex 10 pars 17 to 24). This was essentially agreed by Mr Swain (Tcpt, 10 April 2025, p 37(39)). Dr Douglas also saw the physical access as reasonable for operational purposes (Bushfire JER par 54):

“…there are no works proposed for the western access route or other means of traversing to the west. The existing road meets Councils standards for rural roads and is sealed for much of its length to Onslow Close where it becomes a gravel road. An inspection of the road indicates it can readily permit a RFS Category 1 tanker and if required a bulk water tanker along its route. RFS tankers have accessed Old Mossy Point Road on previous occasions.”

48. This was again not contested by Mr Swain.

49. In addition, when I had these expert witnesses before me, I asked them directly if they had any understanding of instances (or particular situations) where the requirement indicated in the RFS letter (relating to both the points of (1) operational access to the west, and (2) that it be “secured for the life of the development”) may be necessary. I think both experts agreed that if there was, say, a public or formalised access existing now to the west this might be of some comparable assistance to RFS. But that this is not the present situation. Dr Douglas argued (Tcpt, 10 April 2025, p 37(12-19)):

“…The fire service can take anyone’s water at any time for any purpose. It has the same powers in relation to crossing land. It could cross that land and make - cut fences and enter the property any way it sought to do so if it was operationally necessary, and in this case, the advantage is they actually have a - a formed public road to a point, and then beyond that point, they actually have formed, if you like, informal road, a driveway, that takes you right to the boundary of the property. That is what we would normally refer to as operational access. “

50. Mr Swain indicated as follows (Tcpt, 10 April 2025, p 37(38-40)):

“… my take on the RFS’ requirement is that they - they want operational access, and I agree with Mr Douglas that - Dr Douglas that that’s there at the present moment.”

51. Both experts also acknowledged that there may be situations, albeit unlikely, given expected fire wind direction and vegetation characteristics, where in an emergency situation, it may be that RFS brigades determine that it may be suitable to manage the access of persons from the site to the west along the existing access track. But that this should not occur without involvement and active supervision by emergency services. The evidence, and legal submissions, were that there was also power for this to occur without the formalisation of a permanent right of access.

52. Further, in the course of the proceedings, I had asked the parties whether there was a legal process available to the applicant to secure the WAR in accordance with the request of RFS. In AOSBC (p1), it is indicated that:

“Both the Applicant and the adjoining owner have sought possession of the WAR however the Registrar General has refused both applications because of the competing interests.”

53. In AOSBC (p1), the applicant also indicates:

“Proceedings can be taken under either s40 of the LEC Act 1979 or s88K of the Conveyancing Act 1919 however to obtain an order the Applicant would have to demonstrate that the easement is reasonably necessary for the effective use or development of the land that will have the benefit of the easement. It would be difficult for the Applicant to meet this requirement in circumstances where the bushfire experts agree that the development complies with the provisions of PFBP, that the development has an appropriate secondary access and that the requirement derives from the RFS who seek operational access which they already have as a statutory right.”

54. As indicated previously, Council’s direct advice is that there is nothing arising in these points submitted by the applicant which it sees to warrant corrective comments.

55. In all of the circumstances, it seems to me unreasonable and unnecessary that there be a requirement on this development to formalise (and undertake physical works on) the WAR for operational access or as the secondary evacuation route as a component of the proposed development. It is unnecessary because: (1) operational access is there at the present moment and in a reasonable interpretation of the future (both physically and legally), noting that the western neighbour does not oppose use of the WAR for emergency purposes (Ex 10 par 23 and Ex 2 folio 170); and (2) there is a considerably safer secondary evacuation route proposed. It is unreasonable in that, as there is no legal or other practical pathway for formalising the WAR, such a requirement would cause the proposal to be unsupportable even though no apparent purpose would be served. In addition, I note that the applicant submits that if the RFS wishes to formalise the access there is a procedure available to it under s 62M of the RF Act.

56. That is not to say that there is not potential for the existing access track to be used from the west into the site (as occurred with the bushfires of New Year’s Eve in 2019 (Second Bushfire JER par 16) or as an alternative egress when evacuation is controlled by emergency services. But this situation is available at present and would be in the future under proposed conditions which include an RFS accessible locked gate system at the junction of the existing western access track and the site.

General bushfire risk including emergency evacuation beyond the site environs

57. As indicated previously, the experts agree that the proposal complies with PBP. There are extensive particulars on the proposed bushfire risk management strategy relating to the proposal which I do not need to go into here as they are uncontested. While I note for example the concerns raised in lay submissions about the proposed secondary access and the commentary from RFS (at [41]), these experts before me were entirely convinced that the proposed secondary access was satisfactory, with Mr Swain suggesting it during the course of the physical site inspection. It is reasonable and appropriate for me to give weight to the sworn evidence of these two experienced experts in regard to this technical field.

58. A further bushfire evacuation concern related to what the RFS described as the broader access road network (see [41]).

59. On this front I note that both bushfire and traffic experts agree that there is no “pinch point” at bridge crossings along George Bass Drive. For example, see the following from (Traffic Expert Joint Report – Addendum pars 24-25):

“(Mr Christley) states that:

a. The bridge crossings, north and south of the site, should not result in a pinch point constraint from a traffic operational perspective. The bridges have appropriate sight lines for vehicles, travel lanes of suitable width to support the theoretical road capacity, and supporting pedestrian facilities.

(Mr Rudd) states that regarding evacuation route capacity:

a. I agree with findings of the SCT traffic assessment (24 October 2024) regarding route capacity. However, I note that these capacities refer to theoretical flows under typical conditions.

b. Thus with regard to evacuation route capacity under bushfire evacuation conditions, I refer to the expertise of the bushfire experts.”

60. The bushfire experts agreed there was no pinch point (eg see Tcpt, 10 April 2025, p 35(10) for Mr Swain’s comment). Mr Swain described his concern as follows:

“… what happens in an emergency situation is people become - become disorientated, it’s chaotic, and I have an overarching concern that that may occur with people trying to get out of the - the site and to Tomakin. That’s - that’s - that’s in it - that’s it in a nutshell from my - my perspective.”

61. While I acknowledge and accept Mr Swain’s comments that in emergency situations people may become disoriented and things may become chaotic, I am not convinced that, in the circumstances of this case this is sufficient cause to see the proposal essentially fail on bushfire risk management grounds. While there would be an additional population on the site as a consequence of the development (up to 90 additional dwellings plus additional occupants of the tourist facilities plus additional staff), essentially, this is the planning ambition for the site under ELEP. Mindful of this, it is reasonable to perceive a public benefit in providing for the additional local housing and for the recreational and economic effects of the proposed tourist facilities. What is critical to this proposal is whether adequate evacuation management and, as needed, shelter in place arrangements can be set in place to, ultimately, allow for delivery of the planning intent for the site while providing adequately for bushfire risk safety management. Given the expert evidence, it is my conclusion that the proposal does propose this. Some further explanation follows.

62. Dr Douglas explained that while it was not common at DA stage, in this instance draft bushfire emergency evacuation plans (BEEPs) were prepared for the two distinct uses for review by the bushfire experts. There are separate BEEPs for residential and tourist uses. Various fire events trigger evacuation oriented actions under the BEEPs (eg Second Bushfire JER par 26). The tourist component provides for closure of the tourist facilities in the event that extreme or catastrophic fire danger warning is issued. That is, the risk associated with tourists unfamiliar with the road network would be managed by early evacuation. This seems quite feasible under direction of the tourism facility staffing and mindful that the tourists would not have the same concern as residents in relation to say their property assets and the scale of valuables to be protected.

63. While most residential areas on bushfire prone land would not have a BEEP, the residential component of the proposal would be a community title development which brings greater opportunity for managed familiarity with bushfire risk and implementation of a BEEP, including early evacuation for those willing; and orderly evacuation, generally, for those deciding or instructed to leave later. I generally accept the advice of Dr Douglas as follows:

“The site has an increase in density but is acceptable in terms of risk and complies with PBP. In general, relocation early by residents and visitors is supported, but on-site refuge should be an option if required.”

64. In respect to on-site refuge, should this be necessary, it is clear that the existing hotel in association with the adjacent cleared golf course has in the past provided this function; with evidence of the facility providing refuge for “many residents” from the west of the site on the morning of the 31 December 2021 fire (Second Bushfire JER par 16(c)). With the proposed development, the capacity for on-site fire risk management would increase with various provisions recommended by the bushfire experts (apart from asset protection zones and building standards under PBP). As outlined at pars 66-70 of the First Bushfire JER:

“The development is to be connected to the existing reticulated supply which is located on land off Clearwater Terrace and currently supplies the Clearwater Estate as well as Oaks Ranch. In addition, the site already holds a 100,000 litre of static water which will be made available and is easily accessible for fire fighting near the hotel. There are also two hydrants (fire protection system) located close to the hotel.

It is also noted that each dwelling/villa will require a 5000-litre water tank under the BASIX requirements. The bushfire experts believe this should be expanded to 10,000L with a 5,000-litre take off point to the dwelling with a fire hose reel supplied from the pump.

The Applicant has also proposed to establish a separate reticulated fire protection system (with hydrants) comprising a further on-site 400,000 litres of water which is reticulated to the front of all dwellings, villas and other facilities as a duplicated system. The experts agree that this should be extended to 500,000 litres and amended on the Engineering set.

The secondary reticulated fire protection water supply will need to have a generator back up system to ensure its effective operation in the event of power failure. This is identified on the Engineering Set at Sheets 27 (Rygate & West, 21/10/2024, revision 1).

Further, there is access to swimming pool water. All of these measures will also take pressure off the main reticulated system for the benefit of the broader Clearwater Estate. “

65. In the circumstances, mindful of: (1) the difficulties involved in formally securing the WAR, (2) the fact that operational access for RFS would be available in any event under relevant legislation and (3) the comprehensive bushfire risk management strategy underpinning the proposal; I am satisfied that the proposal (as conditioned) could go ahead without the imposition of Condition 16 of the RFS GTAs.

Ecology related considerations and Biodiversity Conservation Act 2016 (NSW)

66. In their supplementary joint expert report dated 9 April 2025 (Final Ecology JER), and mindful of proposal amendments and proposed conditions, the ecology experts concluded that all contentions about terrestrial and aquatic ecology, including those associated with adjoining ecosystems and nearby oyster aquaculture, have been resolved.

67. In relation to the risk to oyster aquaculture, among other factors, the experts noted the “proposed large vegetated buffer to the Tomaga River”, which is the subject of a Vegetation Management Plan and exceeds the recommended buffer widths, and “the extensive native plantings proposed within and surrounding the golf course” (Final Ecology JER par 16), which was suggested to provide a best practice foundation.

68. In relation to potential golf course-related contaminants, the experts agreed that “proposed procedures for the management of potential contaminants associated with the golf course are practical and can be implemented.” The large buffer would also provide “a best practice foundation for minimising the mobilisation of contaminants into the adjacent ecosystem and waterway” (Final Ecology JER par 25).

69. Habitat corridors in the site environs are important local features. The experts placed considerable store on the fact that the proposal provided for some 60% of the site to be conserved in perpetuity and actively managed for conservation (Ecology JER dated 26 February 2025 p 11). Conditions of consent requiring an updating of the VMP accompanying the proposal. In accordance with proposed Condition 49, before site works commence, the VMP would:

“…

Outline the methodology for the removal and ongoing management of all noxious and environmental weeds, detailing any initial and follow-up maintenance required.

Identify revegetation/rehabilitation required in degraded areas to restore and maintain all Plant Community Types to good condition.

Identify all measures proposed to manage the land for conservation in perpetuity, including performance measures, timing and responsibility for each commitment

…”

70. The nominated “reason” for Condition 49 is as follows:

“To ensure the important habitat corridors to the north and south of the development are maintained for conservation in perpetuity. These corridors are a key component of the locally important east-west habitat corridors, which are important for species such as the threatened Yellow-bellied glider.”

71. There is no dispute that the proposal would, through its native vegetation removal, exceed the biodiversity offsets scheme (BOS) threshold under s 7.4 of the Biodiversity Conservation Act 2016 (NSW) (BC Act). I note that mindful of s 7.7, the DA is accompanied by a BDAR. The analysis and findings of the final BDAR, including impact avoidance and biodiversity credit retirement requirements, is supported by the experts and the parties. Given the measures proposed, and mindful of s 7.16(2) of the BC Act, I am not of the opinion that the proposed development is likely to have serious and irreversible impacts on biodiversity values.

72. I further note with respect to State Environmental Planning Policy (Primary Production) 2021, and mindful of ss 2.27-2.29, there has been consultation with the Secretary of Department of Industry. Proposed Condition 8 indicates the requirements to comply with recommendations from the department which are provided as Attachment 3 to the conditions. A reason for this condition relates to compliance with the NSW Oyster Industry Sustainable Aquaculture Strategy.

Coastal management

73. Chapter 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H), relating to coastal management, applies. The ecology experts indicate an agreement that the proposal avoids the mapped Coastal Wetland and Proximity Area, however, is within lands identified within the Coastal Use Area and Coastal Environment Area. In turn, the provisions of ss 2.10 and 2.11 apply. I have considered the provisions of ss 2.10(1), 2.11(1)(a) and 2.11(1)(c). I note that the ecology experts are satisfied with the amended proposal, subject to conditions, mindful of the provisions of Ch 2, which include ss 2.10(2) and 2.11(1)(b). The position on these matters is outlined in the Ecology JERs. It is noteworthy that Dr Marten’s synthesised his position on the status of all contentions in a report prepared 28 May 2025 and marked Ex 21. For example, it was Dr Marten’s conclusion that the amended stormwater management strategy provided appropriately for collection and treatment of runoff from the golf course prior to discharge into the receiving environment, subject to consent conditions which are now agreed.

74. In respect to non-ecology matters, I am satisfied that due regard has been had to each in the general assessment of the proposal. Section 2.12 is concerned that development does not increase risk of coastal hazards. Flood risk was also a consideration here and I am mindful of the Flood Impact Assessment Report and Flood Emergency Response Plan prepared by Orion Group each filed 28 May 2025, and again noting Dr Marten’s positive conclusions in relation to hydrology and flood risk in Ex 21. I accept this position of the experts, relevantly, and am satisfied with respect to ss 2.10(2), 2.11(1)(b) and 2.12, mindful of agreed consent conditions.

Aboriginal heritage impact permit

75. An Aboriginal Cultural Heritage Assessment Report accompanies the DA. A number of Aboriginal objects would be impacted by the proposal. This would require a permit under s 90 of the National Parks and Wildlife Act 1974 (NSW). Attachment 2 to the proposed conditions of consent includes GTAs relating to this permit from Heritage NSW. The requirement to comply with these GTAs is nominated at Condition 3.

Contamination and remediation

76. Two areas of environmental concern were identified on the site in preliminary site investigation sampling relating to contamination (Remediation Action Plan dated October 2024 Ex B Tab 15 (RAP)). The RAP documents a remediation strategy to make the site suitable for the proposed use. The RAP has been accepted by Council and compliance with it is nominated in agreed conditions (Condition 87). I accept that steps are in train to ensure that the site will be suitable, after remediation, for the purpose for which the development is proposed to be carried out. In turn, the relevant provisions of s 4.6(1) of SEPP R&H have been met.

Eurobodalla Local Environmental Plan 2012 (ELEP)

77. The zoning of the proposal is indicated above (at [6]). I have given consideration to zone objectives for each of the relevant zones. As noted (at [8]), the residential accommodation component is permissible pursuant to cl 15 of Sch 1 of ELEP (with respect to additional permitted uses). Other aspects of the development are permissible in accordance with the zoning, or cll 2.6 and 2.7 with respect to subdivision and demolition.

78. There is extensive documentation in relation to the various technical provisions of ELEP, which has been synthesised in the applicant’s JPT, cross referencing the expert evidence. Here, it is reasonable for me to rely on the expert evidence in regard to these technical provisions. Here I am mindful that Council, informed by its team of specialists and the experts it has called, has: (1) come to the position that relevant contentions warranting refusal of the development are resolved with the application amendments and the detailed technical evidence now before the Court, and (2) indicated that it finds nothing in error with the applicant’s JPT; it seems reasonable for me to also adopt the advice of the applicant in coming to findings in relation to ELEP content.

79. I will try to be brief in my synthesis, which is as follows. Stormwater, flooding, hydrogeology and ecology experts gave evidence, including relevant to matters raised in cll 5.21, 6.3, 6.4, 6.7, 6.8, 6.9 in the ELEP. B Addison and R Cresell were called by the applicant and D Martens was called by Council. The ecology experts have been nominated above. Mindful of the position outlined in the applicant’s JPT and the expert evidence generally, it is my view that the requirements of ELEP are met in relation to: cl 5.21 relating to flood planning, cl 6.3 relating to acid sulfate soils, cl 6.4 relating to earthworks, 6.7 relating to riparian lands and watercourses, cl 6.8 relating to wetlands, cl 6.9 relating to stormwater management and cl 6.17 relating to airspace operations.

Contested consent conditions

80. On the final day of the hearing, I directed the parties to confer towards preparation of final draft conditions of consent. There was disagreement between the parties with respect to a limited number of the conditions. The parties argued their case with respect to each point in written submissions filed on 11 July 2025 by the applicant and on 14 July 2025 by Council. The disputed points relate to:

81. RFS general terms of approval and the requirement for a bushfire safety authority;

82. Timing of the installation of the proposed 500,000L tank for bushfire protection;

83. Timing of the construction of the shared pathway along Clearwater Terrace;

84. Payment of a maintenance bond for water and sewer service construction works.

Conditions relating to RFS general terms of approval

81. In its submissions on conditions, Council raises proposed Conditions 5, 111 and 167 which concern the requirement for a bushfire safety authority (BSA) and have a relationship to the GTAs which had earlier been issued by RFS. RFS has also interacted with Council subsequently in relation to the amended proposal. The applicant only raises Condition 5.

82. Condition 5 as proposed by Council provides that:

“The applicant must obtain a Bush Fire Safety Authority from NSW Rural Fire Service.”

83. The applicant’s version of Condition 5 includes the above sentence but goes onto particularise certain bushfire risk management requirements, including in relation to:

84. Requirements to comply with various bushfire management related documents, as follows:

“a. the Architectural Plans dated 17 October 2024 prepared by Saturday Studio, Plan of Proposed Bushfire Protection Measures, drawing number 100:08;

b. Bushfire Assessment Report dated 10 February 2025 prepared by Travers Bushfire and Ecology; and

c. Engineering Design Drawings dated 24 October 2024 prepared by Rygate and West, Fire Protection System North and South Plans, sheets 27 and 28”

1. Further requirements in relation to the following topics: asset protection zones, construction standards, access - internal roads, water and utility services, emergency and evacuation planning assessment.

2. I understand the differences on this condition as having two elements. The first element is whether consent should be issued inconsistent with the GTAs issued by RFS. In its submissions on draft conditions, Council indicates with respect to this (pars 18-20):

“Under section 4.14(3) of the Environmental Planning and Assessment Act 1979 (EPA Act), a consent granted by the Council as consent authority must be consistent with the GTAs.

The Council accepts that the Court has power under section 8.14(4) of the EPA Act to determine an appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of a relevant approval body.

It is the Council’s position that it is a matter for the Court whether to impose a condition / conditions that are inconsistent with the RFS GTAs.”

85. I have already determined that it is reasonable in the circumstances to adopt the position of the experts in relation to the secondary emergency evacuation access. This is at odds with Condition 16 to the RFS GTAs issued on 24 November 2021. It is also noteworthy that subsequent to this, amendments to the proposal were also forwarded to RFS. The RFS position expressed by email dated 7 April 2025, indicating that at a minimum operational access to Princes Highway is required, is referenced above (at [41]). It is my finding that such operational access is already available.

86. The second element is the appropriateness of the inclusion of the particulars relating to bushfire risk management as proposed in the applicant’s version of consent conditions. Council makes no comment in respect to this. The applicant submits that under s 4.47(5)(b)(ii) of the EPA Act, the future BSA issued by RFS must not be inconsistent with the relevant consent.

87. On this, there are two points requiring attention. First is that the applicant’s additional “requirements” in Condition 5 have a lot in common with the RFS GTAs issued 24 November 2021 (Ex G Tab 6). While there are a number of points of difference, some of these would associate with the changes to the design particulars of the proposal. A key difference of course is the exclusion of the requirement for the WAR to Old Mossy Point Road (GTAs Condition 16). Second, and while I have not received any submissions on this or examined the various documents comprehensively, it may be that tthe applicant’s additional “requirements” for the most part come from the material which is already part of the intended consent documentation.

88. I understand the general idea behind general terms of approval, under the statutory scheme, is that relevant ground rules relating to a future line agency approval are identified sufficiently early, promoting “integrated” decisions across agencies and Councils. This might be a good reason for the inclusion of the particulars in Condition 5, suggested by the applicant. The problem is that I have insufficient material in relation to the line of sight between the suggested inclusions in Condition 5 and the evidence. It would, of course, be inappropriate if details in Condition 5 unreasonably prejudiced the otherwise provisions of a BSA. I simply have no evidence on this potentiality.

89. The application documents already include the Bushfire Assessment Report dated 10 February 2025 prepared by Travers Bushfire and Ecology (see Annexure A Attachment 1 Item 24) and various other proposed works which assisted in the resolution of bushfire related matters as an aspect of the evaluation of this DA. That is, consent to this proposal would already involve these requirements. It seems to me that, in the circumstances, the detailed provisions proposed by the applicant with respect to Condition 5 should be excluded, along with the reference to standing law in the proposed “note”. In the circumstances, legal requirements relating to the issue of the BSA will need to stand on the other documentation constituting the consent, submissions involving the application for the bush fire safety authority with RFS and the relevant law.

90. I note that Council’s proposed Condition 111 requires submission of evidence of compliance with the BSA prior to release of a subdivision certificate. Council’s proposed Condition 167 concerns management and maintenance of the site in accordance with the Bush Fire Protection Assessment prepared by Travers Bushfire & Ecology and the bush fire safety authority. Measures are to be kept in good working order by the Community Association for the life of the development. I cannot see any suggestion that the applicant contests these conditions. In turn they should remain.

Timing of the installation of the proposed 500,000L tank for bushfire protection

91. The dispute centres on an element of Condition 17. Council’s version of conditions requires, prior to the issue of the first subdivision certificate, the installation of a 500,000L tank supported by a back-up generator. The applicant maps out a staged approach as follows:

“Tank/s with a total capacity of 500,00L for the fire protection system to be installed as follows:

i. Prior to the issue of any subdivision certificate for the residential lots in Stage 1, the installation of tank/s of at least 100,000L for the fire protection system supported by a backup generator. The supporting infrastructure must be installed on community property.

ii. Prior to the issue of any subdivision certificate for the residential lots in Stage 2, the installation of tank/s of at least 200,000L for the fire protection system supported by a backup generator. The supporting infrastructure must be installed on community property.

iii. Prior to the issue of any subdivision certificate for the residential lots in Stage 3, the installation of tank/s of at least 200,000L for the fire protection system supported by a backup generator. The supporting infrastructure must be installed on community property.”

92. Mindful of past failings with reticulated water systems during bushfire events, I note that the bushfire expert evidence sought to extend the findings of the then proposal, with respect to backup static water tanks as follows (First Bushfire JER pars 67-68):

“67.

It is also noted that each dwelling/villa will require a 5000-litre water tank under the BASIX requirements. The bushfire experts believe this should be expanded to 10,000L with a 5,000-litre take off point to the dwelling with a fire hose reel supplied from the pump.

The Applicant has also proposed to establish a separate reticulated fire protection system (with hydrants) comprising a further on-site 400,000 litres of water which is reticulated to the front of all dwellings, villas and other facilities as a duplicated system. The experts agree that this should be extended to 500,000 litres and amended on the Engineering set.”

93. While it might seem unlikely that the whole of the 500,000L tank resource would be necessary at the initial stage of residential occupation, I was not taken to evidence on this, or on questions of proportionality (ie whether there was a linear relationship to the roll out or something other than that). When the staging plan referenced in consent conditions is examined in the broad (Table 3-1 of the Construction Traffic Management Plan), it is clear that Stage 1 is a significant component of the proposed residential development. But, for example, it is not known whether say something like a 300,000L tank might be appropriate for the first stage as something of an “entry-level” factor. For the applicant to make its case on this it would have been appropriate to enable the position to be examined by evidence. I would see this a matter that is best dealt with by a modification application should the applicant wish to press it.

Conditions relating timing of the construction of the shared pathway along Clearwater Terrace

94. Proposed Conditions 2 and 28 relate to the timing of the construction of the shared pathway along Clearwater Terrace. Condition 2 concerns the staging of the development, generally, but includes a specific provision relating to the shared pathway. Condition 28 concerns the timing of the upgrade works to Clearwater Terrace and Estuary Way and also includes a specific provision relating to the shared pathway. The parties agree on the staging of the development except for the timing of the offsite works for the shared pathway on Clearwater Terrace and Estuary Way.

95. Council’s position is that the shared pathway must be completed prior to the issue of a construction certificate or subdivision works certificate for the Stage 1 works. It is the Applicant’s position that the shared pathway would be constructed during Stage 1 but would only need to be completed prior to the import of fill for the golf course as indicated in Stage 1.

96. It is also clear that a further consent condition requires an updated CTMP to be submitted to and approved in writing by Council for each stage of the development (there is no exclusion of Stage 1).

97. Among other points, Council submits that (CSC par 10):

“a. The purpose of the shared pathway is to ensure the safety of the residents of the neighbouring Estuary Estate (including school children).

b. The public submissions received during the public notification of the DA raised concerns about impacts on resident safety arising from construction traffic.

c. The CTMP did not include sufficient detail about the management of impacts of construction traffic on pedestrians along Estuary Way and Clearwater Terrace (Exhibit 20).

d. The assessment report prepared by Mr Rudd (Exhibit 20, p 3) indicates that the condition should require the shared pathway to be constructed “prior to construction traffic operation”.”

98. There is no dispute that apart from the importation of fill, the Stage 1 works identified in the CTMP include bulk earthworks and in-ground services, road pavements, footpaths and landscaping for residential subdivision; the stormwater detention basin at eastern site boundary; electrical works; intersection works at Estuary Way and Clearwater Terrace; road works (Clearwater Terrace East and Oaks Avenue), roundabouts and stormwater drainage; site clearing and the construction of the hotel carpark, entry road and landscaping.

99. The applicant’s arguments include (ASC par 9):

“a. There is no evidence that some traffic generation prior to the commencement of fill import (for example traffic from early works construction employees) has an impact on roads or pedestrians that a pedestrian pathway would mitigate.

b. A shared pathway is required pursuant to Council’s technical specifications as it is one of the aspects of the road design for that specific level of service road (which is triggered when the traffic reaches over 1000 vehicles per day).

c. The hotel will periodically shut down during construction works reducing total traffic (guests and employees).2

d. Council’s proposed condition timing would require public infrastructure works to be completed before even a construction certificate or subdivision certificate could be issued, and physical commencement of the development. That is, the Applicant could not take any aspect of the benefit of the consent. This would place a significant financial and timing burden on the Applicant. This is unnecessary, impractical, and may unfairly delay the issue of these initial certificates and initial works.”

100. The CTMP indicates that the largest trucks involved in the golf course fill aspect of the development would be the 19m articulated heavy vehicles (ie truck and dog) with a maximum of 11 per day. The largest truck for road base delivery is also indicated to be a 19m articulated vehicle. It is these vehicles which bring particular swept path attention (CTMP p 9). While the volume of material is much smaller, there will also be road construction during Stage 1 and apparently up to a maximum 19 vehicles per day (CTMP p 13).

101. It is appropriate that the trigger for completion of the shared pathway is the commencement of delivery of either the golf course fill or the road base delivery beyond that involving minor or temporary works. My intention is that, should there be some smaller scale delivery of road base, associated with general site access or the like, that this not be prevented. This approach to the condition should assist in allowing certificates to issue and certain works to commence prior to completion of the shared path. The particulars of any smaller scale delivery of road base can be resolved with the updating of the Stage 1 CTMP.

Payment of a maintenance bond for water and sewer service construction works

102. Council’s proposed Condition 136 does not particularise the relationship between the staging of subdivision certificates and maintenance bonds. It is appropriate that this occur. The applicant’s wording should be adopted for Condition 136.

Conclusion

103. This proposal is generally in accordance with the statutory scheme for the site and as a consequence of various amendments to the proposal, the contentions raised by Council as to why the proposal should not warrant the grant of consent have been adequately addressed. The potential adverse implications associated with the proposal are outweighed by positive features, including in relation to provision of additional housing supply, tourism related facilities which can bring economic and social benefit and the retention of some 60% of the site for conservation purposes in perpetuity.

104. The appeal should be upheld and development consent should be granted to the applications before me, subject to conditions. In relation to conditions, I note that most have been agreed between the parties. There were a limited number of disputed conditions which I have made determinations in relation to above. Annexure A to this judgement accommodates my findings in relation to conditions.

105. The Court’s orders in relation to the determination of the appeal follow. As indicated at [12], it is also appropriate to record certain orders made in relation to amendments to the proposal which were handed down during hearing proceedings.

Orders

106. The Court orders that:

107. The Court, under s 39(2) of the Land and Environment Court Act 1979 (NSW), in exercising the functions of Eurobodalla Shire Council as the relevant consent authority, under cl 55 of the Environmental Planning and Assessment Regulation 2000 (NSW), agrees to the amendment to Development Application No DA 0272/21 in accordance with the bundle of plans and documents filed with the Court on 28 May 2025.

108. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment to DA 0272/21 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as agreed or assessed.

109. The appeal is upheld.

110. Development consent is granted to development application No. DA 0272/21 for alterations and additions to the existing 14-room hotel, community title subdivision, creation of a tourism and recreation development and a residential precinct, subdivision for 76 single dwelling residential lots and one lot for multi-dwelling housing, and associated subdivision works including secondary emergency egress and utility infrastructure, and associated development; on Lot 2 DP 63437, Lot 1 DP 1040724, Lot 11 DP 1039319 (known as 340 and 342 Old Mossy Point Road, Jeremadra) and Lot 39 DP 1213519, Lot 45 DP 1272424; subject to conditions, as stated in the development consent annexed and marked as ‘Annexure A’

111. The exhibits are returned with the exception of Exhibits 3, A and H, which are retained.

P Walsh

Commissioner of the Court

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Annexure A (1.37 MB, pdf)

Amendments

15 October 2025

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), Attachment 1 to the Conditions of Consent in Annexure A is amended.