Mungo Developments Pty Ltd v MidCoast Council

Texts Cited: Koala Habitat Protection Guideline, Implementing State Environmental Planning Policy (Koala Habitat Protection) 2019, NSW Department of Planning, Industry and Environment
Draft MidCoast Local Environmental Plan 2025, MidCoast Council

Category: Principal judgment

Parties: Mungo Developments Pty Ltd (Applicant)
MidCoast Council (Respondent)

Representation: Counsel:
H Kahagalle (Solicitor) (Applicant)
M Caban (Solicitor) (Respondent)
Solicitors:
Addisons (Applicant)
Local Government Legal (Respondent)

File Number(s): 2025/58073

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This class 1 appeal arises following the refusal by Midcoast Council of Development Application DA2023/0608 seeking consent for Concept Development and Stage 1 Development Approval for a Caravan Park on land legally described as Lot 2 in DP 1015609, otherwise known as 288 Mungo Brush Road, Hawks Nest.

2. The DA was lodged by the Applicant in these proceedings, Mungo Developments Pty Ltd (Mungo Developments), on 7 July 2023 and was publicly notified by the Council between 14 August and 18 September 2023.

3. The DA was refused by the Council on 21 August 2024, and Mungo Developments filed an appeal with the Court on 13 February 2025.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, on 26 September 2025. I presided over the conciliation conference, prior to which the parties agreed to certain amendments that would resolve the contentions.

5. A signed agreement was submitted to the Court on 19 September 2025, in accordance with s 34(10) of the LEC Act. The agreement records the approval of the Council, as the relevant consent authority, to the amending of the application in accordance with s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), and the filing of the amended application with the Court, in accordance with s 8.15(3) of the EPA Act, which were effected prior to the conciliation conference.

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

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

8. The parties have identified the jurisdictional pre-conditions that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act to dispose of these proceedings and grant the orders sought. In that regard, I note the jurisdictional preconditions that follow.

9. The site is located in an area designated by the draft MidCoast Local Environmental Plan (Draft LEP) to be zoned C3 Environmental Management. As such, development for the purpose of Caravan Parks is proposed to be prohibited.

10. However, the development application is saved by operation of cl 1.8A of the draft LEP such that it does not apply. Rather, the provisions of Great Lakes Local Environmental Plan 2014 (GLLEP) apply to identify the site as RU2 Rural Landscape zone, in which caravan parks are permitted with consent where consistent with the following objectives for development in the zone:

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• To maintain the rural landscape character of the land.

• To provide for a range of compatible land uses, including extensive agriculture.

• To provide for rural tourism in association with the primary industry capability of the land which is based on the rural attributes of the land.

• To secure a future for agriculture in the area by minimising the fragmentation of rural land and loss of potential agricultural productivity.

11. The proposed development complies with those development standards in respect of height and floor space ratio at cll 4.3 and 4.4.

12. The site is identified on the relevant Map at cl 7.1(2) of the GLLEP within an area classified Class 4 acid sulfate soils. As no works are proposed more than 2 m below natural ground surface, consent is not required.

13. The Concept Stormwater Management Report prepared by Tattersall Lander dated April 2024 (Stormwater Concept) identifies a flood planning level of 2.8m AHD on the site, ground water at a depth of 6.5m below natural ground level, and the proposed extent of permeable and impervious areas of the development. Drainage paths are identified to serve a detention, treatment and infiltration system of stormwater disposal, and roof water runoff is to be diverted to rainwater tanks to reduce runoff. I am satisfied that the Stormwater Concept is designed to maximise the use of permeable surfaces and minimise impervious surfaces, and integrates water sensitive deign measures to minimise environment degradation. As such, the proposal is for an appropriately managed and maintained stormwater systems that will maintain or improve the quality of stormwater discharged on, and from the land and avoid significant adverse impacts on surrounding bushland and receiving waters nearby in accordance with cl 7.5 of the GLLEP.

14. A Servicing Strategy Report prepared by Tattersall Lander dated March 2024 provides for the supply of water, electricity and vehicular access to the site, and the disposal and management of sewage and stormwater drainage in accordance with cl 7.21 of the GLLEP. When read in conjunction with agreed conditions of consent that deal with the terms of these essential services, and an explanatory letter authored by Mr Adrian Varela, Senior Design Engineer, dated 26 September 2025, I am satisfied that adequate arrangements have been made to make such services available when required.

State Environmental Planning Policy (Housing), Part 9 Caravan Parks

15. As the proposed development for development for the purposes of a caravan park, the provisions at Ch 3, Pt 9 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) apply.

16. The proposal does not seek consent for the use of any sites for long term residences. Instead, consent is sought for short term sites with length of stays consistent with the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021 and the Holiday Parks (Long Term Casual Occupation) Act 2022 (NSW). As such the matters at s 131 of the Housing SEPP are satisfied.

17. I have considered those matters required to be considered at s 133 of the Housing SEPP and I accept that there will be no long-term residential accommodation such that displacement elsewhere is avoided. Furthermore, I accept that the proposed development is designed to be a nature-based retreat which will embrace the natural landscape, making it distinct from other tourist facilities in the area. Finally, I also accept that community facilities are proposed, including camp kitchens, playgrounds and a swimming pool, and services such as restaurant facility that is will be accessible to the occupants.

18. Part 3 of the Local Government (Manufactured Home Estates, Caravan parks, Camping grounds and Moveable Dwellings) Regulation 2021 (Local Government Regulation) regulates the operation of caravan parks and camping grounds.

19. For the reasons set out at pp 28-30 of the Statement of Environmental Effects prepared by LANDSAS dated June 2023, I am satisfied that the proposed development will be designed, constructed, maintained and operated in accordance with the requirements of Division 3, subdivision 1-8 of the Local Government Regulation.

Biodiversity Assessment

20. The site has an area of around 9.14 hectares contain remnant native vegetation within a larger study area of 17.4 hectares comprising a Plant Community Type (PCT) identified as PCT 3544 – Coastal Sands Apple – Blackbutt Forest. Relevantly, no Threatened Ecological Community is associated with the PCT.

21. I have considered the Amended Biodiversity Development Assessment Report prepared by AEP dated September 2025 (the amended BDAR); the extent of clearing proposed, the species recorded within the subject site for which credits are generated in the biodiversity offset scheme, and the biodiversity values mapped on the site in accordance with s 6.12 of the B**iodiversity Conservation Act 2016 (NSW)

22. I also note that the BDAR records assessment of the site for a candidate species for Serious and Irreversible Impact (SAII), the Genoplesium littorale, otherwise known as the Tuncurry Midge Orchid.

23. An assessment of Koala habitat at Section 1.5.6 of the amended BDAR, consistent with Part 3.2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), concludes that while no koala’s or evidence of koala’s were detected on the site, the site does contain Koala feed trees, but does not meet the definition of core koala habitat at s 3.2 of the Biodiversity SEPP.

24. A site-specific Koala Plan of Management prepared by AEP forms part of the Amended BDAR, and a quantum of biodiversity credits is identified to be retired under the biodiversity offset scheme at Condition 24 of the agreed conditions of consent. I accept that the Koala Plan of Management has considered the Koala Habitat Protection Guideline, Implementing State Environmental Planning Policy (Koala Habitat Protection) 2019, published by the NSW Department of Planning, Industry and Environment (2020), being the Guideline that is required to be considered at s 3.9 of the Biodiversity SEPP.

25. On the basis of the above, and agreed conditions of consent in respect of additional assessment and monitoring for the SAII species, I am satisfied that the proposed development will not significantly affect threatened species, or result in a serious and irreversible impact on biodiversity values as required by s 7.16(2) of the BC Act, and within the meaning of s 6.7 of the Biodiversity Conservation Regulation 2017.

State Environmental Planning Policy (Resilience and Hazards) 2021

26. The site is located within the coastal use area and coastal environmental area as defined in Chapter 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP).

27. On the basis of the Amended BDAR, Stormwater Concept cited at [14], and evidence of a search of the Aboriginal Heritage Item Management System undertaken 10 June 2022, I am satisfied that the development is designed, sited and will be managed to minimise an adverse impact of a kind referred to at s 2.10 of the Resilience SEPP.

28. For similar reasons, I am also satisfied that the development is designed, sited and will be managed to minimise an impact within the coastal use area. To the extent the test at s 2.11 requires the Court to consider the visual amenity and scenic qualities of the coast, including coastal headlands, I am satisfied that the portion of the site on which development is proposed is set back from the water to safeguard its scenic qualities.

On the basis of those documents cited at [23], I am satisfied that the risk of coastal hazards is not likely to increase on the subject site, or on other land, in accordance with s 2.12 of the Resilience SEPP, and I understand from the parties that the site is not subject to any actions identified in a draft and/or certified coastal management program, pursuant to s 2.13 of the Resilience SEPP.

Rural Fires Act 1997 (NSW)

29. As the Site is mapped as bushfire prone land and the Proposed Development is classified as a Special Fire Protection Purpose under s 100B of the Rural Fires Act 1997 (NSW), the Applicant relies on a Bushfire Assessment Report, dated 16 June 2023, prepared by Bushfire Environmental Management Consultancy which concludes the Site is exposed to a marginal bushfire hazard and contains recommendations to mitigate bushfire risk.

30. The proposal was referred to NSW Rural Fire Service (RFS), and a Bushfire Safety Authority issued 17 March 2025.

Conclusion

31. 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.

32. 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 that were originally in dispute between the parties.

33. The Court notes that:

MidCoast Council, as the relevant consent authority, has agreed under s 37 of the Environmental Planning and Assessment Regulations 2021 to the Applicant amending Development Application No 2023/0608 to include the following plans and documents:

| Document | Date | | Biodiversity Development Assessment Report, Rev 6, prepared by AEP | 16 September 2025 |

The following documents have not been superseded and continue to be relied upon as part of Development Application No 2023/0608:

| | Document | Date | | Amended DA Documents – Approved by the Court on 25 March 2025 | | 1. | Road Design Plans prepared by Tattersall Lander: Drawing Name Drawing No. Rev. Cover Sheet, Locality Sketch and Drawing Schedule 2220001 D Overall Site Plan 2220002 D Detail Plan 1 2220003 D Detail Plan 2 2220004 D Detail Plan 3 2220005 D Detail Plan 4 2220006 D Detail Plan 5 2220007 D Road Typical Sections 2220008 D Turning Paths Plan 2220009 D Preliminary Road longitudinal Sections Roads 1-3 2220010 D Preliminary Road longitudinal Sections Roads 4-13 2220011 D Preliminary Road longitudinal Sections Roads Fire Trail 2220012 D | 6 November 2024 | | Drawing Name | Drawing No. | Rev. | | Cover Sheet, Locality Sketch and Drawing Schedule | 2220001 | D | | Overall Site Plan | 2220002 | D | | Detail Plan 1 | 2220003 | D | | Detail Plan 2 | 2220004 | D | | Detail Plan 3 | 2220005 | D | | Detail Plan 4 | 2220006 | D | | Detail Plan 5 | 2220007 | D | | Road Typical Sections | 2220008 | D | | Turning Paths Plan | 2220009 | D | | Preliminary Road longitudinal Sections Roads 1-3 | 2220010 | D | | Preliminary Road longitudinal Sections Roads 4-13 | 2220011 | D | | Preliminary Road longitudinal Sections Roads Fire Trail | 2220012 | D | | 2. | Updated Statement of Environmental Effects prepared by Landsas Advisory Services | March 2025 | | 3. | Stage 1 vegetation clearing plan | 28 February 2025 | | Original DA Documents | | 4. | Development Application Form | 7 July 2023 | | 5. | Survey Plans prepared by Tattersall Lander | 17 September 2021 | | 6. | Concept Plans prepared by O.G.E Group Architects Plan Reference Date SK_2.01 31 May 2023 SK_2.02 31 May 2023 SK_2.03 31 May 2023 SK_3.09 13 February 2024 SK_3.10 13 February 2024 SK_3.11 13 February 2024 SK_3.12 13 February 2024 SK_3.13 13 February 2024 SK_3.14 13 February 2024 SK_3.15 13 February 2024 SK_3.16 13 February 2024 SK_3.17 13 February 2024 SK_4.1 13 February 2024 SK_4.2 13 February 2024 SK_4.3 13 February 2024 | Various | | Plan Reference | Date | | SK_2.01 | 31 May 2023 | | SK_2.02 | 31 May 2023 | | SK_2.03 | 31 May 2023 | | SK_3.09 | 13 February 2024 | | SK_3.10 | 13 February 2024 | | SK_3.11 | 13 February 2024 | | SK_3.12 | 13 February 2024 | | SK_3.13 | 13 February 2024 | | SK_3.14 | 13 February 2024 | | SK_3.15 | 13 February 2024 | | SK_3.16 | 13 February 2024 | | SK_3.17 | 13 February 2024 | | SK_4.1 | 13 February 2024 | | SK_4.2 | 13 February 2024 | | SK_4.3 | 13 February 2024 | | 7. | Design Statement Site Concept Plans prepared by O.G.E Group Architects | 31 May 2023 | | 8. | Statement of Landscape Design Intent prepared by Urbis | 23 February 2024 | | 9. | Aboriginal Heritage Item Management System Search | 10 June 2022 | | 10. | Bushfire Assessment Report prepared by Bushfire Environmental Management Consultancy | 16 June 2023 | | 11. | Bushfire Emergency Management and Evacuation Plan prepared by Bushfire Environmental Management Consultancy | 26 June 2023 | | 12. | Development Application Cost Plan prepared by MCG Quantity Surveyors | 16 June 2023 | | 13. | Economic Contribution Report prepared by Caravan Industry Association of Australia and BDO | | | 14. | Geotechnical Assessment prepared by Regional Geotechnical Solutions | 16 June 2023 | | 15. | Preliminary Site Investigation prepared by Regional Geotechnical Solutions | 21 March 2023 | | 16. | Servicing Strategy prepared by Tattersall Lander | March 2024 | | 17. | Concept Stormwater Management Report prepared by Tattersall Lander | April 2024 | | 18. | Stormwater Management Report Music Modelling [provided on USB – unable to print] | | | 19. | Traffic Assessment Report prepared by SECA Solution | 19 June 2023 | | 20. | Amenities Coverage Plan | 27 February 2023 | | 21. | Response to Request for Further Information prepared by AEP | 08 May 2024 | | 22. | Arborist Impact Assessment prepared by AEP | May 2024 | | 23. | Detailed Site Investigation Contamination Assessment – Response to RFI prepared by Regional Geotechnical Solutions | 10 May 2024 | | 24. | Detailed Site Investigation – Contamination Assessment prepared by Regional Geotechnical Solutions | 8 March 2024 | | 25. | RFI – Special Fire Protection Purpose Lot 2 DP 1015609 Mungo Brush Road Hawks Nest prepared by BEMC | 19 March 24 |

Orders

34. The Court orders that:

35. The appeal is upheld.

36. Development Application No. 2023/0608 is determined by the grant of consent for a concept development approval including stage 1 works for a caravan park at Lot 2 in Deposited Plan 1015609 (288 Mungo Brush, Hawks Nest 2324) subject to the conditions contained at Annexure A.

T Horton

Commissioner of the Court

Annexure A (432 KB, pdf)

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