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[2025] NSWLEC 1833
General information, not legal advice.
Land and Environment Court (NSW)
2025-11-27
Washington C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: New Vision Builders Pty Limited v Wingecarribee Shire Council [2025] NSWLEC 1833
Hearing dates: Conciliation conference on 20 and 21 November 2025
Date of orders: 27 November 2025
Decision date: 27 November 2025
Jurisdiction: Class 1
Before: Washington C
Decision: The Court orders:
(1) The appeal is upheld.
(2) Development Application No. 24/0657 as amended, for the development of a detached dual occupancy, comprising of two dwellings that are part single storey and part two storey at Lot 25 DP 1194787, known as 127 Merrigang Street, Bowral is determined by grant of consent, subject to the conditions of consent set out in Annexure A.
Catchwords: DEVELOPMENT APPLICATION – construction of dual occupancy – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7
Land and Environment Court Act 1979 (NSW), ss 34, 34AA
Environmental Planning and Assessment Regulation 2021 (NSW), ss 37, 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Wingecarribee Local Environmental Plan 2010, cll 4.2E, 7.3
Category: Principal judgment
Parties: New Vision Builders Pty Limited (Applicant)
Wingecarribee Shire Council (Respondent)
Representation: Counsel:
P Vergotis (Solicitor) (Applicant)
T Ward (Solicitor) (Respondent)
Solicitors:
Madison Marcus (Applicant)
Pikes and Verekers Lawyers(Respondent)
File Number(s): 2025/188132
Publication restriction: Nil
COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Wingecarribee Shire Council, of Development Application 24/0657 which seeks consent for the construction of a detached dual occupancy comprising two new dwellings at 127 Merrigang Street, Bowral, Lot 25 DP 1194787.
These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 20 and 21 November 2025.
At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing.
As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Council agreed to the applicant amending the development application to adequately address their contentions.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained. From this, I note the following points.
The development application was made with the written consent of the owner of the land.
The application was adequately notified from 18 January to 2 February 2024, during which time four submissions were received. The amended application was further notified between 8 and 22 July 2025, during which time two submissions were received, however no oral submissions were made at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions.
The site is located within the Sydney Drinking Water Catchment and, accordingly, Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies. The application is accompanied by civil engineering plans by Maker Engineering dated 21 November 2025. From this and the parties’ submission, I accept that the requirements of Ch 6 of the SEPP BC relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met by the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), and is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10).
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it will be suitable for the intended use. Based on the parties’ submissions and the information contained in the Statement of Environmental Effects, I accept that the land has historically been used for residential purposes, is not likely to be contaminated, and is suitable for the future residential use.
Pursuant to s 27 of the EPA Regulation, a BASIX certificate, that relates to the development as amended, accompanies the application.
The subject site is zoned R3 Medium Density Residential under the Wingecarribee Local Environmental Plan 2010 (WLEP), within which development for the purposes of dwelling houses and dual occupancy is permissible with consent. The proposed development is consistent with the objectives of this zone.
Pursuant to WLEP cl 4.2E, development consent must not be granted for the erection of a dwelling house or dual occupancy unless the lot size meets the minimum area of 1000m2. The subject site has an area of 1077m2.
Pursuant to WLEP cl 7.3, from the parties’ submissions and the Geotechnical Assessment Report by Geofirst Pty Ltd dated 18 November 2025, I accept that the matters listed in WLEP cl 7.3 have been considered, and that the earthworks will not have a detrimental impact on environmental functions and processes or neighbouring uses.
For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions and subsequently I am required, under s 34(3) of the LEC Act, to dispose of the proceedings in accordance with the parties’ decision.
The Court notes:
Wingecarribee Shire Council as the relevant consent authority approves, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the applicant amending development application no. DA 24/0657 in accordance with the following plans and documentation:
| Drawing / Plan | Revision | Date Accepted by Council | Prepared or Drawn By | | 1 – Title Page | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 2 – External Colours | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 3 – Survey | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 4 – Site Coverage | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 5 – Site Plan / Analysis Plan | Z | 21 November 2025 | New Vision Builders Pty Ltd | | 6 – Site Benching | Z | 21 November 2025 | New Vision Builders Pty Ltd | | 7 – Site Analysis | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 8 – Ground Floor Plan – Dwelling 1 | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 9 – First Floor Plan – Dwelling 1 | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 10 – GS FSR Area | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 11 – Elevations 1/4 - Dwelling 1 | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 12 – Elevations 2/4 - Dwelling 1 | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 13 – Elevations 3/4 - Dwelling 1 | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 14 – Elevations 4/4 - Dwelling 1 | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 15 – Ground Floor Plan – Dwelling 2 | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 16 – First Floor Plan – Dwelling 2 | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 17 – Elevations 1/4 - Dwelling 2 | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 18 – Elevations 2/4 - Dwelling 2 | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 19 – Elevations 3/4 - Dwelling 2 | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 20 – Elevations 4/4 - Dwelling 2 | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 21 – Building Sections/Windows/Doors/BASIX | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 22 – Building Sections | Z | 21 November 2025 | New Vision Builders Pty Ltd | | 23 – Roof Plan | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 24 – Erosion & Sediment Plan | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 25 – Sun Shading Diagram | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 26 – BASIX Certificate 1/3 | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 27 – BASIX Certificate 2/3 | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 28 – BASIX Certificate 3/3 | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 29 – BASIX Certificate 3/3 | Y | 21 November 2025 | New Vision Builders Pty Ltd | | 30 – Notification Plan | Y | 21 November 2025 | New Vision Builders Pty Ltd | | MKR00416-10-C0100 – Civil Works Layout Plan | 8 | 18 November 2025 | Maker Eng | | MKR00416-10-C0200 – Bulk Earthworks Layout Plan | 8 | 18 November 2025 | Maker Eng | | MKR00416-10-C0500 – easement Flow Path Long Sections | 5 | 18 November 2025 | Maker Eng | | MKR00416-10-C0600 – Driveway Long Sections | 3 | 18 November 2025 | Maker Eng | | MKR00416-10-C1500 – Soil water Management Notes | 2 | 10 June 2025 | Maker Eng | | MKR00416-10-C1510 – Soil Water Management Plan | 6 | 18 November 2025 | Maker Eng | | L1 – Site Plan | D | 18 November 2025 | Nicholas Bray Landscapes | | L2 – Landscape Detail | D | 18 November 2025 | Nicholas Bray Landscapes | | L3 – Planting Plan | D | 18 November 2025 | Nicholas Bray Landscapes | | L4 – Plant Legend | D | 18 November 2025 | Nicholas Bray Landscapes | | L5 – Elevations 1 of 2 | D | 18 November 2025 | Nicholas Bray Landscapes | | L6 – Elevations 2 of 2 | D | 18 November 2025 | Nicholas Bray Landscapes | | L7 – Construction Details 1 of 2 | D | 18 November 2025 | Nicholas Bray Landscapes | | L8 – Construction Details 2 of 2 | D | 18 November 2025 | Nicholas Bray Landscapes | | L9 – Tree Management Plan | D | 18 November 2025 | Nicholas Bray Landscapes | | L10 – Existing and New Civil Levels | D | 18 November 2025 | Nicholas Bray Landscapes | | L11 – Sewer, Comms and Electrical | D | 18 November 2025 | Nicholas Bray Landscapes | | Amendments to planting plan | E | 20 November 2025 | Nicholas Bray Landscapes | | Title Page | A | 17 November 2025 | Residential Engineering | | Retaining Wall Plan | A | 17 November 2025 | Residential Engineering | | Retaining Wall Detail ‘RW1’ Section X-X | A | 17 November 2025 | Residential Engineering | | Retaining Wall Detail ‘RW1’ Section Y-Y | A | 17 November 2025 | Residential Engineering | | Retaining Wall Detail ‘RW1’ Design | A | 17 November 2025 | Residential Engineering | | Typical Section Plan | A | 17 November 2025 | Residential Engineering | | Block Retaining Wall Detail ‘RW2’ Section Z-Z | A | 17 November 2025 | Residential Engineering | | Retaining Wall Detail ‘RW3’ Design | A | 17 November 2025 | Residential Engineering | | Alternative Block Retaining Wall Detail ‘RW4’ | A | 17 November 2025 | Residential Engineering | | H000 – Title Sheet, Drawing Index, Legend & Site Plan 1 of 5 | 2 | 17 November 2025 | BNMA Engineering | | H100 – Site Plan – Sewer Layout 2 of 5 | 2 | 17 November 2025 | BNMA Engineering | | H101 – Site Plan 2 – Sewer Layout 3 of 5 | 2 | 17 November 2025 | BNMA Engineering | | H102 – Site Plan – Sewer Layout 4 of 5 | 2 | 17 November 2025 | BNMA Engineering | | H103 – Sewer Long Section 5 of 5 | 2 | 17 November 2025 | BNMA Engineering | | E001 - Site Plan - Reticulation Electrical and Telecommunications | 2 | 17 November 2025 | BNMA Engineering | | Document | Rev | Date Accepted by Council | Prepared By | | Addendum to Arboricultural Report | • | 13 October 2025 | Arboriculture Consultancy Australia | | Geotechnical Report | - | 18 November 2025 | Geofirst Pty Ltd |
The Court orders:
The appeal is upheld.
Development Application No. 24/0657 as amended, for the development of a detached dual occupancy, comprising of two dwellings that are part single storey and part two storey at Lot 25 DP 1194787, known as 127 Merrigang Street, Bowral is determined by grant of consent, subject to the conditions of consent set out in Annexure A.
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New Vision Builders Pty Limited
Wingecarribee Shire Council [2025] NSWLEC 1833