Nielsen v Wingecarribee Shire Council

Texts Cited: Wingecarribee Development Control Plan 2010

Category: Principal judgment

Parties: Jenna Nielsen (Applicant)
Wingecarribee Shire Council (Respondent)

Representation: Counsel:
C Rose (Solicitor) (Applicant)
R McCulloch (Solicitor) (Respondent)
Solicitor:
Wilshire Webb Staunton Beattie (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s): 2024/467320

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal by Wingecarribee Shire Council of development application DA 23/1414 (the DA). The DA seeks consent for tree removal, the subdivision of one existing lot into 2 lots, retention of the existing dwelling and external buildings on the first lot and the 2nd lot to be vacant and services to be provided as required on both lots on Lot 2 in DP 1219836 at 66A Osborne Road, Burradoo, NSW, 2576 (the site).

2. The DA was lodged with the Respondent on 20 June 2023. On 16 December 2024, the Applicant filed Class 1 proceedings with the Court.

3. The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 6 February 2025. An amended SOFAC was filed with the Court on 10 June 2025. The Applicant filed its Statement of Facts and Contentions in reply on 29 April 2025.

4. A Joint Town Planning Expert Report was filed with the Court on 30 May 2025.

5. On 6 June 2025 the Applicant was granted leave by the Court to rely on amended plans and supporting documents as contained in Exhibit DT-01 filed with the Court (the amended DA).

6. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 10 and 11 June 2025, commencing with an on-site view. I presided over the conciliation conference. No submissions had been received in response to the notification of the DA, and thus no submitters attended the on-site view.

7. At the commencement of the conciliation conference, the parties confirmed that the ecological issues were the contention remaining and specifically, minimising tree removal on the site which would be required for the new driveway and house site.

8. At the on-site view the expert engineers and ecologists for the parties spent some time in site inspection and discussions, reviewing the proposed driveway and house site. The parties came to agree changes to these elements of the proposed development that would satisfy the concerns raised by the Respondent in the SOFAC.

9. The parties confirmed that they were anticipating reaching a s 34 agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

10. Accordingly, the hearing was adjourned, and the matter proceeded under s 34 of the LEC Act. The parties reached a s 34 agreement on 11 June 2025. This decision involved the Court upholding the appeal and granting development consent to the DA, subject to conditions, as agreed by the parties.

11. The signed s 34 agreement, Annexure A (Conditions of Consent) and the further amended plan (attached the s 34 agreement) were filed with the Court on 11 June 2025. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites.

12. The parties advise that the further amended DA satisfactorily addresses the contentions raised by the Respondent in the SOFAC.

13. In particular the parties advise that the further amended DA addresses the following matters:

14. The amended DA was further amended during the section 34 conference to address the remaining contention raised by the Council by:

(a) Amending the alignment of the driveway on Lot 101 to avoid as many Eucalyptus macarthurii as possible, and increasing the retention of the Eucalyptus macarthurii on the site; and (b) Adjusting the building footprint to avoid Eucalyptus macathurii;

2. The parties have also agreed to conditions of consent which ensure an arborist supervises works near the Eucalyptus macarthurii and require hand digging where there are structural roots.

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

4. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Prerequisites

Owner’s consent

17. The parties advise that the DA was made with the written consent of the owner of the site.

Community Participation (Sch 1, Div 2, cl 7(1) EPA Act)

18. The DA was publicly notified from 29 June 2023 to 31 July 2023. No submissions were received during the notification period.

Conditions

19. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Integrated development

20. The Respondent stated in its amended SOFAC that the proposed development is integrated development pursuant to s 4.46 of the EPA Act as it requires approval from the Natural Resources Access Regulator under s 91 of the Water Management Act 2000 (NSW) (the Water Management Act). The parties advise that a condition of consent has been imposed noting any Water Management Act approvals are to be obtained if required. It is noted that the DA was not lodged as integrated development.

21. The parties advise that the proposed development no longer requires approval from the NSW Rural Fire Services under s100B of the Rural Fires Act 1997 (NSW) as the Australian Bushfire Solutions Report, dated 19 May 2025, and submitted with the amended DA confirms that the land is no longer affected by bushfire mapped hazard.

Biodiversity Conservation Act 2016 (NSW)

22. The parties advise that the DA was lodged within 90 days of the new inclusion of the site on the Biodiversity Values Map (prepared under Pt 7 of the Biodiversity Conservation Regulation 2017 (NSW) (the Regulation)), so cl 7.3(5) of the Regulation applies, with the effect that no Biodiversity Assessment Report is required for the proposed development.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

23. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) is concerned with the protection of the biodiversity values, and the preservation of amenity, provided by trees and other vegetation in non-rural areas of NSW.

24. Chapter 2, Pt 2.2 of the Biodiversity SEPP applies to the site, requiring consent to be obtained for tree removal within the R5 zone. The parties advise that consent is being obtained as required through the current DA for removal of trees within the footprint of the proposed future dwelling, driveway access and necessary bushfire protection zones.

State Environmental Planning Policy (Resilience and Hazards) 2021

25. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (the Resilience SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.

26. The parties have advised the Court that they are satisfied that the land is suitable for the proposed development under s 4.6 of the Resilience SEPP.

27. The Court is satisfied for the purposes of s 4.6 of the Resilience SEPP that the site is suitable for the proposed development.

Wingecarribee Local Environmental Plan 2010

28. The Wingecarribee Local Environmental Plan 2010 (the LEP) applies to the site and to the proposed development. The site is zoned R5 Large Lot Residential (R5 zone) pursuant to cl 2.2 of the LEP; and

29. Development for the purposes of residential uses is permissible with consent within the R5 zone pursuant to cl 2.3 of the LEP;

30. Clause 2.6 of the LEP provides that subdivision is permitted with consent: and

31. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

32. Clause 4.1 of the LEP relates to minimum subdivision lot size. The parties advise that:

33. Clause 4.1 of the LEP requires subdivision to be in accordance with the Lot size map in the LEP; and

34. The proposed development complies with the Lot size map in the LEP which provides a minimum lot size of 4,000m2. Lot 100 is proposed to be 6264m2 and Lot 101 is proposed to be 4172m2.

35. Clause 5.16 of the LEP sets out the matters to be considered in a subdivision. The parties advise that the proposed development complies with each of the matters in cl 5.16 of the LEP, as the proposal is a residential subdivision in a residential area, surrounded by residential uses.

36. Clause 5.21 of the LEP relates to flood planning. The parties advise that the matters in cl 5.21 are addressed by the updated civil plans and that the Respondent is satisfied that the proposed development complies with the following matters as:

37. It is compatible with the flood function and behaviour on the land;

38. It will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties;

39. It will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood;

40. It incorporates appropriate measures to manage risk to life in the event of a flood; and

41. It will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of riverbanks or watercourses.

42. The parties advise that the Statement of Environmental Effects updated on 19 May 2025 sets out an analysis of the proposed development’s response to cl 5.21 of the LEP.

Wingecarribee Development Control Plan 2010

33. The amended SOFAC stated that the original DA was considered to be inconsistent with the Wingecarribee Development Control Plan 2010 (the DCP) in relation to flood liable land and the flora and fauna assessment report. These requirements have now been satisfied by changes included in the further amended DA.

Conclusion

34. Having considered the advice of the parties provided above at [16]-[33], I am satisfied that:

35. the Applicant’s amended DA can be approved having regard to the matters in subs 4.15(1)(b) – (e) of the EPA Act;

36. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

37. approval of the proposed development is in the public interest.

38. Further, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

39. 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.

Notes

37. The Court notes:

38. That Wingecarribee Shire Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), has approved the application for an amendment to development application DA2023/1414 made on 10 June 2025 to include the following document:

(a) Proposed Layout and Tree Removal/Retention Plan prepared by CivPlan dated 10 June 2025.

Orders

38. The Court orders that:

39. The appeal is upheld.

40. Development consent is granted to Development Application DA 23/1414 for tree removal, the subdivision of one existing lot into 2 lots, retention of the existing dwelling and external buildings on the first lot and the second lot to be vacant and services to be provided as required for both lots on Lot 2 in DP 1219836 at 66A Osborne Road, Burradoo, NSW 2576, subject to the conditions of consent at Annexure A.

G Kullen

Acting Commissioner of the Court

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Annexure A (641 KB, pdf)