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[2025] NSWLEC 1847
General information, not legal advice.
Land and Environment Court (NSW)
2025-12-02
Washington C
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Medium Neutral Citation: Palm Lake Works Pty Ltd v Tweed Shire Council [2025] NSWLEC 1847
Hearing dates: 23-27 June 2025
Date of orders: 02 December 2025
Decision date: 02 December 2025
Jurisdiction: Class 1
Before: Washington C
Decision: In matter 2023/260927
The Court orders:
(1) The appeal is upheld.
(2) Development application DA20/0386 for civil works, a stormwater management system, construction of roads, an environmental facility and subdivision is determined by the grant of consent subject to the conditions at Annexure A.
(3) The application made on 13 January 2025 pursuant to s 138 of the Roads Act 1993 (NSW) for road works, water supply works and associated works in Creek Street, as well as the road widening, retaining walls, footpath and associated works in Tweed Coast Road, Hastings Point, as amended, is determined by way of consent subject to the conditions at Annexure B.
(4) The respondent is directed to register the development consent on the NSW planning portal in accordance with s 4.20(1) of the Environmental Planning and Assessment Act 1979 (NSW) within 14 days of the date of these orders.
(5) All exhibits are retained except for exhibits N, O, 19, 20, 21, 22 and 23, which are returned.
In matter 2024/418402
The Court orders:
(1) The appeal is upheld.
(2) Application SWSW24/0005, made pursuant to s 68 of the Local Government Act 1993 (NSW), to carry out water supply and sewerage works servicing Lot 156 DP 628026 at 40 Creek St Hastings Point NSW is approved subject to the conditions at Annexure C.
(3) All exhibits are retained except for exhibits N, O, 19, 20, 21, 22 and 23, which are returned.
Catchwords: In matter 2023/260927
DEVELOPMENT APPLICATION — concurrent matters — subdivision and associated works — flooding impacts — ecological impacts on wetlands — appeal upheld
In matter 2024/418402
SECTION 68 APPLICATION – water supply and sewerage works – concurrent matters – appeal upheld
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), Div 5.1, ss 3.43, 5.5, 5.7, 8.14
Land and Environment Court Act 1979 (NSW), s 39
Local Government Act 1993 (NSW), ss 68, 89
Roads Act 1993 (NSW), s 138
State Environmental Planning Policy (Koala Habitat Protection) 2020, ss 8, 9, 10
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, Pt 2.2, Divs 1, 3, 4, ss 2.8, 2.10, 2.11
Tweed Local Environmental Plan 2000, cll 8, 17, 20, 25, 28, 31, 34, 35, 39A
Tweed Local Environmental Plan 2014, cll 5.21, 5.22, 7.1, 7.2, 7.6, 7.1
Texts Cited: NSW Government, Floodplain Development Manual, (April 2005)
Department of Planning, Housing and Infrastructure, Shelter in place guideline for flash flooding (January 2025)
NSW Rural Fire Service, Planning for Bush Fire Protection (November 2019)
Tweed Shire Council, Tweed Coast Comprehensive Koala Plan of Management (March 2020)
Tweed Shire Development Control Plan 2008
Category: Principal judgment
Parties: Palm Lake Works Pty Ltd (Applicant)
Tweed Shire Council (Respondent)
Representation: Counsel:
I Hemmings SC (Applicant)
L Sims (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2023/260927
2024/418402
Publication restriction: Nil
Palm Lake Works Pty Ltd (Palm Lake) have applied to the Tweed Shire Council to subdivide a 17.77 hectare (ha) lot towards the western edge of Hastings Point in the NSW Northern Rivers, for residential purposes.
The application is for a 13-lot subdivision and associated works, including earthworks, services, drainage, and construction of a road, on Lot 156 DP 628026. The site is commonly known as 40 Creek Street, Hastings Point, or referred to in some development controls as ‘Lot 156’.
The site is subject to numerous physical constraints due to its sensitive ecology, and its position at the confluence of two creeks, adjacent to a wetland, and a short distance away from the coast. This necessitates consideration of potential flooding and ecological impacts, amongst others.
This is the latest in a long line of applications that have been made for this site, with increasingly smaller subdivisions proposed. The current subdivision reflects, to some degree, the size, location and extent of subdivision that is envisaged in the Council’s site-specific planning controls in the Tweed Shire Development Control Plan 2008 (DCP). The development application was lodged on 17 June 2020 and has undergone several iterative amendments through, and in response to, the assessment process.
In these proceedings, two concurrent matters have been heard:
Class 1 proceedings, 2023/260927, which appeals the Council’s actual refusal of the development application for subdivision, and an application under s 138 of the Roads Act 1993 (NSW) (Roads Act) for road works and water supply works (the Class 1 proceedings) and
Class 2 proceedings, 2024/418402, which appeals the Council’s deemed refusal of an application under s 68 of the Local Government Act 1993 (NSW) (Local Government Act) for proposed road works and services, predominantly within Council’s land, along Creek Street and Tweed Valley Road to support the proposed residential subdivision (the Class 2 proceedings).
As a result of without prejudice discussions held prior to this hearing, the Council has come to the position that the works proposed within the Class 2 proceedings are, as amended, now acceptable, and that should consent be granted to the development application they have no further comments or unresolved contentions regarding the proposed works the subject of the s68 application.
Regarding the development application within the Class 1 proceedings, the Council contends that the impacts of the proposed subdivision are in terms of flood risk, ecology and planning matters.
For the following reasons I find that, when assessed against the applicable development controls and legislation, that the environmental impacts of the proposed development are acceptable, and there is no matter of merit or jurisdiction that should preclude the granting of consent. Accordingly, I find that the appeal should be upheld.
Following several amendments to the application, including one for which leave was granted in this hearing, in detail the Class 1 development application seeks consent for the following:
Subdivision of the site into 13 lots by way of Community title (11 residential lots and one association property lot), and one lot as public reserve (see figure 2). The resulting lot sizes are:
(a) Lot 1 (Association property lot): 13,615m2; (b) Lots 2-11: 601m2 per lot; (c) Lot 12: 2884m2; and (d) Public reserve lot: 15.64ha.
Construction of an 8m wide private access road leading off Creek Street.
Construction of two unsealed pipeless bioretention systems and three sealed bioretention systems.
Removal of approximately 8000m2 of native vegetation.
Creation of 1223m2 open space within the association property lot.
Bulk earthworks and provision of services and building pads for future dwelling houses.
The use of stormwater management systems and roads. Figure 2: Overall site layout plan (Source: Exhibit P drawing C100 rev U*)*
The Roads Act application seeks consent under s 138 of the Roads Act for roadworks and water supply works within the road reserves of Creek Street and Tweed Coast Road, which are both public roads for which the Council is the roads authority. These works include:
Widening a section of existing pavement within Creek Street;
Upgrading the intersection of Creek Street and Tweed Coast Road; and
Replacement of an existing water main along the northern side of Creek Street and its connection into an existing rising main in Tweed Coast Road.
The Roads Act Application requires the Court, pursuant to s 39(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) and s 8.14 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) to exercise the functions of the Council by granting consent pursuant to s 138(1) of the Roads Act.
Section 39(2) of the LEC Act states that “the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.”
Section 8.14(1) of the EPA Act states that:
“In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.”
“138 Works and structures
(1) A person must not—
(a) erect a structure or carry out a work in, on or over a public road, or
(b) dig up or disturb the surface of a public road, or
(c) remove or interfere with a structure, work or tree on a public road, or
(d) pump water into a public road from any land adjoining the road, or
(e) connect a road (whether public or private) to a classified road,
otherwise than with the consent of the appropriate roads authority.”
The application in the Class 2 proceedings seeks consent under s 68 of the Local Government Act to carry out water supply and sewerage works to service the site. This includes:
Replacement of the water main in Creek Street and Tweed Coast Road (also the subject of the s 138 Roads Act application).
Provision of a water meter and connection to an existing sewer gravity main and an inspection opening on the site.
Section 68(1) of the Local Government Act states that
“A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval.”
The site is subject to several zonings, including: R1 General Residential pursuant to the Tweed Local Environmental Plan 2014 (TLEP); 7(a) Environmental Protection (Wetlands and Littoral Rainforests) pursuant to the Tweed Local Environmental Plan 2000 (TLEP 2000); and 2(e) Residential Tourist pursuant to the TLEP 2000.
Pursuant to cl 20 of the TLEP 2000, subdivision within zone 7(a) is not permitted if the area of each allotment is less than 40 ha. The Council raised this as a contention, however no subdivision is proposed within the land the subject of this zoning, and the 7(a) land is to be incorporated into the proposed Lot 13 (public reserve). The only development to be carried out within proposed Lot 13 is the environmental facility, which means the restoration and rehabilitation of salt marsh and other native vegetation.
Similarly, the land zoned 2(e) is to be incorporated into proposed Lot 13, and again only subject to vegetation restoration and rehabilitation. I have considered the aims and objectives within the TLEP 2000 that are relevant to this development, and am satisfied from the expert evidence and the submission of Palm Lake that the proposed development meets the requirements of cl 8 of the TLEP 2000, and that the proposed works are permissible within both zones under this instrument.
The application was notified between 15 July and 12 August 2020. 109 unique submissions were received in this time. The amended application was notified from 18 September to 16 October 2024, during which time 361 submissions were received. The further amended application was finally notified from 21 May to 18 June 2025, and a further 68 submissions received. From the numerous submissions made in these three periods, which form Exhibit 2, some expressed conditional support and some unconditional support, but by far the majority raised objections to the proposed development. Loosely grouped, the concerns of the objectors are:
The social, cultural and health impacts of many applications over time, and past unauthorized and allegedly illegal works.
Flood risk and impacts to properties outside the subject site.
Ecological impacts.
Inappropriate development for the site.
Visual impacts.
Although I sympathise with the many long-term residents who have given time and attention interrogating and ultimately resisting multiple prior proposals for this site, and to raising issue with past unauthorised works, it is the site before me in its current state and the applications that are currently before the Court that I must consider in these proceedings.
As topics 2 to 5 above were also raised by the Council, I will address the community’s concerns in the discussion below.
It is without doubt that this site is subject to flooding from various sources. In Ex 8, the experts jointly identify the potential sources of inundation of the subject site as any of, or a combination of, the following:
Rainfall on the catchments of Cudgera and Christies Creeks of sufficient magnitude to overtop the riverbanks and inundate the site.
Coastal storm surge and extreme high tides
Rainfall on the local catchment to the north of the site, including rainfall on the existing development area along Creek Street.
The flood levels are summarised in Ex 8, confirming that the 100 year ARI flood level is 2.6m Australian Height Datum (AHD) and the Probable Maximum Flood level (PMF) is 4.0m AHD.
Section A3 of the DCP defines the ‘design flood’ as the flood selected as the basis for design of mitigation works, normally based on the 1:100 year flood event (Section A3.1.5). The design flood levels are determined by the 100 year ARI flood levels based on the Tweed Valley Flood Study Update 2009 and Coastal Creeks Flood Study 2009, and are therefore also nominated as 2.6m AHD.
The entirety of the proposed internal road will be above the worst case 100 year flood event, except where it connects to Creek Street to the north, however the site will be completely inundated in a PMF event.
As a result of these flood levels and the low-lying land, the roads leading out of this development and indeed out of Hastings Point are readily inundated even in relatively minor flood events. The experts confirmed that Creek Street and parts of Tweed Coast Road will be inundated in floods greater than a 1:10 probability. The experts also confirmed that it is widely accepted that driving through flood waters of any depth is risky and is to be strongly discouraged. Given the propensity of all nearby roads to be inundated, it is clear that evacuation is not an option for the existing residents of Creek Street, nor for any future residents of this site.
There are several documents informing the flood studies of this site, which I will identify in order from the high level to site-specific:
The NSW Government Floodplain Development Manual of April 2005 (Exhibit J) (FDM) is the document that overarches all detailed flood studies and policies. The FDM “guides councils in the development and implementation of detailed local floodplain risk management plans to produce robust and effective floodplain risk management outcomes” (Ex J page i).
The Tweed-Byron Coastal Creeks Flood Study by BMT WBM (Flood Study) was prepared for the Tweed and Byron Shire Councils in 2010, in accordance with the FDM.
The Tweed Coastal Creeks Floodplain Risk Management Study (Risk Management Study) (Exhibit N) and Floodplain Risk Management Plan (Risk Management Plan), both by BMT WBM dated December 2015, were informed by the above Flood Study.
The DCP, at Section A3 and Section B23 ‘Hastings Point Locality Based Development Code’ was also informed by the Flood Study. Section A3 contains controls relating to Development of Flood Liable Land. Section B23 provides a more detailed, site-specific development control plan, including a precinct-specific strategy for Creek Street at 4.3 of DCP Section B23.
A Shelter in Place Guideline for Flash Flooding has been prepared by the NSW Department of Planning Housing and Infrastructure in 2025 (SIP Guideline) (Exhibit K) that is intended to assist the review of development applications. This applies to all land subject to flash flooding, and therefore applies to the site. Both flooding experts agree that this document is a consideration of the Court in these proceedings.
A Flood Response Assessment Plan (FRAP) prepared by Burchills dated May 2024 forms Exhibit C tab 16. This document confirms that the preferred strategy for all flood events is for refuge in place in dwellings with habitable floor levels set above the PMF.
A Flood Impact Assessment (FIA) dated June 2024 prepared by Burchills forms tab 15 of Ex C and is fundamental in understanding the flooding impacts of the application that is now before the Court.
DCP Section B23 of the DCP describes the flood affectation of the wider Hastings Point locality, stating that much of the area is likely to be flood affected by 1 in 100 year storm events and probable maximum floods. It states that “developments need to comply with the development controls set down in the Tweed Development Control Plan Section A3 – Development of Flood Liable Land”.
DCP Section A3.2.6 sets out the emergency response provisions for residential development at Table B, stating that all new development is to have permanent high-level road/pedestrian evacuation routes to land above PMF level and/or adequate PMF refuge, subject to the recommendations of an acceptable FRAP. Notes 3 and 4 of this section provide design criteria for the instance where evacuation is not an option for flood risk management, as is the case here.
Regarding the applications before me, there is nothing in this subdivision application to indicate that future dwellings on the individual lots could not comply with the requirements of DCP Section A3 Note 4 – PMF Refuge for Residential Development or Note 5 – Flood Response Assessment Plan. I also note that, as the subdivision is less than 5ha, no high-level evacuation route is required under the DCP.
At 4.3 of Section B23, the DCP specifically anticipates residential development on the subject site, and provides strategies to guide it. Section B23 also anticipates a ‘shelter in place’ strategy for development on this site in Section 4.2.3.4 at 16, stating that, “new dwellings within Lot 156 are to provide a PMF refuge in accordance with provisions within Council’s Flood Liable Land section of the Tweed DCP.”
Despite this, the Council contends that the flood modelling, upon which the design of the subdivision is based, is outdated and therefore fundamentally flawed.
The overarching FDM suggests that adopted management plans should be reviewed in response to certain triggers, such as: time (around every 5 years); following significant flood event; where significant changes occur to the factors influencing the decisions in the plan; where impediments to implementation exist that warrant a review; and where changes in future land use trends outside those considered in the management plan are proposed. No formal review of the Flood Study has occurred in the fifteen years since publishing in 2010, despite there being two significant flooding events in 2017 and 2022.
The Council submits that this indicates that the Risk Management Study, which is based on the Flood Study and informs all detailed flood risk management and flood planning, is outdated and potentially incorrect. Mr Prentice expressed his concern that the flood modelling does not respond to current climate science data, nor current flood estimation methods and that there is a subsequent risk that the flood design levels are inadequate.
I note however, as Mr Bewsher pointed out in oral evidence, the lack of updates to the Flood Study or Risk Management Study does not necessarily confirm that these documents have not been reviewed, but rather that no changes have been made in this time. I also note that the DCP has been updated in this time, and makes specific references to the 2017 floods in Section A3 at A3.2.7, which describes policy amendments in response to this flood.
Mr Prentice has confirmed, as supported by the Council minutes (Ex 22), that the Flood Study is currently under review however no draft is available to the Court, and the timetable of the review and its implementation is unknown.
Palm Lake submit, and I concur, that in the absence of any known outcome of this review, development must be appropriately assessed based on the existing, Council-adopted documentation and as a result, the modelling, risk assessment and expert evidence is appropriately based on the existing documents listed above. I further note that both flooding experts are highly experienced, and their evidence in these proceedings serves to supplement, as best possible, any knowledge gaps that may exist between the formal policy and studies and the real-world conditions. It would be unreasonable and irregular to stymie development consent for applications that comply with the Council’s development standards on the basis of a possibility of those standards changing at some time in the future. There is no other data before the Court that clarifies how or if the flood levels on this site are likely to change.
Further, I note a specific reference at 1.5.1 in the Risk Management Study that responds to the concerns raised in community consultation regarding development on this site. The study notes the concerns raised, and confirms “no concerns regarding the validity of the flood model for a flood impact assessment for the project on Creek Street.” This modelling includes consideration of the 2005 flood mentioned by residents at the site view.
Mr Bewsher confirms in Ex 8 that the Flood Management Study and Plan both consider the development of the site, addressing the hydraulic impacts of filling the entirety of the 17ha site, not just the smaller 1.8ha portion that is proposed to be filled in this application. Although the experts disagree on the methodology behind the modelling, they both agree that the proposed fill is substantially less than used in the model and that consequently, the likely impacts are less.
The development has been designed to flood. It has been designed with a building pad that, as per the DCP, is high enough to provide covered services with adequate drainage for the sewer and stormwater to each lot but does not form the foundation of a dwelling. The building pad, set at a level of 3.2-3.6m AHD, is above the design flood level of 2.6m AHD plus 500mm freeboard as set out in the DCP, but below the PMF of 4.0m AHD. Proposed conditions of consent state that future dwellings must be built with a habitable floor level above the PMF. Should a PMF-level flood occur, occupants are to shelter in place.
The flood modelling of the proposed development has been enhanced through the joint reporting process to include a total of 20 scenarios representing the various potential combinations of potential flooding to the site up to a 1:100 flood event (Ex 8). In all but one of those scenarios, the modelled hazard level ‘H1’ as per Section A3, figure 2.2 of the DCP, which is defined as ‘generally safe for people and vehicles’. Only one of the modelled scenarios reaches a level of H2 hazard for a one and a half hour period, during which the flood levels are unsafe for small vehicles. An emergency vehicle would be able to access the site in all modelled 1:100 scenarios.
In a PMF event, which was also considered by the experts, water levels could reach around 1.7m above the low point on Creek Street. This would be classified as a H4 Hazard: unsafe for both people and all vehicles, during which time all people on site would be sheltering in place at a floor level above the PMF. The experts note that Hastings Point as a whole can be isolated in a flood for between 2-4 days, and this site would not differ from this.
As outlined above, this design is in accordance with the DCP, which anticipates this flooding and provides for a shelter in place strategy at Section B23.
The potential risk to life and property resulting from the development must be considered with regard to both on-site and off-site impacts.
Regarding off-site impacts, the experts confirmed in oral evidence and in Ex 8 that the proposed development raises flood levels in some areas off-site by less than 10mm, and in other areas off-site reduces flood levels by up to 25mm. The result of this, in their joint, expert opinion, is that the proposed filling and development of the site will not have a material actionable impact on the flood behaviour on existing properties along Creek Street (Ex 8, [38]). From this I am satisfied that the off-site impacts of flooding, and subsequent risk to life and property is acceptable.
Regarding the on-site impacts
, I have already noted that the proposed development relies on a shelter-in-place strategy, which aligns with the Council’s planning controls in the DCP. The Council refers in their case to the SIP Guideline to support their case that a shelter in place strategy is not a suitable emergency management strategy for this site.
The SIP Guideline is nuanced and high-level, and focussed on flash flooding rather than all flood events. The parties interpret this document differently, and fundamentally disagree on the weight I should attribute to it and its relevance to the proposed development. In oral evidence, Mr Bewsher stated that it is intended to guide strategic planning, and interprets the guideline as stating that shelter in place should not be used as the basis for making a proposed development safe in a flood event. Mr Prentice is of the opinion that the guideline is clear and unequivocal, in stating that shelter in place is not an acceptable strategy in flash flooding environments.
Noting that it is a government document, published this year, and that this site does experience flash flooding, I turn to the ‘shelter in place’ considerations listed at p3. When applying these considerations to the proposed development, I note the following:
Hastings Point is a low-lying coastal village that is subject to inundation in many parts. The roads leading out of the village do not consistently allow for safe evacuation in a flood event, irrespective of any works on this subject site. As demonstrated by the DCP controls, shelter in place aligns with the existing emergency management strategies for the area, as determined through the flood risk management process. No evidence was presented to the Court regarding any consultation with the SES.
Evacuation off-site has been investigated, and is determined to be unachievable due to the low-lying roads leading from the site.
The development does not include medical centres, emergency service and community facilities or sensitive and hazardous land uses that would be unsuitable for shelter in place.
There was some dispute as to whether the site would be classified as greenfield or not, in which shelter in place is not supported in this document. I accept Palm Lake’s categorisation of the site as infill development, as there is an existing dwelling on the site and the proposed development fills in the remaining land zoned for residential purposes on this otherwise residential street.
Although there are not locality-specific flood gauges that will trigger a government-issued warning of an impending flood, I accept the evidence of Mr Bewsher that severe weather warnings and other rainfall predictions issued by the Bureau of Meteorology would provide some advance warning of a likely flood.
The various flood response plans that apply to the site and individual dwellings, and the nominated flood warden for the development, should enable residents to be effectively informed of the risks associated with flooding and of the emergency management strategy.
The SIP Guideline then provides further criteria for consideration of the suitability of the site for shelter in place. I am satisfied on the evidence in Ex 8 and the oral evidence of the flooding experts that the remaining criteria have been considered and adequately addressed, or could be appropriately addressed in the assessment process for each individual dwelling constructed on this site.
The Floodplain Development Manual by NSW Government (Exhibit J) states that private or site-specific flood plans written for individual developments should not form the basis of consent. Although this application includes a sitewide FRAP, and also requires individual flood response plans, Mr Bewsher submits, and I concur, that they do not fundamentally make an unsafe site safe during a flood event. Rather, the site is made safe by requiring all dwellings to be built at a height above the PMF. Any further individual plan will assist in better understanding the household flood response, but not in forming a basic level of safety.
In considering the SIP guideline, I do not elevate this document above any statutory controls or the DCP, noting that it is a guideline only. Regardless, it is one with which I find that the development is generally consistent, so far as is relevant and the shelter in place strategy is appropriate for the site.
From this evidence, I am satisfied that the development application has adequately considered and addressed the risk to life and property from flooding, to the extent that it can for an application for subdivision and infrastructure works. I am further satisfied that this risk has been assessed by both the Council in the preparation of their DCP, and the experts in their evidence, and find that the risk to life and property of this development is acceptable.
I note that the flood-related clauses of the TLEP, cll 5.21 and 5.22 do not apply to this development due to the relevant savings provisions. As such, it is compliance with the DCP and consistency with the various flooding documentation listed above that I must consider.
The stormwater design has been developed to manage flows and infiltration, and to reduce, in some instances, the off-site impacts of flooding as compared to the current situation. A combination of swales and the location and siting of fill is the result of iterative amendment in consultation with the Council throughout the development assessment process.
Given my findings regarding the risk to life and property, and the compliance of the proposed development with the detailed flood-related provisions of the DCP, land zoning, and TLEP, I accept the position of Palm Lake that the site is suitable for the intended development in terms of flooding.
The Council contends that the proposed development will unacceptably impact on sensitive ecological communities both within and adjacent to the site. This is principally because of the incursion of the proposed development into environmental protection buffers set out in the DCP, and a potential clash between areas of koala habitat offset and future constraints of the site.
Figure 3 below shows the threatened ecological communities within the site, which includes coastal saltmarsh, littoral rainforest, swamp oak floodplain forest and swamp sclerophyll forest. Coastal wetlands are located in proximity to the site. Figure 3: BC Act listed Threatened Ecological Communities within the subject site (Source: Exhibit 12 Figure 4)
Expert ecological evidence was provided by David Roberston for Palm Lake and Damian McCann for the Council, both of whom gave oral evidence during the hearing. Arboricultural evidence was provided by Roger Rankine for Palm Lake and Peter Gray for the Council. Joint reports were produced, which included the topics of ecology alone in Exhibit 12, and ecology and arboriculture together in Exhibit 16. Supporting reports submitted with the application or amended application include:
Biodiversity Development Assessment Report by Cumberland Ecology dated 18 June 2025 (BDAR) (Tab 7 Ex F).
Habitat Restoration and Biodiversity Management Plan by Cumberland Ecology dated 25 June 2025 (HRBMP) (Ex M).
Vegetation Management Plan by Cumberland Ecology dated 25 February 2021 (tab 27 Ex A).
The State Environmental Planning Policy (Koala Habitat Protection) 2020 (Koala SEPP) (Ex 4 tab 63) applies to the development in its historic version dated 30 November 2020 to 16 March 2021. Sections 8, 9 and 10 of the Koala SEPP set out the steps in development control of koala habitat: establishing whether the land is core koala habitat, and establishing whether a development application is inconsistent with any applicable koala plan of management.
The site is mapped as Core Koala Habitat, and located within the Southern Tweed Coast Koala Management Area (KMA) and is subject to the Tweed Coast Comprehensive Koala Plan of Management 2020 (KPOM) (Ex 4 tab 67). The KPOM applies to development proposals that require consent or approval of Council, as is the case here. The KPOM states the management objectives of the KMA are:
“a) To actively reduce threats to existing koalas and unoccupied koala habitat.
b) To increase the area, quality and connectivity of koala habitat in the vicinity of existing koala populations sufficient to support a viable population of koalas.
c) To ensure that any development affecting koalas or their habitat mitigates any impacts and contributes positively to koala recovery within the KMA.
d) To ensure that the community is fully engaged in the task of koala recovery.
The site lies within the Koala Beach Koala Activity Precinct, which is stated in the KPOM to contribute “to the connectivity provided by protected bushland areas…by maintaining habitat for future expansion of the Koala Beach metapopulation cells”.
Prior to the amendment of the application in this hearing, the proposed development included the removal of two critical koala feed trees including tree T1, a Forest Red Gum adjacent to Creek Street. To offset these two trees, 2.89ha of land was proposed to be revegetated as koala habitat, and an area of pre-existing habitat was to be protected and enhanced. The Council rejected the inclusion of the existing habitat in the offset provision, on the position that it was contrary to the KPOM, and therefore contravenes the Koala SEPP. During the joint reporting process however, efforts were made to reduce both the extent of impact and the necessary offset requirements. As a result, the amended application retains tree T1, reducing the need for koala offsets to 1.84ha of new habitat. Irrespective of this, planting of koala habitat remains at the previously proposed 2.89ha, exceeding the required offset by just over 1ha.
Despite the excess provision of new koala habitat, the efficacy of the areas set out for offset planting were disputed by the ecology experts. Mr McCann stated in Ex 12 that “the site remains very constrained with regards to available space for planting of koala habitat while accommodating landward migration of saltmarsh, public open space and requirements for managing bushfire and flood risk.” In oral evidence, Mr McCann identified several management zones as shown on Figure 15 of the Habitat Restoration and Biodiversity Management Plan by Cumberland Ecology dated 25 June 2025 (HRBMP) (Ex M) with which he took issue. These management zones overlap with the koala offset areas, and Mr McCann drew particular attention to Zones 3, 4, and 8.
Zone 3 is marked ‘koala habitat restoration’ and is adjacent to swamp oak floodplain forest. Mr McCann states that the likely incursion of saltmarsh into this area over time will reduce the area available for Koala Habitat. Zone 4 is marked as ‘widely spaced trees’ but also needs to function under constraints of flood and bushfire management. Mr McCann submits that these constraints, as well as the potential use for passive recreation and the landward migration of estuarine communities, render this zone unviable as an offset with long-term viability. Zone 8 is marked ‘Swamp Oak Floodplain Forest’, which Mr McCann, as far as I understand, expresses concerns about the long-term viability of the vegetation community again due to landward migration of estuarine communities.
In consideration of this, I accept the evidence of Dr Robertson that the proposed offsetting is acceptable. Regarding long-term viability of vegetation communities, Dr Roberston submits that while there may be some landward movement of saltmarsh, there is an excess hectare available before the required offset area is affected. Further, he submits that passive recreation and understorey management for flooding and bushfire will improve access for koalas to the feed trees in zone 4, as dense vegetation can sometimes hinder their movement. He notes that koala feed trees such as Forest Red Gums and saltmarsh can coexist, as observed at the site view.
From this I am satisfied that not only does the proposed development include more koala habitat offset than is technically required under the KPOM, but also that it is consistent with the KPOM. I am therefore satisfied that the proposed development meets the provisions of the Koala SEPP.
Pursuant to the provisions of Ch 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the site is mapped with the following coastal environment or management constraints:
Parts of the site are mapped as ‘coastal wetlands’ or ‘coastal wetland proximity area’, pursuant to Pt 2.2 Div 1.
The whole of the site is mapped as ‘coastal environment area’ pursuant to Pt 2.2 Div 3.
The majority of the site is mapped as ‘coastal use area’ pursuant to Pt 2.2 Div 4.
This places numerous constraints on the site, and matters which I must consider prior to granting consent for development within these mapped areas.
The DCP also provides detailed development controls which, amongst other things, apply a series of ecological buffers to the site (Section B23, 4.2.2). These include:
A 75m buffer to the intertidal and salt marsh extents of Christies Creek;
A 75m buffer to areas of high wetland conservation value (as mapped by Australian Government Department on the Environment and Heritage);
A 75m buffer to the intertidal and salt marsh extents identified to the western edge of the site;
A 20m buffer to existing terrestrial native vegetation located within the eastern, south western and western parts of the site; and
A 100m buffer to State Environmental Planning Policy No 14—Coastal Wetlands (now repealed) Wetland areas
These are mapped at figure 4.9 of the DCP section B23 and define a developable area for the site in the leftover space, which then guides the DCP controls. The DCP states at 4.2.2 that “the areas of environmental significance and their buffer areas are to be retained as areas of environmental protection and are not to form a component of the urban development of Lot 156 including roads and stormwater treatment systems.”
The proposed development encroaches into the DCP buffers to the extent shown in Figure 2 below, which is approximately 1.1ha in the Council’s submission. The majority of encroachment is caused by roads and infrastructure, and the existing dwelling to the south-east of the site. I note that, as evidenced by the base aerial photograph used in Fig 4.9 of the DCP, that this dwelling already existed when these buffers were mapped, encroaching into both the 75m saltmarsh and 25m vegetation buffers. No regard is given in the DCP to bushfire or flood management requirements to this dwelling, and any implications for the ecological buffers in the DCP provisions. Figure 4*:* Buffers under Strategy 02 of Section B23 of the DCP (Source: Exhibit 12 Figure 6*)*
The Council submits that the application should be refused because the incursions into the buffers are contrary to the development controls established in the DCP at Section B23 4.2.2. Further, they submit that, as the role of an ecological buffer is to act as a separation between two land uses, the required buffers provide an appropriate and necessary protection for the threatened ecological communities on this site. Finally, they submit that the DCP buffers are in no way inconsistent or incompatible with the requirements of the SEPP RH, because they simply inform the considerations made under the relevant parts of Ch 2 and s 4.15 of the EPA Act.
Palm Lake submit that the provisions of Section B23 4.22 of the DCP, in prohibiting development within the buffer zones, are fundamentally inconsistent and incompatible with the provisions of the SEPP RH. Sections 2.8, 2.10 and 2.11 of the SEPP RH provide that development consent may be granted on land within areas mapped as ‘proximity to coastal wetlands’, ‘coastal environment area’ and ‘coastal use area’, subject to consideration of the impacts of the proposed development on a number of matters, and satisfaction of further matters. In contrast, the DCP prohibits development within these areas in totality, and as a result Palm Lake submit that the DCP is inconsistent and incompatible with the SEPP RH, and pursuant to s 3.43(5) of the EPA Act, the provisions of DCP B23 4.22 Strategy 02 have no effect.
I concur with Palm Lake with respect to the application of the DCP in relation to prohibiting development within the mapped ecological buffers, however I note that the provision has no effect only to the extent of the inconsistency or incompatibility. I therefore find that it is relevant to consider the environmental impact of the incursion of the proposed development into the buffer zones, but not to prohibit development if those impacts are acceptable, pursuant to the relevant parts of the SEPP RH.
To that end, I turn to the BDAR and the expert evidence to inform my consideration of the relevant matters listed in the SEPP RH. Importantly, I note that the experts agree that the BDAR was prepared correctly in accordance with the Biodiversity Assessment Method, and is adequate for its intended purpose.
Regarding ‘proximity area for coastal wetlands’, s 2.8 of the SEPP RH states:
“(1) Development consent must not be granted to development on land identified as “proximity area for coastal wetlands” or “proximity area for littoral rainforest” on the Coastal Wetlands and Littoral Rainforests Area Map unless the consent authority is satisfied that the proposed development will not significantly impact on—
(a) the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or
(b) the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest.”
A joint report of hydrology experts is before the Court as Exhibit 5. This report confirms that the potential hydrological impacts result from: the creation of impervious surfaces; reduced evaporative demand by removing vegetation, and; changes to the rate, volume or quality of waters reporting to the receiving environment. Bioretention swales have been incorporated into the development to minimise these impacts, and the experts are satisfied that the development will not significantly impact on the hydrological integrity of the adjacent coastal wetland, nor on the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland.
Based on the assessment in the BDAR at 7.5.2, I am also satisfied that the proposed development will not significantly impact on the biophysical or ecological integrity of the adjacent coastal wetland. I am therefore satisfied that the requirements of s 2.8 of the SEPP RH are met.
Regarding development on land within the ‘coastal environment area’, s 2.10 of the SEPP RH relevantly reads:
“2.10 Development on land within the coastal environment area
(1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following—
(a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,
(b) coastal environmental values and natural coastal processes,
(c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,
(d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,
….
(f) Aboriginal cultural heritage, practices and places,
…
(2) Development consent must not be granted to development on land to which this section applies unless the consent authority is satisfied that—
(a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subsection (1), or
(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or
(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.”
For the same reasons as my findings for SEPP RH s 2.8, I am satisfied that the expert evidence demonstrates that the proposed development is not likely to cause an adverse impact on the items listed at ss 2.10(1)(a), (b), (c), and (d).
From the Cultural Heritage Assessment by Everick Heritage Consultants Pty Ltd dated 25 February 2021 (Ex A tab 22), emails between Palm Lake and the Local Aboriginal Land Council (LALC) at tab 16 of Ex 4, and the explanation in the development assessment report at tab 48 of Ex 4, I am satisfied that the development is not likely to cause an impact on Aboriginal cultural heritage, practices and places. Of particular note is the deliberate avoidance, and therefore protection of, the scar tree to the north of the proposed loop access road.
On this basis, I am satisfied that the development has been designed, sited and will be managed to avoid an adverse impact in the coastal environment area of the kinds referred to in s 2.10(1) of the SEPP RH.
Impacts on the ‘coastal use area’ are discussed below in consideration of planning-related matters.
Regarding the relevant DCP controls within B23 of the DCP, in consideration of the efficacy of the ecological buffers, I turn to the detailed assessment of the likely impacts of the incursion set out in the BDAR at 6.1.2.3. From this, and from my findings on SEPP RH ss 2.8 and 2.10, I am satisfied that strict compliance with the buffers in the DCP is unnecessary in this case as the impacts on these sensitive environments have been thoroughly assessed, and are acceptable. The ecological evidence confirms that a slavish adherence to the buffer dimensions set out in the DCP is of limited utility in providing further protection to these ecological communities.
I am therefore satisfied that the ecological impacts of the proposed development are acceptable.
The Council contends that the proposed development represents fundamental diversions from the site-specific development controls in the DCP in terms of character, layout and lot size. They submit that these variations from the DCP controls result in a development with unacceptable impacts on the character, views and ecology of the area.
Expert evidence was provided by Darren Gibson for Palm Lake and Nicole Prentice for the Council through both oral evidence and joint expert reports which form Exhibit 10 for the Class 1 appeal, and Exhibit 15 for the Class 2 appeal.
In Section B23, the DCP controls anticipate residential development on this site, consistent with the R2 zoning of the TLEP. The form and density of this development is set out diagrammatically at Fig 4.12 (Figure 5 below) as a subdivision with nine new residential lots, retention of the existing dwelling, and environmental protection land beyond. Road access is from Creek Street, but no lots directly front the existing street. The layout is annotated as showing “allotments consistent with existing pattern of development along Creek Street by way of density, lot size, floor space ratio, setback, building height, building type and structural system. Figure 5*:* Creek Street Precinct Illustrative Plan, Fig 4.12 Section B23 of the DCP
The Council submits that the proposed lot layout differs fundamentally from the layout described by the DCP at 4.2.2.2, in that it has: no dwellings fronting Creek Street; a loop perimeter road; a large amount of fill; smaller lot sizes; and a different general arrangement. Despite the Council’s submissions that the layout could and should reflect this diagram, I concur with Palm Lake that there are several constraints that have led to this variation, and that adequately justify it. These include: the avoidance of a scar tree of aboriginal significance; the retention of a dense grove of vegetation directly adjacent to Creek Street; response to flooding and drainage requirements; the requirement for a perimeter road for bushfire safety, and; consistency with DCP item 14 of 4.2.2.2 for an internal road to form the interface with buffer areas, rather than back fences. The DCP states this road is for “ease of maintenance access and to act as a bushfire buffer as well as achieving a preferred urban design outcome.” Despite this, the diagram at Figure 4.12 does not entirely reflect this.
Each of these deviations from the DCP result in modifications to the layout in figure 4.12 that are, in my opinion, justified. Further, I note the requirement in the DCP for a continuation of the character of Creek Street, and again concur with Palm Lake that this character necessarily changes at this point due in part to the retained vegetation, and in part to the lack of street-facing houses on the opposite side of the road. At the western end where Lot 156 is accessed and the proposed development starts, Creek Street is not characterised by a continuation of street-facing houses. Instead, it is presented with the cyclone fencing, shed, gas tank and other services to the rear of the North Star Holiday Park, and a dense grove of vegetation that the Council, and Palm Lake, both wish to retain. A diversion from the pattern of houses with open front gardens and scattered vegetation fronting Creek Street is entirely justified in this location, to reflect the actual conditions and the existing constraints of the site and surrounds.
I further accept that the layout in DCP figure 4.12 is an indicative diagram that illustrates how the relevant development controls could be implemented, not a fully tested and resolved scheme. Accordingly, I concur with Palm Lake that the variation to this layout does not represent a non-compliance, nor an unacceptable outcome.
Regarding view impacts, DCP Section B23 at 4.2.3.3 requires this development site to comply with Part 5 – Visual Settings. In oral evidence, Ms Prentice conceded that the key views as shown in the DCP will not be adversely affected by the proposed development, and further, that it is likely that proposed dwellings built to the height control of 8m will sit within the mid zone identified on DCP figure 5.2, where the Council deems it acceptable to see filtered views of buildings between within views of vegetation and the hills.
In support of the vegetation likely to support these filtered views, I note that the ecological works in the restoration area to the east of the development parcel (within the view lines) will include scattered planting of Eucalyptus tereticornis, at approximately 10m centres. I further accept the evidence of Dr Robertson that these trees, which are expected to reach approximately 30m at maturity on this site, will likely provide a visual buffer of sorts to future proposed buildings that are built within the development controls, on the proposed lots. I note this to confirm that, in my opinion, this subdivision is not a proposal that cannot possibly result in the design and construction of buildings to an acceptable form within it. However, I also note that this application makes no request for buildings and is for a subdivision only, and so the visual impact of future dwellings is of no direct consequence to these proceedings.
Regarding impacts on the ‘coastal use area’, SEPP RH s 2.11 provides:
2.11 Development on land within the coastal use area
(1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority—
(a) has considered whether the proposed development is likely to cause an adverse impact on the following—
(i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,
(ii) overshadowing, wind funnelling and the loss of views from public places to foreshores,
(iii) the visual amenity and scenic qualities of the coast, including coastal headlands,
(iv) Aboriginal cultural heritage, practices and places,
(v) cultural and built environment heritage, and
(b) is satisfied that—
(i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or
(ii) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or
(iii) if that impact cannot be minimised—the development will be managed to mitigate that impact, and
(c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.
The planning evidence confirms that the impact on the visual amenity and scenic qualities of the coast is acceptable. The application gives due regard to any relevant constraints set by Aboriginal cultural heritage, practices and places, and cultural and built environment heritage. The development does not constrain any existing access to and along the foreshore, nor does it result in overshadowing, wind funnelling or the loss of views between public places and foreshores. From this I am satisfied that the development is designed, sited and will be managed to avoid an adverse impact referred to in SEPP RH s 2.11(a).
From the information in the SEE and the Civil Engineering Report by Burchills dated 16 April 2025 (Tab 17 Ex E), and the expert planning, stormwater, hydrology and flooding evidence, I have considered the matters listed in TLEP cl 7.2 relating to earthworks, and am satisfied that the proposed earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.
For the same reasons, I am satisfied that through the design and layout of the building pad and swales that the proposed development meets the stormwater management requirements of TLEP cl 7.6.
For these reasons, I am satisfied that there are no planning matters that would result in a refusal of this application.
The TLEP 2000 sets out several matters that enliven the power of the Court to grant consent to the development application for works within the portion of the site zoned 7(a). This land is situated within the lot proposed as ‘environmental facility’. I have discussed some of these already in this judgment, and I set out the remainder here.
A Socio-Economic Impact Assessment by Sarah George Consulting, dated May 2024 (Ex C tab 27) confirms that the proposed development is not likely to have a significant social or economic impact in the locality or in the local government area of Tweed. This assessment meets the requirements of cl 17(3) of the TLEP 2000, and from this I am satisfied that the requirements of cl 17 are met.
TLEP 2000 cl 25 lists matters for consideration for development in zone 7(a). Evidence relevant to these matters is provided within the BDAR; the HRBMP; the Plan of Management by Cumberland Ecology dated 18 June 2025 (POM) (Ex F tab 10); the Assessment of Significance under the Fisheries Management Act 1994 by Cumberland Ecology dated 20 May 2024 (Fisheries Assessment) (Ex C tab 22); and the Hydrologic Regime Assessment by Gilbert + Sutherland dated May 2024 (HRA) (Ex C tab 19). Relevant matters are also addressed in the Hydrology joint report (Ex 5), which concludes that there are no outstanding hydrological or hydrogeological issues. From this evidence and the submission of Palm Lake, I have considered the matters listed in cl 25(3) and am satisfied that the proposed development is acceptable.
The development is adjacent to land zoned 7(l) Environmental Protection (Habitat) pursuant to the TLEP 2000 cl 28. From the evidence in the BDAR, the HRBMP, the Fisheries Assessment, the HRA and the POM, I have considered these matters and am satisfied that no matters arise pursuant to cl 28 that would necessitate refusal of the development application.
TLEP 2000 cl 31 provides for development adjoining waterbodies, and requires the Court as the consent authority to determine a distance from the mean high-water mark for the purposes of assessment under this clause. In having regard to the considerations listed at cl 31(5), I note that the only works proposed are environmental restoration works as an ‘environmental facility’, and that these works would preserve the scenic quality of foreshores; minimise the risk of pollution of waterways; protect foreshore ecosystems; and not adversely impact the intended or planned use of the foreshore. From this I am satisfied that the distance from the mean high water mark should be set at nil, and subsequently that the development meets the provisions of cl 31.
The FIA informs my consideration of the flooding-related matters listed at TLEP 2000 cl 34 from which, and for the reasons already stated, I am satisfied that any flood-related impacts on the land the subject of the TLEP 2000 are minimal, and acceptable.
An Acid Sulfate Soils Management Plan by Douglas Partners dated 25 March 2025 (ASSMP) (Ex E tab 25) informs consideration of TLEP 2000 cl 35. The site contains acid sulfate soils mapped as Class 1, 2 and 3. Pursuant to cl 35(4)(a), the parties agree that acid sulfate soils are present within the area of proposed works. The ASSMP has been prepared in accordance with guidelines published by the Environmental Protection Authority, and includes sufficient measures to prevent the oxidation of acid sulfate soils and the discharge of acid water from the area of the proposed works. This also meets the requirements of TLEP cl 7.1.
Based on the Bushfire Protection Assessment by Travers Bushfire & Ecology dated 17 May 2024 (Ex C tab 23) and the evidence in the Bushfire Joint Report (Ex 6) and Supplementary Bushfire Joint Report (Ex 11) I have taken into account the matters listed at cl 39A(2) of the TLEP 2000, and had regard to the provisions of Planning for Bush Fire Protection 2019, and am satisfied that the bushfire risk to built assets and people, and the threat to ecological assets and environmental assets is minimised.
Section 89 of the Local Government Act sets out matters for consideration when making a determination on applications for approval under this Act. A Review of Environmental Factors by Zone Planning NSW dated 16 April 2025 (REF) (Ex E tab 6) sets out the compliance with the requirements in s 89(1). From this, from the Civil Engineering joint report (Ex 17), and from Palm Lake’s submission, I am satisfied that no matters arise from this that hinder the power of the Court to grant approval to this application.
Matters relating to the environmental impact of these works are also discussed below with reference to the s 138 application, and are applicable to the s 68 application, noting my conclusion at [118] that the environmental impacts of these proposed works are acceptable.
TLEP cl 7.10 requires the satisfaction of the consent authority prior to the grant of consent, that all essential services listed are available, or that adequate arrangements have been made to make them available when required. Based on the application before the Court I am satisfied that the supply of electricity, disposal and management of sewage, stormwater drainage and vehicular access are all available. Although water supply exists, the capacity of the existing infrastructure is insufficient to service the proposed development. The purpose of the works proposed in the s 138 and s 68 applications are to, in part, increase this capacity. Through the granting of consent in these proceedings to these two applications along with the development application, I am satisfied that adequate arrangements have been made to make the supply of water available when required.
The Council contends in their Statement of Facts and Contentions (Ex 14) that a development consent is required in order to carry out the works requested in the s 138 application. The Council did not press these contentions in the hearing, and noted that the question of development consent is not one that affects the power of the Court to grant approval under s 138 of the Roads Act.
Under Div 5.1 of the EPA Act, I must determine whether the proposed works are likely to significantly affect the environment, and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the proposed works (s 5.5).
Detailed assessment has been carried out by the relevant experts to assess impacts on arboriculture, ecology, hydrology, hydrogeology, engineering and town planning, and the environmental impacts of these works were considered acceptable. From this evidence I am satisfied that the proposed works are not likely to significantly affect the environment, and that an EIS is not required pursuant to s 5.7 of the EPA Act.
I am therefore satisfied that there is no relevant jurisdictional test that precludes the granting of consent in the Class 1 appeal, nor the approval of the Class 2 appeal.
The conditions of consent for the s 138 and s 68 applications are agreed by the parties, however two conditions in relation to the development application are disputed.
The first is condition 25, proposed by the Council, which imposes a requirement for a further application to be made to the Council pursuant to s 138 of the Roads Act for works pursuant to the development consent located within the road reserve. Palm Lake reject this condition on the assumption that the Court will also grant the s 138 application if development consent is granted. I accept the position of Palm Lake, noting that the s 138 application before the Court, for which I intend to grant consent, includes the listed requirements of proposed condition 25. This condition is therefore unnecessary.
The second disputed item of the draft conditions is condition 27. The wording of proposed condition 27 is as follows:
Permanent stormwater quality treatment shall be provided in accordance with the following:
(1) The Subdivision Works Certificate Application shall include a detailed Stormwater Management Plan (SWMP) for the occupational or use stage of the development in accordance with Section D7.B2 of Council’s Development Design Specification D7 - Stormwater Quality.
(2) Permanent stormwater quality treatment must comply with the site-specific objectives developed within the Hydrologic Regime Assessment, prepared by Gilbert & Sutherland (May 2024).
Any required design amendments shall only be accepted where they are supported by best practice water sensitive urban design principles entailed in the “Water by Design” guidelines (being a program of the South East Queensland Healthy Waterways Partnership) and ensure no change site hydrology compared to pre-development and an improvement in water quality compared to the pre-development condition.
Any required design amendments shall only be accepted where they are supported by best practice water sensitive urban design principles entailed in the “Water by Design” guidelines (being a program of the South East Queensland Healthy Waterways Partnership) and ensure no significant impact to the hydrological integrity of the coastal wetland and an improvement in water quality compared to the pre-development condition.
The Court orders:
The appeal is upheld.
Development application DA20/0386 for civil works, a stormwater management system, construction of roads, an environmental facility and subdivision is determined by the grant of consent subject to the conditions at Annexure A.
The application made on 13 January 2025 pursuant to s 138 of the Roads Act 1993 (NSW) for road works, water supply works and associated works in Creek Street, as well as the road widening, retaining walls, footpath and associated works in Tweed Coast Road, Hastings Point, as amended, is determined by way of consent subject to the conditions at Annexure B.
The respondent is directed to register the development consent on the NSW planning portal in accordance with s 4.20(1) of the Environmental Planning and Assessment Act 1979 (NSW) within 14 days of the date of these orders.
All exhibits are retained except for exhibits N, O, 19, 20, 21, 22 and 23, which are returned.
The Court orders:
The appeal is upheld.
Application SWSW24/0005, made pursuant to s 68 of the Local Government Act 1993 (NSW), to carry out water supply and sewerage works servicing Lot 156 DP 628026 at 40 Creek St Hastings Point NSW is approved subject to the conditions at Annexure C.
All exhibits are retained except for exhibits N, O, 19, 20, 21, 22 and 23, which are returned.
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Annexure A (644 KB, pdf)
Annexure B (212 KB, pdf)
Annexure C (187 KB, pdf)
Palm Lake Works Pty Ltd
Tweed Shire Council [2025] NSWLEC 1847