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[2026] NSWLEC 1020
General information, not legal advice.
Land and Environment Court (NSW)
2026-01-15
Kullen AC
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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: RANJ Group Pty Ltd v Shellharbour City Council [2026] NSWLEC 1020
Hearing dates: Conciliation conference on 20 November 2025
Date of orders: 15 January 2026
Decision date: 15 January 2026
Jurisdiction: Class 1
Before: Kullen AC
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted to Development Application No. DA 0233/2024 (as amended) for the demolition of existing structures, Torrens Title subdivision to create 2 residential lots, tree removal and construction of a dwelling house with attached secondary dwelling on each proposed lot, on Lot 6 Sec A in DP11044, known as 71 Reddall Parade, Lake Illawarra NSW, subject to the conditions of consent at Annexure A.
Catchwords: DEVELOPMENT APPEAL — conciliation conference — agreement between the parties — orders
Legislation Cited: Biodiversity Conservation Act 2016 (NSW), s 7.7
Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17, 8.7, Sch 1, Div 2, cl 7
Land and Environment Court Act 1979 (NSW), ss 34, 34AA
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
Shellharbour Local Environmental Plan 2013, cll 2.2, 2.6, 2.7, 4.1, 4.3, 4.4, 5.4, 5.21, 6.1, 6.3
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2
State Environmental Planning Policy (Resilience and Hazards) 2021, Pt 2.2, ss 2.10, 2.11, 2.12, 2.13, 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48
Texts Cited: Shellharbour Development Control Plan 2013
Category: Principal judgment
Parties: Allan Harriman (First Applicant)
Hanna Harriman (Second Applicant)
Milica Harriman (Third Applicant)
Matthew Harriman (Fourth Applicant)
RANJ Group Pty Ltd (Fifth Applicant)
Shellharbour City Council (Respondent)
Representation: Counsel:
C Parsons (Solicitor) (Applicants)
L Mulligan (Solicitor) (Respondent)
Solicitor:
Project Lawyers (Applicants)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2025/38076
Publication restriction: Nil
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 the Shellharbour City Council of development application No. DA-0233/2024 (the DA).
The DA seeks consent for demolition of existing structures, Torrens Title subdivision to create 2 residential lots and construction of a dwelling house with attached secondary dwelling on each proposed lot at 71 Reddall Parade, Lake Illawarra, NSW, 2528, legally known as Lot 6 Sec A in DP 11044 (the site).
The DA was lodged with the Respondent on 9 September 2024. On 17 January 2025 the Respondent refused the DA. On 30 January 2025, the Applicant filed Class 1 proceedings with the Court.
The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 5 March 2025. The Applicant lodged a Statement of Facts and Contention in Reply with the Court on 11 April 2025.
One submission had been received by the Respondent in response to the notification of the DA. Amended DA plans were subsequently subject to re-notification.
The parties filed a s 34 agreement with the Court on 31 October 2025 based on the amended DA.
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 20 November 2025. I presided over the conciliation conference. The submitter did not indicate a wish to the Respondent to attend the on-site view, which was vacated at the request of the parties.
At the commencement of the conciliation conference, the parties confirmed that they had reached a s 34 agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.
Accordingly, the hearing was adjourned, and the matter proceeded under s 34 of the LEC Act. The parties confirmed the making of the s 34 agreement at the conciliation conference on 20 November 2025. This decision involved the Court upholding the appeal and granting development consent to the amended DA, subject to conditions, as agreed by the parties.
The parties advise that they agree that all contentions raised in the SOFAC are resolved by the amended DA and conditions of consent.
The signed s 34 agreement, Annexure A (Conditions of Consent) and the amended plans and documents were filed with the Court on 31 October 2025. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites provided to the Court on 27 November 2025, as amended on 12 January 2026.
In particular the amended DA provides amended architectural and landscape plans which include the following matters:
Amended stormwater management plans;
Retention of one tree in the front setback area; and
Recalculation of the floor space proposed in the development to re-define an undercroft area (now open) to ensure compliance with the Floor Space Ratio (FSR) for the site under the Shellharbour Local Environmental Plan 2013 (the LEP) for the site.
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.
The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.
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.
The DA was publicly notified from 16 September 2024 to 30 September to 2024. One submission was received during the notification period.
The parties advise that the submission made by, and on behalf of, the resident objector has been considered by the parties and is satisfactorily addressed in the amended DA and conditions of consent.
The Respondent advised that several attempts have been made to notify the resident objector of the proposal to resolve the matter by section 34 Agreement on the basis of the amended plans and materials, including:
by email from Council’s solicitor to the resident objector’s known email address on 4 November 2025;
by email from Council’s solicitor to the objector’s known email address on 10 November 2025;
by letter from Council’s solicitor, hand delivered by Council staff to the residence on behalf of which the objection was made on 10 November 2025; and
by telephone call from the Council’s planning officer for the development application to the real estate manager known to act for the resident objector on 11 November 2025.
No response has been received to any of the above communications.
The Respondent is satisfied that the amended plans and materials agreed to during the course of the proceedings do not need to be further notified or advertised.
The LEP applies to the site and to the proposed development. The site is zoned R3 Medium Density Residential (R3 zone) pursuant to cl 2.2 of the LEP; and
The proposed development is permissible with consent within the R3 Medium Density Residential zone;
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.
Clause 2.6 of the LEP provides that subdivision is permissible with consent. The parties advise that the amended DA seeks consent for subdivision of the site into 2 lots. The construction of a principal dwelling and a secondary dwelling on each newly created lot is proposed, with no further subdivision approved as part of the development. A condition of consent has been agreed to reflect this requirement.
Clause 2.7 of the LEP provides that demolition is permissible with consent. The amended DA seeks consent for the demolition of existing structures on the site.
The Lot Size Map referred to in cl 4.1(3) of the LEP provides that the minimum lot size in relation to the site is 450m2. The proposed development includes the subdivision of the site into two lots, each with an area of 527.0m2, and complies with the required minimum site area.
The site is subject to cl 4.3 of the LEP in relation to a maximum height of 9m as shown in the Height of Buildings (HoB) Map in the LEP. The parties advise that the proposed development as amended complies with the HoB development standard.
The site is subject to cl 4.4 of the LEP in relation to a maximum FSR of 0.7:1. The parties advise that the proposed development as amended complies with the FSR development standard with an FSR of 0.66:1.
Clause 5.4 of the LEP relates to controls for miscellaneous permissible uses. A secondary dwelling is proposed on each lot which is permissible in the R3 zone. Clause 5.4(9) of the LEP imposes a limitation on the total floor area of the secondary dwelling, and the parties agree the amended DA satisfies this clause.
Clause 5.21 of the LEP is concerned with flood planning. The parties advise that the site is within the flood planning area under the LEP, and that the amended DA is supported by the following:
Flood Risk Management Report, prepared by Stellen Civil Engineering dated 1 July 2024;
Letter from Daintry Associates to the Respondent dated 25 November 2024; and
Stormwater Plans prepared by Vanguard (Revision E) dated 5 September 2025.
The parties advise that they have considered the matters set out in cl 5.21(2) and (3) of the LEP and agree the proposed development incorporates appropriate design features to address the flood affection of the site in a manner that is compatible with the flood function and behaviour on the site. These include the following:
Elevation of the habitable floor level of the dwellings to meet the precautionary flood planning level;
Creation of an open sub-ground floor area which provides no obstruction to flood waters and increases the flood storage within the site;
All structures below the probable maximum flood level to be constructed from flood compatible building materials; and
Provision for shelter-in-place above the probable maximum flood level.
The parties submit that they are satisfied the requirements of cl 5.21 of the LEP are satisfied and that the Conditions of Consent have been agreed to ensure compliance with the flood planning measures proposed as part of the development, as amended, and that the proposed development is not expected to result in any significant flooding impacts downstream.
Clause 6.1 of the LEP relates to Acid Sulfate Soils. The parties advise that the site is located within a Class 3 Acid Sulfate Soils area identified in the LEP, and that:
The DA is supported by an Acid Sulfate Soils and Foundations Report, prepared by Southern Geotechnics NSW Consulting Geotechnical Engineers, dated 29 October 2024 (the Acid Sulfate Soils and Foundation Report);
The report concludes that there are no Acid Sulphate Soils above the water table at 2.5m in depth, and that the upper 2m of natural soils on the site have no potential for acid sulfate generation;
The proposal is to use screw piles which do not result in excavated material, and all drainage and services will be in the upper 1m zone with no need to excavate below 2.5m;
Therefore, there will be no Acid Sulphate Soils requiring treatment or removal from site. Conditions of Consent have been agreed between the parties to ensure compliance with the Acid Sulfate Soils and Foundations Report.
Clause 6.3 of the LEP relates to Stormwater management. The parties advise that the amended DA is supported by the following documents:
Flood Risk Management Report, prepared by Stellen Civil Engineering dated 1 July 2024;
Stormwater Plans prepared by Vanguard (Revision E) dated 5 September 2025; and
Landscape Plans prepared by TGS Landscape Architects dated 5 August 2025.
The parties advise that they have considered the matters set out in cl 6.4(3) of the LEP and are satisfied the stormwater and drainage works proposed as part of the amended DA satisfy the relevant requirements of this clause. Conditions of Consent have been agreed which make further provision for stormwater management prior to the commencement of works, during and post construction.
Pursuant to s 7.7 of the Biodiversity Conservation Act 2016 (NSW) (the BC Act), if a proposal is likely to significantly affect threatened species, the development application is to be accompanied by a biodiversity development assessment report (BDAR).
The parties advise that they have considered s 7.7 of the BC Act and are satisfied the amended DA does not need to be accompanied by a BDAR as the proposed development is not likely to affect threatened species as no native vegetation is proposed to be removed.
The parties submit that, notwithstanding the above conclusion in [35], a standard condition of consent has been included which addresses the risk of harm to any native fauna during construction, and mandates requirements in the event native fauna is discovered during the course of the works.
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.
The amended DA includes tree removal. The existing trees to be retained and removed are identified in the Arborist Report prepared by Arbor Express dated 4 September 2025 submitted in support of the amended DA.
The parties submit that the matters arising under Ch 2 of the Biodiversity SEPP do not apply to the proposed development, and as such, it is not a jurisdictional requirement for the Court to consider. This is because the Applicants have not applied to remove the trees under permit but rather seek development consent to remove the trees under the EPA Act.
The parties advise that Conditions of Consent have been agreed which make provision for protection of the existing trees to be retained on the site, including the appointment of a Project Arborist.
The site is identified as Coastal Environment Area and Coastal Use Area pursuant to Pt 2.2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (the Resilience SEPP).
The parties advise that:
The Respondent has considered the requirements under ss 2.10, 2.11, 2.12 and 2.13 of the Resilience SEPP and is satisfied the proposed development is not likely to have any adverse impacts or increase the risk of coastal hazards on the basis that the development is not expected to result in adverse effects on the integrity and resilience of the ecological environment, the coastal environmental values, natural processes, water quality, marine vegetation, habitats, headlands or rock platforms, public open spaces, Aboriginal cultural heritage, the use of the surf zone, or the foreshore; and
The proposal has been designed and sited to avoid potential impacts on the coastal environment, and the potential impact resulting from proximity to the coast is able to be managed, subject to conditions.
The parties agree that the amended DA satisfies the requirements under ss 2.10, 2.11, 2.12 and 2.13 of the Resilience SEPP.
Section 4.6 of 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.
The parties have advised that:
The Statement of Environmental Effects prepared by Andrew Martin Planning and lodged with the DA identifies that, the subject site is part of an established residential lot with existing single dwelling. Council records do not indicate that the site has been used for any purpose other than residential dwelling and associated land uses, nor do they indicate any land historic use that would contribute to the contamination of the site;
The land is not identified as being contaminated on Council mapping. There are no significant earthworks proposed, and the proposal does not comprise a change of use. No concerns are raised in regard to contamination as relates to the intended use of the land and the requirements of s 4.6 of the Resilience SEPP; and
For an abundance of caution, standard conditions of consent have been incorporated which make provision for unexpected contamination on the site.
The Court is satisfied for the purposes of s 4.6 of the Resilience SEPP that the site is suitable for the proposed development.
The parties advise that the State Environmental Planning Policy (Sustainable Buildings) 2022 (the Sustainable Buildings SEPP) applies to the DA.
BASIX certificates and Thermal Assessor certificates have been provided to the Respondent as part of the development application. The parties agree the development application, as amended, satisfies the requirements of the Sustainable Building SEPP.
The parties confirmed that updated BASIX certificates for proposed Lot 1 and Lot 2 were not required for the amended DA. The relevant BASIX certificates Numbers 1754200M (Lot 1), and 1754201M (Lot 2) were prepared by CK Design Pty Ltd dated 3 July 2025, submitted with the Class 1 Application and referenced in the s 34 agreement.
The site of the proposed development is located within 5m of an exposed overhead electricity power line, and the DA was referred by the Respondent to Endeavour Energy on 11 September 2024 for comment, pursuant to s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (the Transport SEPP).
On 11 September 2024, Endeavour Energy advised it had no objections to the development application, subject to conditions. The parties advise that these conditions have been incorporated into the agreed Conditions of Consent.
Having considered the advice of the parties provided above at [16]-[52], I am satisfied that:
the Applicant’s amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;
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
approval of the proposed development is in the public interest.
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.
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.
The Court notes:
That Shellharbour City 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 No. DA 0233/2024 made on 30 October 2025 to rely on the amended plans and documents specified below:
| Plan Name | Drawing No. | Rev/Ref No | Date | Prepared By | | Amended Architectural Plans | | Cover Page | A1-01 | F | 1 September 2025 | CK Design Pty. Ltd | | Survey Plan | A1-02 | - | 4 December 2023 | CEH Consulting Pty Ltd | | Lot 1 - BASIX Commitments | A1-03 | E | 7 July 2025 | CK Design Pty. Ltd | | Lot 2 - BASIX Commitments | A1-04 | E | 7 July 2025 | CK Design Pty. Ltd | | Demolition Plan | A1-05 | E | 7 July 2025 | CK Design Pty. Ltd | | Site Analysis | A1-06 | F | 1 September 2025 | CK Design Pty. Ltd | | Streetscape Elevation | A1-07 | D | 13 June 2025 | CK Design Pty. Ltd | | Subdivision Plan | A1-08 | F | 1 September 2025 | CK Design Pty. Ltd | | Site Plan | A1-09 | F | 1 September 2025 | CK Design Pty. Ltd | | Ground Floor Plan | A1-10 | F | 1 September 2025 | CK Design Pty. Ltd | | Level 1 Floor Plan | A1-11 | D | 13 June 2025 | CK Design Pty. Ltd | | Level 2 Floor Plan | A1-12 | D | 13 June 2025 | CK Design Pty. Ltd | | Roof Plan | A1-13 | F | 1 September 2025 | CK Design Pty. Ltd | | Elevations | A1-14 | F | 1 September 2025 | CK Design Pty. Ltd | | Sections | A1-15 | D | 13 June 2025 | CK Design Pty. Ltd | | 3D Perspective | A1-16 | F | 1 September 2025 | CK Design Pty. Ltd | | 3D Perspective | A1-17 | F | 1 September 2025 | CK Design Pty. Ltd | | Calculations | A1-18 | E | 7 July 2025 | CK Design Pty. Ltd | | Schedule of Finishes | A1-19 | F | 1 September 2025 | CK Design Pty. Ltd | | Envelope Shadow Diagrams | A1-20 | E | 7 July 2025 | CK Design Pty. Ltd | | Envelope Shadow Diagrams | A1-21 | E | 7 July 2025 | CK Design Pty. Ltd | | Envelope Shadow Diagrams | A1-22 | E | 7 July 2025 | CK Design Pty. Ltd | | Envelope Shadow Diagrams | A1-23 | E | 7 July 2025 | CK Design Pty. Ltd | | Shadow Diagrams | A1-24 | E | 7 July 2025 | CK Design Pty. Ltd | | Shadow Diagrams | A1-25 | E | 7 July 2025 | CK Design Pty. Ltd | | Shadow Diagrams | A1-26 | E | 7 July 2025 | CK Design Pty. Ltd | | Shadow Diagrams | A1-27 | E | 7 July 2025 | CK Design Pty. Ltd | | Privacy Diagrams | A1-28 | E | 7 July 2025 | CK Design Pty. Ltd | | Winter Sun Eye Views | A1-29 | E | 7 July 2025 | CK Design Pty. Ltd | | Winter Sun Eye Views | A1-30 | E | 7 July 2025 | CK Design Pty. Ltd | | Winter Sun Eye Views | A1-31 | E | 7 July 2025 | CK Design Pty. Ltd | | Winter Sun Eye Views | A1-32 | E | 7 July 2025 | CK Design Pty. Ltd | | Summer Sun Eye Views | A1-33 | E | 7 July 2025 | CK Design Pty. Ltd | | Summer Sun Eye Views | A1-34 | E | 7 July 2025 | CK Design Pty. Ltd | | Summer Sun Eye Views | A1-35 | E | 7 July 2025 | CK Design Pty. Ltd | | Summer Sun Eye Views | A1-36 | E | 7 July 2025 | CK Design Pty. Ltd | | Fence Plan | A1-37 | F | 1 September 2025 | CK Design Pty. Ltd | | Notification Plan | A1-40 | F | 1 September 2025 | CK Design Pty. Ltd | | Amended Engineering Plans | | Cover Page | SW01 | E | 5 September 2025 | Vanguard Consulting Engineers | | Specifications Sheet | SW02 | E | 5 September 2025 | Vanguard Consulting Engineers | | Stormwater Plans Ground Floor | SW10 | E | 5 September 2025 | Vanguard Consulting Engineers | | Stormwater Plans Level 1 | SW11 | E | 5 September 2025 | Vanguard Consulting Engineers | | Stormwater Plans Level 2 | SW12 | E | 5 September 2025 | Vanguard Consulting Engineers | | Stormwater Plans Roof | SW13 | E | 5 September 2025 | Vanguard Consulting Engineers | | Stormwater Details | SW20 | E | 5 September 2025 | Vanguard Consulting Engineers | | Erosion and Sediment Control Plan | SW30 | E | 5 September 2025 | Vanguard Consulting Engineers | | Erosion and Sediment Control Plan | SW31 | E | 5 September 2025 | Vanguard Consulting Engineers | | Landscape Plans | | Landscape Plan (Sheet 1) | DA1-1 | - | 5 August 2025 | TGS Landscape Architects | | Landscape Plan (Sheet 2) | DA1-2 | - | 5 August 2025 | TGS Landscape Architects | | Landscape Plan (Sheet 3) | DA1-3 | - | 5 August 2025 | TGS Landscape Architects | | Reports | | Arboricultural Impact Assessment | - | v4 | 4 September 2025 | Arbor Express |
The Court orders that:
The appeal is upheld.
Development consent is granted to Development Application No. DA 0233/2024 (as amended) for the demolition of existing structures, Torrens Title subdivision to create 2 residential lots, tree removal and construction of a dwelling house with attached secondary dwelling on each proposed lot, on Lot 6 Sec A in DP11044, known as 71 Reddall Parade, Lake Illawarra NSW, subject to the conditions of consent at Annexure A.
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Annexure A (1.21 MB, pdf)
RANJ Group Pty Ltd
Shellharbour City Council [2026] NSWLEC 1020