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[2025] NSWLEC 1517
General information, not legal advice.
Land and Environment Court (NSW)
2025-07-22
Porter C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Skyrock Destiny Pty Ltd v Wingecarribee Shire Council [2025] NSWLEC 1517
Hearing dates: Conciliation conference on 3 July 2025
Date of orders: 22 July 2025
Decision date: 22 July 2025
Jurisdiction: Class 1
Before: Porter C
Decision: The Court orders:
(1) The appeal is upheld.
(2) Development Application 23/1481 for demolition of some existing structures, partial removal of hedges, earthworks, and the construction of two x two storey townhouses resulting in a multi dwelling housing development with associated landscaping and strata subdivision at 138 Mittagong Road, Bowral, is determined by granting development consent, subject to the conditions in Annexure A.
Catchwords: DEVELOPMENT APPEAL – multi dwellings – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
State Environment Planning Policy (Biodiversity and Conservation) 2021, Ch 6
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2021
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.98, 2.100, 2.119
Wingecarribee Local Environmental Plan 2010, cll 2.3, 2.7, 4.1, 4.3, 4.4, 5.21
Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245
Category: Principal judgment
Parties: Skyrock Destiny Pty Ltd (Applicant)
Wingecarribee Shire Council (Respondent)
Representation: Counsel:
R O’Gorman-Hughes (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Hartley Solicitors (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2024/474284
Publication restriction: Nil
COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of DA-23/1481 for demolition of some existing structures, partial removal of hedges, earthworks, and the construction of two x two storey townhouses resulting in a multi dwelling housing development with associated landscaping and strata subdivision (DA) at 138 Mittagong Road, Bowral, legally known as Lot 1 DP 1296171 (site).
The proceedings commenced as a hearing and started on site on 3 July 2025. Following joint reporting of the experts and hearing the concerns of several nearby residents, the parties advised that the issues in dispute had been resolved by amendments to the proposal and requested a s 34 conciliation conference. The request was granted and the Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties that same day. I presided over the conciliation conference.
The Court notes that the Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) to the Applicant amending DA-23/1481 (amended DA) in accordance with the documents listed below:
Architectural plans, prepared by ELK Designs.
| Drawing No. | Drawing Title | Issue | Date | | DA000 | COVER PAGE | C | 22.09.2023 | | DA010 | SITE ANALYSIS PLAN | B | 21.09.2023 | | DA011 | EXISTING SITE PLAN | B | 01.09.2023 | | DA020 | DEMOLITION PLAN | P5 | 29.05.2025 | | DA030 | SITE PLAN | P26 | 26.06.2025 | | DA035 | SITE COVERAGE PLAN | P16 | 26.06.2025 | | DA100 | GROUND FLOOR | P19 | 29.05.2025 | | DA110 | FIRST FLOOR | P18 | 29.05.2025 | | DA111 | FIRST FLOOR | P7 | 29.05.2025 | | DA150 | ROOF PLAN | P9 | 29.05.2025 | | DA300 | ELEVATIONS | P15 | 29.05.2025 | | DA301 | ELEVATIONS | P11 | 29.05.2025 | | DA350 | EXTERNAL FINISHES | P6 | 29.05.2025 | | DA400 | SECTIONS | P10 | 17.06.2025 | | DA401 | SECTIONS | P1 | 18.06.2025 | | DA900 | EXTERNAL SHADOW DIAGRAMS | P15 | 17.06.2025 | | DA901 | EXTERNAL SHADOW DIAGRAMS | P15 | 17.06.2025 | | DA902 | VIEWS FROM THE SUN | P11 | 17.06.2025 | | DA903 | EXISTING HSADOW DIAGRAMS | P5 | 17.06.2025 | | DA904 | EXISTING SHADOW DIAGRAMS | P5 | 17.06.2025 | | DA905 | SHADOW DIAGRAM (1M ELEVATED PLANE) | P1 | 18.06.2025 | | DA906 | SHADOW DIAGRAM (1M ELEVATED PLANE) | P1 | 18.06.2025 | | DA960 | SEDIMENT CONTROL | B | 21.09.2023 |
| Drawing No. | Drawing Title | Revision | Date | | 22022-101 | COVER AND INDEX | 6 | 25.06.2025 | | 22022-102 | GENERAL ARRANGEMENT PLAN | 6 | 25.06.2025 | | 22022-103 | EXISTING AND SITE PREPARATION PLAN | 6 | 25.06.2025 | | 22022-104 | SOIL AND WATER MANAGEMENT LAYOUT PLAN | 6 | 25.06.2025 | | 22022-105 | SOIL AND WATER MANAGEMENT DETAILS | 6 | 25.06.2025 | | 22022-106 | BULK EARTHWORKS LAYOUT PLAN | 6 | 25.06.2025 | | 22022-107 | ACCESS DRIVEWAY LONGITUDINAL AND TYPICAL SECTIONS | 6 | 25.06.2025 | | 22022-108 | STORMWATER DRAINAGE LAYOUT PLAN | 6 | 25.06.2025 | | 22022-109 | STORMWATER QUANITY MODELLING PLAN | 6 | 25.06.2025 | | 22022-110 | STORMWATER QUALITY MODELLING PLAN 1 OF 2 | 6 | 25.06.2025 | | 22022-111 | STORMWATER QUALITY MODELLING PLAN 2 OF 2 | 6 | 25.06.2025 | | 22022-112 | SEWER AND WATER LAYOUT PLAN | 6 | 25.06.2025 |
| Sheet No. | Drawing Title | Date | | 1 | SITE ANALYSIS PLAN | 26.06.2025 | | 2 | LANDSCAPE PLAN | 26.06.2025 | | 3 | SPECIFICATION PLAN | 26.06.2025 |
| Sheet No. | Drawing Title | Ref****erence | | 1 | LOCATION PLAN | B2257 | | 2 | FLOOR PLAN – GROUND LEVEL | B2257 | | 3 | FLOOR PLAN – LEVEL ONE | B2257 |
BASIX Certificate Number 1344203M_02 prepared by Evergreen Energy Consultants Pty Ltd dated 2 July 2025.
The amended DA included the following key amendments:
Retention of the rear canopy tree in the south east corner of the site.
Redesign of the dwellings to accommodate the tree.
Revised landscaping.
Increased rear setback from 2.747m to 11.607m.
Widened driveway and cross over for two way entering/exiting.
Raised floor levels to meet the minimum flood levels.
As part of the conciliation conference process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable. This decision involved the Court upholding the appeal for the amended DA and granting development consent subject to conditions of consent under s 4.16 of the EPA Act.
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. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 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 set out below.
I am satisfied that owner’s consent accompanied the DA as the Applicant is the owner. The Respondent notified the DA from 30 June 2023 to 31 July 2023 and again from 18 June 2025 for 14 days. Thirteen submissions were received.
The parties clarified that no tree removal was sought for trees on adjoining properties. The demolition plan unhelpfully shows both demolition works and the structural root zones of the retained trees in red. The parties confirmed that the only trees to be removed are those on site and enforced through conditions of consent that specifically name the trees being removed or partially removed (condition 8A – Tree Removal). The trees being removed are consistent with the Arboricultural Impact Assessment prepared by Arboriculture Consultancy dated 28 May 2025, which only identifies trees on the subject site and protection zones of trees on site and on the adjoining sites.
At the commencement of the proceedings, the Court and the parties heard oral concerns from a number of objectors.
As the parties have entered into an agreement, the Court’s role is limited to ensuring that there is jurisdiction / power to grant consent, and not the merits of the issues raised (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [217]).
In reaching agreement, the parties have advised the Court that they considered the concerns raised in the written and oral objections and where possible, these have been addressed through amendments, further information or conditions of consent.
Sections 2.98 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) - development near rail corridors and s 2.100 of the SEPP TI - impact of rail noise or vibration apply to the proposed development. On the basis of the Road and Rail Noise Impact report prepared by Soundscape Acoustic Consultants dated 8 October 2024 (Road and Rail Impacts Report), and inclusion of its recommendations in the conditions of consent, I accept the parties’ agreement that the provisions have been satisfied. Written notice was given to the rail authority, who did not object to the proposal.
Section 2.119 of the SEPP TI - development with frontage to a classified road applies as the site has a frontage to Mittagong Road (a classified road). On the basis of the civil engineering plans, Traffic and Parking Impact Assessment prepared by McLaren Traffic Engineering and Road Safety Consultants dated 28 September 2022, Road and Rail Impacts Report and concurrence from Transport for NSW, I accept the parties’ agreement that the provisions have been satisfied. I accept that access from another road is not possible and that the safety, efficiency and on-going operation of Mittagong Road will not be impacted by the proposal.
The subject site is zoned R3 Medium Density Residential, where the proposed development for multi dwelling housing is permissible with consent. Pursuant to cl 2.3 of the Wingecarribee Local Environmental Plan 2010, I have had regard to the objectives of the zone. Clause 2.7 demolition permits demolition with consent, as sought by the amended DA.
Clause 4.1 minimum lot size does not apply as the site seeks consent for strata subdivision.
There are no stipulated maximums for height and floor space ratio under cll 4.3 height and 4.4 floor space ratio.
The previous version of cl 5.21 flood planning applies to the site (due to the lodgement date of the DA). On the basis of the Flood Report prepared by Pavel Kazorovski dated 27 May 2025 (Flood Report), I accept the parties’ agreement the proposed development is compatible with and does not adversely affect flood behaviour in a manner that would adversely impact other development or properties. The Flood Report also details that evacuation routes are not required. I accept that all provisions of cl 5.21 are met.
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.
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.
I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.
The Court orders:
The appeal is upheld.
Development Application 23/1481 for demolition of some existing structures, partial removal of hedges, earthworks, and the construction of two x two storey townhouses resulting in a multi dwelling housing development with associated landscaping and strata subdivision at 138 Mittagong Road, Bowral, is determined by granting development consent, subject to the conditions in Annexure A.
Annexure A (892 KB, pdf)
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Skyrock Destiny Pty Ltd
Wingecarribee Shire Council [2025] NSWLEC 1517
(2018) 233 LGERA 170