Social Justice Advocates of the Sapphire Coast Inc v Bega Valley Shire Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: NSW Government’s Planning Guidelines: Managing Land Contamination 1998

Category: Principal judgment

Parties: Social Justice Advocates of the Sapphire Coast Incorporated (Applicant)
Bega Valley Shire Council (Respondent)

Representation: Counsel:
M Harker (Respondent)
J Farrell (Applicant)
Solicitors:
BAL Lawyers (Respondent)
Pickup Legal (Applicant)

File Number(s): 2025/109016

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of development application DA10-2024-183-1. As amended, the development application seeks consent for the use of existing structures on the site as transitional group homes. No vegetation is proposed to be removed as part of the development application. The development is proposed at 125 Gipps Street, Bega (Lot 1 in DP 121210).

2. A conciliation conference was held between the parties on 8 August 2025, pursuant to s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference was terminated and the matter listed for hearing.

3. On the first day of the hearing, following an adjournment of the hearing, the parties advised the Court that they had reached agreement. Accordingly, the Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties which was held on 9 December 2025. I presided over the further conciliation conference. The decision agreed upon is for the grant of development consent to the development application, as amended, subject to the conditions of consent pursuant to s 4.16(1) of the EPA Act. This agreement meets the first condition to the exercise of power and obligation of a commissioner to dispose of the proceedings in accordance with the decision of the parties (this being the test applied by s 34(3) of the LEC Act): see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 (McMilan) at [51].

4. As the presiding Commissioner, I am satisfied that the second condition is met, that the decision is one that the Court can make in the proper exercise of its functions see McMillan at [51]. I form this state of satisfaction on the basis that:

5. The development application is lodged with the consent of the registered proprietor of the land as required by s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

6. The development application was notified by the Respondent for a period of fourteen days commencing on 27 September 2024. Two submissions were received by the Respondent in response to the notification. One submission expressed support for the development application, and one submission raised concerns in relation to noise management. At the commencement of the proceedings the Court was also addressed by several members of the public who expressed support for the development. With the assistance of the amended development application, documents filed in the proceedings and the conditions of consent annexed, I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or by the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act. In particular I note that condition three requires an updated Plan of Management to be prepared which, in part, will provide a procedure for the making, recording and responding to any complaints received.

7. Chapter 4 ‘Remediation of Land’ of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies to the land. Section 4.6 of SEPP RH requires a consent authority to consider the contamination of land when determining a development application. The development application proposes no work but rather seeks consent for the use of the existing structures on the land. The portion of the site relevant to the development application was previously utilised as tennis courts. The parties agree, and I accept, that there is no evidence indicating the site may be contaminated, nor is there evidence of a use of the site falling within Table 1 of the NSW Government’s Planning Guidelines: Managing Land Contamination 1998. This finding is supported by the Statement of Environmental Effects which details a chronology of the previous uses of the site. I accept I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under the application.

8. Pursuant to Bega Valley Local Environmental Plan 2013 (LEP 2013) the site is zoned MU1 Mixed Use Development. The use of the structures on the site for the purpose of transitional group homes is permitted with consent as an innominate permissible use in the zone. A transitional group home is a use defined in LEP 2013.

9. In determining the development application, I have had regard to the following objectives of the MU1 Mixed Use Development zone.

10. To encourage a diversity of business, retail, office and light industrial land uses that generate employment opportunities.

11. To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

12. To minimise conflict between land uses within this zone and land uses within adjoining zones.

13. To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

14. To enable residential development that contributes to a vibrant and active centre and is consistent with the Council’s strategic planning for residential development in the area.

15. As required by to cl 5.10(4) Heritage conservation of LEP 2013, I have considered the impact of the development application on the significance of the item. I am satisfied that it is acceptable. The site is listed as a local heritage item ‘Bega Uniting Church’ in LEP 2013. The inventory sheet details the heritage significance as being centred on the Church building, the Manse and the gardens fronting Gibbs Street. During the assessment of the development application the Respondent sought advice from a heritage expert, Mr Kabaila. Mr Kabaila concluded that any impact on heritage significance of the item arising from the proposed development could be satisfactorily mitigated by the installation of hedging on the northern boundary of the site and the painting of the structures in a recessive colour. Both of these mitigation measures are required to be implemented through the conditions in Annexure A. I accept the agreed submission of the parties that the use of the structures as transitional group homes will not detrimentally affect the heritage significance of the item as the use fronts the secondary street address of the church, and the annexed conditions require the planting of additional screening and landscaping.

16. The remaining provisions of LEP 2013 are not applicable to the proposed development and/or the site of the application given the limited scope of the development for which consent is sought.

17. State Environmental Planning Policy (Housing) 2021 does not apply to the development on the basis of the definition of group home (transitional) in LEP 2013.

18. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2024 does not apply as the development application is only for use and proposes no works.

19. Bega Development Control Plan 2013 (DCP 2013) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2013. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

20. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to, “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s34(3)(b)).

21. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdiction impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Notes

7. Bega Valley Shire Council as the relevant consent authority has agreed, under s 38(1) of the EPA Regulation, to the Applicant amending the development application number DA10-2024-183-1 in accordance with the plans and documents listed below:

8. The addendum to the Statement of Environmental Effects filed in Court on 9 December 2025.

9. Site Plan prepared by TA Project Services dated 27 November 2025.

10. Survey Plan prepared by TA Project Services, Sheet 1 dated 9 July 2025, Sheet 2 dated 25 August 2025, and Sheet 3 dated 25 June 2025.

11. The preceding documents were filed in Court on 9 December 2025.

Orders

9. The Court orders that:

10. The appeal is upheld.

11. Development application DA10-2024-183-1 for the use of three existing structures as transitional group homes on Lot 1 of DP 121210 located at 125 Gipps Street Bega is determined by the grant of consent subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

Annexure A (606 KB, pdf)

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