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[2026] NSWLEC 1070
General information, not legal advice.
Land and Environment Court (NSW)
2026-02-24
Targett 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: Sydney Building Group Pty Ltd v Sutherland Shire Council [2026] NSWLEC 1070
Hearing dates: Conciliation Conference 10 February 2026
Date of orders: 24 February 2026
Decision date: 24 February 2026
Jurisdiction: Class 1
Before: Targett C
Decision: The Court orders that:
(1) The appeal is upheld.
(2) The Applicant is to pay the Respondent’s costs thrown away, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed amount of $10,000.
(3) Development application number DA25/0361, as amended, for demolition of existing structures, removal of trees and construction of a multi-dwelling house development and strata title subdivision at land identified as Lot 101 and 102 in Deposited Plan 603381, also known as 29 and 29A North West Arm Road, Gymea 2227, is determined by the grant of development consent subject to the conditions of consent contained at Annexure “A”.
Catchwords: APPEAL — development application — multi dwelling housing — conciliation conference — agreement between the parties — orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7, 8.10, 8.11, 8.15 Land and Environment Court Act 1979 (NSW), ss 17, 34 Environmental Planning and Assessment Regulation 2021 (NSW), s 38 Sutherland Local Environmental Plan 2015, cll 4.1E, 4.3, 4.4, 6.1, 6.2, 6.4, 6.14, 6.16, 6.17 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022
Texts Cited: Sutherland Development Control Plan 2015
Category: Principal judgment
Parties: Sydney Building Group Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)
Representation: Counsel:
D Loether (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)
Solicitors:
Bartier Perry (Applicant)
Sutherland Shire Council (Respondent)
File Number(s): 2025/336369
Publication restriction: Nil
This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s development application No DA25/0361 (Development Application). The Development Application sought consent for the demolition of all existing structures, tree removal and construction of a multi-dwelling development consisting of six multi-dwelling units with strata subdivision at Lots 101 and 102 in Deposited Plan 603381, also known as 29 and 29A North West Arm Road, Gymea NSW (Subject Land).
The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).
The Development Application was lodged with the respondent on 18 July 2025.
The Development Application was notified until 4 August 2025, with one submission received objecting to the proposal.
On 2 September 2025, the proceedings were commenced in relation to the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.
The Court arranged a conciliation conference under s 34 of LEC Act between the parties, which was held on 10 February 2026. I presided over the conciliation conference.
During the conciliation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. Amended plans and further documentation (Amended Development Application) were provided to the Court on 10 February 2026 (cited at [34]) in conjunction with a signed s 34 agreement and agreed jurisdictional statement.
The amendments primarily include:
amending the profile of the driveway;
retaining Trees 8 and 14;
reducing visitor car parking spaces from two to one;
amending the private open space arrangements;
amending specified windows to provide privacy treatments; and
increased landscaping.
The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent.
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.
(a) it has considered whether the land is contaminated; (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out; and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.
• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To protect and enhance existing vegetation and other natural features and encourage appropriate bushland restoration particularly along ridgelines and in areas of high visual significance.
• To allow the subdivision of land only if the size of the resulting lots retains natural features and allows a sufficient area for development.
• To ensure the single dwelling character, landscaped character, neighbourhood character and streetscapes of the zone are maintained over time and not diminished by the cumulative impact of multi dwelling housing or seniors housing.
The parties agree that the Amended Development Application is consistent with the objectives of the R2 zone.
Pursuant to cl 4.1E of the LEP relating to minimum lot sizes for dual occupancies, manor houses and multi dwelling housing, development consent must not be granted for multi dwelling housing unless the site is relevantly 1,200m2 or more. The parties agree that the Amended Development Application complies with this requirement.
Pursuant to cl 4.3 of the LEP relating to height of buildings, a maximum height standard of 9m applies to the Subject Land. The parties agree that the Amended Development Application complies with this standard.
Pursuant to cl 4.4 of the LEP relating to floor space ratio, a maximum floor space ratio (FSR) development standard of 0.55:1 applies to the Subject Land. The parties agree that the Amended Development Application complies with this standard.
Pursuant to cl 6.1 of the LEP relating to acid sulfate soils, the parties agree, and I accept that, the proposed works are not below 5m AHD or involve works which will lower the water table below 1m AHD, and therefore the requirements of cl 6.1(3) are not enlivened.
Pursuant to cl 6.2(3) of the LEP relating to earthworks, the consent authority must consider specified matters prior to granting consent. The parties agree, and I accept, that the matters set out in cl 6.2(3) have been adequately considered having regard to the Geotechnical Investigation Report prepared by ESWNMAN dated 17 February 2025, pp 15-16 of the Statement of Environmental Effects prepared by Avenue Town Planning dated 7 May 2025 (SEE) and Agreed Conditions.
Pursuant to cl 6.4 of the LEP relating to stormwater management, development consent must not be granted unless the consent authority is satisfied of the matters set out in cl 6.4(3). The parties agree, and I accept that, the Amended Development Application satisfies the matters in cl 6.4(3) having regard to the Stormwater Plans prepared by HYVE Designs dated 1 May 2025.
Pursuant to cl 6.14(3) of the LEP relating to landscaped area development standard, the parties agree and I accept that, the Amended Development Application complies with the requirement to provide a minimum landscaped area of 35% of the Subject Land’s area.
Pursuant to cll 6.16 and 6.17 of the LEP relating to Urban design – general and urban design – residential accommodation, respectively, the consent authority must consider the matters set out int cll 6.16(1) and 6.17 in deciding whether to grant development consent. The parties agree, and I accept, that the Amended Development Application is capable of being approved having regard to these provisions.
In relation to s 4.15(1)(b) of the EPA Act, the parties agree that the proposed development will not have a significant impact on the natural or built environment (see pp 25-28 of the SEE).
In relation to s 4.15(1)(c), the parties agree that the Subject Land is suitable for the proposed development (see p 28 of the SEE).
In respect of s 4.15(1)(d), the Development Application was notified until 4 August 2025. One written submission was received in response to the notification of the proposal, raising issues regarding privacy and overlooking and increased road safety risks and parking pressure.
The Court also heard from three objectors at the site view associated with the conciliation conference primarily raising issues regarding sightlines and road safety concerns. I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.
In relation to s 4.15(1)(e), the parties agree that the proposed development is in the public interest (see p 28 of the SEE).
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.
The Court notes that the respondent, as the relevant consent authority, has approved pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), the applicant amending Development Application DA25/0361 in accordance with the following amended plans and documents:
| TAB | DOCUMENT | | 1. | Architectural Plans prepared by Couvaras Architects: | | Drawing No. | Drawing Title | Revision No. | Date | | - | Cover Page | - | - | | 100 | Site Plan | F | 22/12/2025 | | 150 | Ground Floor Plan | F | 22/12/2025 | | 151 | Level 1 Floor Plan | F | 22/12/2025 | | 160 | Area Plan | F | 22/12/2025 | | 300 | Elevations | F | 22/12/2025 | | 301 | Elevations | F | 22/12/2025 | | 310 | Sections | F | 22/12/2025 | | 311 | Sections | F | 22/12/2025 | | 312 | Sections | F | 22/12/2025 | | 400 | External Finishes Plan | F | 22/12/2025 | | 401 | Sewer Location Plan | F | 22/12/2025 | | 2. | Landscape plans prepared by Site Design Studios: | | | Drawing No. Drawing Title Revision Date L00 Cover Sheet C 22/12/2025 L-01 Detailed plan C 22/12/2025 L-01.1 Planting plan C 22/12/2025 L-02 Planting details C 22/12/2025 L-04 Existing tree C 22/12/2025 L-05 Notes C 22/12/2025 L-06 Specification C 22/12/2025 | | Drawing No. | Drawing Title | Revision | Date | | L00 | Cover Sheet | C | 22/12/2025 | | L-01 | Detailed plan | C | 22/12/2025 | | L-01.1 | Planting plan | C | 22/12/2025 | | L-02 | Planting details | C | 22/12/2025 | | L-04 | Existing tree | C | 22/12/2025 | | L-05 | Notes | C | 22/12/2025 | | L-06 | Specification | C | 22/12/2025 | | 3. | Letter prepared by McLaren Traffic dated 5 January 2026. | | 4. | Letter prepared by Beveridge Williams dated 6 January 2026. | | 5. | Schedule of amendments prepared by Couvaras Architects dated 13 January 2026. | | 6. | BASIX Certificate Number 17994121M_02 prepared by Evergreen Energy Consultants Pty Ltd dated 9 February 2026. | | 7. | NatHERS stamped plans Certificate No. 0011894520. |
The Court orders that:
The appeal is upheld.
The Applicant is to pay the Respondent’s costs thrown away, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed amount of $10,000.
Development application number DA25/0361, as amended, for demolition of existing structures, removal of trees and construction of a multi-dwelling house development and strata title subdivision at land identified as Lot 101 and 102 in Deposited Plan 603381, also known as 29 and 29A North West Arm Road, Gymea 2227, is determined by the grant of development consent subject to the conditions of consent contained at Annexure “A”.
Annexure A (546 KB, pdf)
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Sydney Building Group Pty Ltd
Sutherland Shire Council [2026] NSWLEC 1070