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[2026] NSWLEC 1069
General information, not legal advice.
Land and Environment Court (NSW)
2026-02-17
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: Weiya Development Pty Limited v Campbelltown City Council [2026] NSWLEC 1069
Hearing dates: Conciliation conference held on 2 December 2025
Date of orders: 17 February 2026
Decision date: 17 February 2026
Jurisdiction: Class 1
Before: Kullen AC
Decision: The Court orders:
(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $9,000 within 21 days of these orders.
(2) The appeal is upheld.
(3) Development Application No 4001/2024/DA-SW, as amended, for the demolition of existing structures, tree removal, road works and civil works to create 40 Torrens title lots on the land at 36 and 46 Fitzpatrick Street, Menangle Park, NSW, 2563, legally known as Lot B DP 364350, Lot 1 DP 389348, Lot 55 DP 10718 and Lot 56 DP 1102480 and associated stormwater drainage works, road works and earthworks on the adjoining land legally described as Lot A DP364350, Lot 57 DP 10718 and Lot 41 DP 1285744, is determined by the grant of development consent subject to the conditions at Annexure A.
Catchwords: DEVELOPMENT APPEAL — conciliation conference — cl 4.6 variation — agreement between the parties — orders
Legislation Cited: Biodiversity Conservation Act 2016 (NSW), ss 7.2, 7.7, Sch 2 Pt 1 Coal Mine Subsidence Compensation Act 2017 (NSW), s 22 Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17, 4.46, 7.28, 8.7, 8.15, Sch 1, Div 2, cl 7 Land and Environment Court Act 1979 (NSW), s 34 Rural Fires Act 1997 (NSW), s 100B Biodiversity Conservation Regulation 2017 (NSW), ss 6.1, 7.1, 7.3 Campbelltown Local Environmental Plan 2015, cll 2.3, 2.6, 2.7, 4.1, 4.1AA, 4.1J, 4.6, 6.2, 6.3, 7.1, 7.4, 7.10, 7.20, Pt 6 Environmental Planning and Assessment Regulation 2021 (NSW), ss 23, 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4, ss 4.8, 4.17, Ch 6, Div 2, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9, ss 6.10-6.23 State Environmental Planning Policy (Koala Habitat Protection) 2019 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Texts Cited: Campbelltown (Sustainable City) Development Control Plan 2015
Campbelltown Community Participation Plan 2019
Campbelltown Comprehensive Koala Plan of Management (2020)
Category: Principal judgment
Parties: Weiya Development Pty Limited (Applicant)
Campbelltown City Council (Respondent)
Representation: Counsel:
T Poisel (Applicant)
A Foley (Solicitor) (Respondent)
Solicitors:
Low Doherty and Stratford Lawyers (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2025/87491
Publication restriction: Nil
The DA as amended by the Applicant on 21 October 2025 by leave of the Court (the amended DA) (refer to [10] below) seeks consent for the demolition of existing structures, tree removal, road works and civil works and subdivision to create 39 Torrens title lots and 5 community title lots (including 1 association lot) in two stages on the land at 36 and 46 Fitzpatrick Street, Menangle Park, NSW, 2563, legally known as Lot B DP 364350, Lot 1 DP 389348, and Lot 55 DP 10718 and Lot 56 DP 1102480 (the site).
Specifically, the amended DA seeks consent for the following proposed development:
The demolition of existing structures and removal of at least 27 trees;
Construction and dedication of roads including:
(a) Road 1 – full width road, road reserve is 14.8 metres (m) wide and 7.6m of pavement will be constructed; (b) Road 2 – half width road – road reserve is 17.4m wide and 4.8m of pavement will be constructed within the site (depending upon the timing of adjoining development); (c) Road 3 – half width road – road reserve is 14.8m wide and 3.8m of pavement will be constructed within the site (depending upon the timing of adjoining development); (d) Fitzpatrick Street – half road pavement of existing road will be constructed; and (e) Cummins Road – half road pavement of existing road will be constructed;
(a) Stage 1: 5139 Torrens lots ranging in area from 375.1m2 to 700.2m2; (b) Stage 2: 5 community title lots comprising four residential lots (ranging in area from 485.1m2 to 768.8m2) and one association lot (proposed Lot 1 at 3,281.6m2). Proposed Lot 1 will contain the majority of the Elderslie Banksia Scrub forest, a critically endangered ecological community listed in Pt 1 of Sch 2 (“EBS CEEC”) of the Biodiversity Conservation Act 2016 (NSW) (the BC Act), that is present on the site. Two further trees associated with the community will be located on proposed Lot 5;
Bulk earthworks; and
Landscaping including planting of ground covers and street trees.
The proposed demolition, construction and dedication of roads, and civil works will take place as part of Stage 1 of the development.
The proposed development also involves the provision of a temporary sedimentation basin over proposed Lots 3 and 4, which is proposed to be decommissioned upon the proposed regional trunk drainage system becoming operational.
The proposed development involves works over adjacent properties to the west, south and north (known as Lot A DP364350, Lot 41 DP 1285744 and Lot 57 DP 10718) including stormwater works, road works and earthworks. Those works allow for the proponent to carry out the roadworks and associated servicing on the adjoining land to provide full width roads as opposed to half width roads in the event that the subject development proceeds before the development of adjoining properties.
The DA was lodged with Campbelltown City Council (the Respondent) on 1 November 2024.
On 5 March 2025, the Applicant filed an appeal in Class 1 of the Court’s jurisdiction, under s 8.7 of the EPA Act against the (then) deemed refusal of the DA by the Respondent. The DA was subsequently refused by the Respondent on 26 March 2025.
On 23 April 2025, the Respondent filed a Statement of Facts and Contentions (SOFAC) with the Court, based on the original DA. On 4 July 2025, the Applicant filed a Statement of Facts and Contentions in Reply with the Court.
On 21 October 2025, the Applicant was granted leave by the Court to amend the DA to incorporate the amended plans and documents set out in Annexure A to the Affidavit of Patrick Anthony Doherty affirmed on 14 October 2025.
On 3 November 2025, the Respondent filed an amended SOFAC which addressed the amended DA.
On 24 July 2025, the Court arranged a s 34 conciliation conference on site pursuant to s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act). The s 34 conciliation conference was adjourned to enable time for the parties to address the contentions relating to the amended DA raised by the Respondent.
The parties were subsequently not able to reach an agreement, and the s 34 conciliation conference was terminated by the Court on 8 August 2025. The matter was adjourned for a hearing on 2 and 3 December 2025.
The on-site view on 2 December 2025 was vacated at the request of the parties, who advised the Court that the submitter did not wish to attend an on-site view or make a verbal submission. The parties reached a s 34 agreement on the proposed development which was filed with the Court on 1 December 2025. An updated s 34 agreement was filed with the Court on 2 December 2025.
The matter was adjourned to a s 34 conciliation conference which I conducted, commencing in the Court on 2 December 2025.
At the s 34 conciliation conference on 2 December 2025, the parties advised that they had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, based on the amended plans (in the further amended DA), as filed with the Court on 2 December 2025 along with a signed s 34 agreement with Annexure A. This decision involved the Court upholding the appeal and granting development consent to the further amended DA subject to conditions.
The s 34 agreement is based on the amended plans in the further amended DA which in essence deletes the previously proposed Stage 2 of the subdivision and proposes the creation of a total of 40 Torrens title lots in a single stage.
The final signed s 34 agreement with Annexure A and the further amended plans as agreed between the parties and filed with the Court on 2 December 2025, are supported by an agreed statement of jurisdictional prerequisites provided by the parties.
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 parties advise that the DA was notified and exhibited by the Respondent in accordance with the Campbelltown Community Participation Plan 2019 between 7 November 2024 and 5 December 2024, with one submission being received.
The parties submit that the matters raised in the submission have been considered by the Respondent and suitable conditions of consent are to be imposed. The parties advise that the author of the submission was also notified of the making of the s 34 agreement.
| Street Address | Legal Description | Scope of Development | | 36 Fitzpatrick Street, Menangle Park | Lot B DP 364350 | Subdivision of land, tree removal, road works and civil works | | 46 Fitzpatrick Street, Menangle Park | Lot 1 DP 389348, Lot 55 DP 10718 and Lot 56 DP 1102480 | As above | | 26 Fitzpatrick Street, Menangle Park | Lot A DP364350 | Tree removal and half width construction of Road 3 and associated civil works | | 121 Cummins Road, Menangle Park | Lot 57 DP 10718 | Tree removal and half width construction of Road 2 and associated civil works | | N/A | Lot 41 DP 1285744 | Construction of proposed stormwater head wall and tail out and associated works |
The parties advise that the DA has been accompanied by the consent of the owners of the relevant land as required by s 23(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), noting:
The Applicant is the owner of 36 and 46 Fitzpatrick Street, Menangle Park;
A letter of consent from Dahua Group Sydney Project 2 Pty Ltd dated 17 September 2024 has been provided in respect of the works proposed at Lot 41 DP 1285744; and
A letter of consent from Menangle Park 1 Pty Ltd dated 1 October 2024 has been provided in respect of the works proposed at Lot A DP364350 and Lot 57 DP 10718; and
The land at legally described as Lot A DP364350 and Lot 57 DP 10718 is subject to other development consents and the Applicant has negotiated arrangements with Menangle Park 1 Pty Ltd such that whichever development proceeds first will carry out the construction of proposed roads 2 and 3 in the proposed development. Notwithstanding these arrangements, consent is sought to carry out those works as part of the further amended DA in case the subject development proceeds first.
The proposed development is integrated development under s 4.46 of the EPA Act as a bush fire safety authority is required pursuant to s 100B of the Rural Fires Act 1997 (NSW) and an approval is required under s 22 of the Coal Mine Subsidence Compensation Act 2017 (NSW).
The parties advise that:
The NSW Rural Fire Service issued general terms of approval and a bush fire safety authority subject to conditions on 19 December 2024, and the Applicant obtained general terms of approval from Subsidence Advisory NSW on 10 May 2024 (prior to the lodgement of the DA); and
The conditions of both approvals are required to be complied with by the agreed conditions of consent.
The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.
The parties advise that a condition requiring the payment of the applicable housing and productivity contribution has been imposed as required by s 7.28 of the EPA Act.
The Applicant was granted leave by the Court to rely upon an updated version of the Biodiversity Development Assessment Report (BDAR) on 21 October 2025 (the DA was similarly accompanied by an earlier version of the BDAR). The BDAR is required under s 7.7(2) of the BC Act as the development is likely to significantly affect threatened species within the meaning of s 7.2 of the BC Act as the development would exceed the biodiversity offsets scheme threshold prescribed under s 7.1 of the Biodiversity Conservation Regulation 2017 (NSW) (BC Regulation).
The parties advise that specifically, the previously proposed development exceeded the biodiversity offsets scheme threshold as it involved the clearing of native vegetation, or other actions prescribed by s 6.1 of the BC Regulation, on land included on the Biodiversity Values Map (BV Map) referred to in s 7.3 of the BC Regulation.
The parties agree that the part of the site mapped under the BV Map is contained within proposed Lot 140 and comprises a patch of vegetation comprising Elderslie Banksia Scrub forest, a critically endangered ecological community listed in EBS CEEC. Figure 9 of the BDAR identified a small impact area (0.003ha) along the outer canopy edge of the retained vegetation patch.
The parties advise that the amended plans in the further amended DA do not involve any removal or other impacts upon the EBS CEEC and therefore a BDAR is no longer required as the development is not likely to significantly affect threatened species.
The Applicant was also granted leave by the Court on 21 October 2025 to rely upon a Vegetation Management Plan (VMP) for the management of the retained vegetation within what is now proposed Lot 140 and also trees that were previously proposed to be contained within Lot 5.
The parties advise that:
The agreed conditions of consent include a requirement for a consolidated VMP to be prepared and submitted for proposed Lot 140 which is required to be implemented in perpetuity unless otherwise agreed between the parties; and
A public positive covenant is also proposed to be created over proposed Lot 140 reinforcing the requirement to implement the VMP which will allow future purchasers of the lot to be aware of the obligations under the VMP.
Chapter 4 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the Campbelltown local government area and the proposed development is subject to s 4.8 of the Biodiversity SEPP as there is an approved koala plan of management for the local government area, being the Campbelltown Comprehensive Koala Plan of Management (CKPoM) approved by the Planning Secretary under the former State Environmental Planning Policy (Koala Habitat Protection) 2019 on 30 July 2020.
The parties advise that in accordance with s 4.17 of Biodiversity SEPP, the CKPoM is taken to be an approved koala plan of management for the purposes of Ch 4 of the Biodiversity SEPP.
Section 4.8 of Biodiversity SEPP requires the Council’s determination of the development application to be consistent with the CKPoM.
The parties advise that:
The Court’s determination of the further amended DA subject to the agreed conditions of consent will be consistent with the CKPoM as a condition has been imposed requiring payment of financial compensation for the proposed removal of three Koala Feed Trees as required by Part 7 of the CKPoM; and
The proposed development is not inconsistent with the design requirements under Part 6 of the CKPoM.
The site is in the Hawkesbury-Nepean Catchment, which is a regulated catchment for the purposes of Ch 6 of the Biodiversity SEPP. Accordingly, the general controls in Div 2 of Pt 6.2 of Ch 6 of the Biodiversity SEPP are applicable.
The parties advise that the jurisdictional requirements in these provisions are satisfied having regard to the following:
The Court can be satisfied that the development ensures the following matters in s 6.6(2) of the Biodiversity SEPP have been complied:
(2) Development consent must not be granted to development on land in a regulated catchment unless the consent authority is satisfied the development ensures—
(a) the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and
(b) the impact on water flow in a natural waterbody will be minimised.
Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and 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.
The parties advise that the site has been historically used for the purposes of residential development and that:
The DA was accompanied by a series of contamination reports which together conclude that the site (including both 36 and 46 Fitzpatrick Street) is suitable for the purposes of the proposed development and makes several recommendations for the mitigation of further contamination risk, including the need to validate the area presently containing the redundant utilities structure in the north-eastern structure following demolition (including removal of an identified asbestos-cement water pipe); and
The proposed conditions of consent include requirements for the recommendations to be implemented, provisions for unexpected finds during works, requirements for fill to be validated, and finally for a site contamination validation report and site contamination audit statement to be provided prior to the issue of a Subdivision Certificate.
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 site is situated within Zone R2 Low Density Residential pursuant to the Campbelltown Local Environmental Plan 2015 (the LEP). Clause 2.3(2) of the LEP requires the consent authority to have regard to the objectives of a zone when determining a development application in respect of land within the zone.
The parties advise that the objectives of Zone R2 Low Density Residential of the LEP have been considered (to the extent that they are relevant to the development) and the parties agree that the development is consistent with the zone objectives.
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.
Pursuant to cl 2.6 of the LEP, land may be subdivided but only with development consent.
Pursuant to cl 2.7 of the LEP, demolition is permissible with development consent.
The site is subject to a minimum subdivision lot size of 420m2 pursuant to the Lot Size Map referred to in cl 4.1 of the LEP. The parties advise that all proposed lots exceed the minimum lot size with the exception of proposed Lots 102, 114 and 128, which are all 375.1m2 in area. This represents a variation in lot size of 10.7% for 3 lots out of a total of 40 lots proposed in the subdivision.
The development standard contained at cl 4.1(3) of the LEP requires that “[t]he size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land”.
The development standard contained in cl 4.1AA(3) of the LEP requires that :
The size of any lot resulting from a subdivision of land to which this clause applies (other than any lot comprising association property within the meaning of the Community Land Development Act 2021) is not to be less than the minimum size shown on the Lot Size Map in relation to that land.
The prescribed minimum lot size is 420m2 pursuant to the Lot Size Map referred to in this clause.
The parties also advise that although the site is located in the Menangle Park Urban Release Area, cl 4.1J of the LEP is not relevant as the land is not identified as being within “Area 4” on the Lot Size Map referred to in cl 4.1J(1) of the LEP.
Clause 4.6 of the LEP relates to exceptions to development standards and provides the consent authority must be satisfied that the Applicant has demonstrated compliance with the development standard is unreasonable or unnecessary in the circumstances and there are sufficient environmental planning grounds to justify the contravention of the development standard.
The Statement of Environmental Effects (prepared by Cohesive Planning, dated September 2025) (the SEE) contains a written request seeking to apply cl 4.6 of the LEP to vary the minimum lot size development standards in cl 4.1(3) and cl 4.1AA(3) of the LEP (the cl 4.6 Request).
The parties confirm that notwithstanding the subsequent amended plans, the non-compliant lots and extent of variation remain the same in the further amended DA as in the original DA, and that the original cl 4.6 request can continue to be applied to the proposed development. I agree with this conclusion.
The parties submit that the Court can be satisfied that the Applicant has adequately demonstrated the following matters as required by cl 4.6(3) of the LEP having regard to the reasons and justifications set out in the cl 4.6 Request:
Compliance with the development standard is unreasonable or unnecessary in the circumstances, and
There are sufficient environmental planning grounds to justify the contravention of the development standard.
The cl 4.6 Request states that the variation is sought to the minimum subdivision lot size development standards contained in cll 4.1 and 4.1AA for 3 lots in the proposed subdivision for the following reasons:
The subdivision layout seeks to achieve a density commensurate with that prescribed by the precinct specific Campbelltown (Sustainable City) Development Control Plan 2015 (DCP);
The proposed subdivision does not seek to provide a residential density across the site that is not consistent with the prescribed density band; and
The reduced lot size for the 3 lots seeks to maintain the prescribed density while compensating for the potential yield lost to the Community Lot that protects the endangered ecological community on the site.
Mr Poisel for the Applicant reiterated that the minimum lot size variation is proposed to both achieve the minimum residential density in this growth area and also to protect biodiversity on land to remain undeveloped.
I am satisfied that the Applicant’s cl 4.6 written request is well founded and that the variation to the minimum lot size development standards is acceptable.
I consider that compliance with the minimum lot size development standards is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP because the proposed development achieves the objectives of the minimum subdivision lot size development standards at cll 4.1 and 4.1AA of the LEP, notwithstanding the 10.7% shortfall in area for 3 lots in the proposed development, for the reasons provided within the Applicant’s cl 4.6 written request, which I adopt.
I am also satisfied that there are sufficient environmental planning grounds to justify contravening the minimum subdivision lot size development standards, as required under cl 4.6(3)(b) of the LEP, for the following reasons as stated in the cl 4.6 Request:
The proposed subdivision pattern results from the objective of meeting the prescribed density controls while maintaining the patch of endangered ecological community on the land;
The proposed lot sizes allow for housing with appropriate setbacks and open space;
The scope of the variation does not result in a development that is inconsistent with the emerging character of the locality; and
There is no benefit to be achieved by strict compliance.
Approval of the proposed development will be in the public interest for the reasons provided above (at [62(1)-(4)]), and because the proposed development is consistent with the objectives for the minimum lots size development standards at cll 4.1 and 4.1AA of the LEP and for development within the R2 Low Density Residential zoning of the subject site for the reasons provided within the Applicant’s cl 4.6 written request, which I also adopt.
The provisions of Pt 6 of the LEP relate to Urban release areas and apply to the site. The parties advise that:
The essential public utility infrastructure is available or adequate arrangements have been made to make it available when required in accordance with cl 6.2(1) of the LEP (refer to further discussion below at [67] – [69] concerning cl 7.10 of the LEP); and
A development control plan providing for the matters specified in cl 6.3(3) of the LEP has been prepared for the land, being Part 8A of Volume 2 of the DCP.
Clause 7.1 of the LEP sets out mandatory considerations for earthworks for which development consent is required. The parties advise that these matters have been adequately considered in the preparation of the Applicant’s plans and accompanying reports and the Respondent’s assessment.
Clause 7.4 of the LEP applies to development on land affected by groundwater salinity and development that may have an adverse impact on salinity processes on any land. The parties advise that:
The DA was accompanied by a Preliminary Salinity Assessment Report prepared by Geotest Services dated 25 May 2018 (the Preliminary Salinity Report) which concludes that the development is unlikely to have any significant impact on the existing salinity of the site or on any downstream sites providing specified management practices are followed during the construction period; and
The Preliminary Salinity Report is incorporated as an approved document in the agreed conditions of consent.
Clause 7.10 of the LEP requires certain services that are essential to the development to be available, or that adequately arrangements have been made to make them available when required. The essential services include those services within the scope of “public utility infrastructure” as referred to in cl 6.2 of the LEP plus other services.
The parties advise that the essential services are available or will be available as follows:
Water and sewage: the Applicant has obtained feasibility advice from Sydney Water by letter dated 26 September 2024 at which indicates that the development will be able to be serviced by a proposed trunk main in Menangle Road and existing sewerage infrastructure in the locality;
Electricity: the Applicant has made inquiries with Endeavour Energy concerning the availability of electricity. Condition of consent No 13 requires that:
“Before the issue of a subdivision works certificate, the applicant shall obtain a letter from both the relevant electricity authority and the relevant telecommunications authority stating that satisfactory arrangements have been made to service the proposed development”;
Stormwater: a temporary on-site basin and associated headwall and tail out are proposed to be constructed and utiltised until the proposed regional stormwater basin becomes available;
Road and vehicular access: the development proposes the construction of roads to access the proposed lots;
Telecommunications: the Applicant has entered into an agreement with NBN Co Limited concerning the provision of broadband infrastructure to the development; and
Natural gas: natural gas is not considered to be an essential service for the purposes of the proposed development.
The parties submit that conditions of consent are also proposed to be imposed ensuring the availability of the essential services. Condition of Consent No 73 requires evidence of the supply of electricity, telecommunications and water to be provided prior to the issue of a Subdivision Certificate.
The parties advise that the site is mapped as containing “biodiversity – significant vegetation” on the Terrestrial Biodiversity Map referred to in cl 7.20 of the LEP, with part of the site mapped on the BV Map. The parties submit that the Court can be satisfied as to the matters in cl 7.20(4)(b) of the LEP having regard to the conclusions of the BDAR, that the EBS CEEC (refer to [32] above) is maintained and consolidated within proposed Lot 140 and that the Condition of consent 37 requires the payment of Koala feed tree compensation.
Contentions relating to inconsistencies and non-compliance with the DCP were raised by the Respondent in the SOFAC.
The parties advise that the provisions of the DCP have been considered by the Respondent pursuant to s 4.15(1)(a)(iii) of the EPA Act in its assessment of the DA.
Having considered the advice of the parties provided above at [22]-[73], I am satisfied that:
The Applicant’s further 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 Campbelltown City Council, as the 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 DA No 4001/2024/DA-SW made on 2 December 2025 to rely on the documents specified below:
| Plans | | Plan no. | Revision no. | Plan title | Drawn by | Date of plan | | 1 | 00 | Plan of proposed subdivision | North Western Surveys | 10/11/2025 | | 1 | 00 | Plan of proposed subdivision building envelope | North Western Surveys | 10/11/2025 | | 001 | D | Face Sheet | North Western Surveys | 14/11/2025 | | 002 | C | General arrangement plan | North Western Surveys | 14/11/2025 | | 101 | C | Sediment & erosion control plan | North Western Surveys | 14/11/2025 | | 103 | D | Tree impact plan | North Western Surveys | 14/11/2025 | | 104 | D | Tree removal plan | North Western Surveys | 14/11/2025 | | 201 | C | Services plan | North Western Surveys | 14/11/2025 | | 301 | D | Cut fill depth plan | North Western Surveys | 14/11/2025 | | 402 | D | Proposed civil works | North Western Surveys | 14/11/2025 | | 404 | D | Proposed civil works | North Western Surveys | 14/11/2025 | | 702 | C | Internal catchment plan | North Western Surveys | 14/11/2025 | | 710 | C | WSUD catchment plan | North Western Surveys | 14/11/2025 | | 901 | C | Lot calculation & landscaping plan | North Western Surveys | 14/11/2025 | | Documents | | Document title | Prepared by | Date | | Geotechnical Investigation (Report No: 37644SFrpt) | JK Geotechnics | 12 June 2025 |
The Court orders:
Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $9,000 within 21 days of these orders.
The appeal is upheld.
Development Application No 4001/2024/DA-SW, as amended, for the demolition of existing structures, tree removal, road works and civil works to create 40 Torrens title lots on the land at 36 and 46 Fitzpatrick Street, Menangle Park, NSW, 2563, legally known as Lot B DP 364350, Lot 1 DP 389348, Lot 55 DP 10718 and Lot 56 DP 1102480 and associated stormwater drainage works, road works and earthworks on the adjoining land legally described as Lot A DP364350, Lot 57 DP 10718 and Lot 41 DP 1285744, is determined by the grant of development consent subject to the conditions at Annexure A.
Annexure A (439 KB, pdf)
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Weiya Development Pty Limited
Campbelltown City Council [2026] NSWLEC 1069