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[2026] NSWLEC 1076
General information, not legal advice.
Land and Environment Court (NSW)
2026-02-24
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: Wolfenden as Executor of the Estate of the late Valerie Margaret Wolfenden v Wingecarribee Shire Council [2026] NSWLEC 1076
Hearing dates: Conciliation Conference on 3 September 2025
Date of orders: 24 February 2026
Decision date: 24 February 2026
Jurisdiction: Class 1
Before: Kullen AC
Decision: The Court orders that:
(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 $12,000, such amount to be paid within 30 days of the date of this order.
(2) The appeal is upheld.
(3) Development consent is granted to Development Application DA23/0076 for a residential subdivision and associated works at Lot 1 in DP608071, 280 Old Hume Highway, Mittagong NSW 2575 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), ss 6.12, 6.15
Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17, 4.46, 8.7, 8.15, Sch 1, Div 2, cl 7
Land and Environment Court Act 1979 (NSW), s 34
Rural Fires Act 1997 (NSW)
Water Management Act 2000 (NSW)
Biodiversity Conservation Regulation 2017 (NSW), s 7.2
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 4, 6 Pt 6.5, ss 4.9, 6.6
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Wingecarribee Local Environmental Plan 2010, cll 2.2, 2.6, 4.1, 5.21, 7.3, 7.5
Texts Cited: Wingecarribee Shire Council, Mittagong Township Development Control Plan incorporating Welby and Renwick, 2021
Category: Principal judgment
Parties: Anthony Wolfenden (First Applicant)
Christopher John Wolfenden (Second Applicant)
Alexandra jane Wolfenden (Third Applicant)
Tania Kim Wolfenden (Fourth Applicant)
Wingecarribee Shire Council (Respondent)
Representation: Counsel:
A Beatty (Solicitor) (Applicants)
R McCulloch (Solicitor) (Respondent)
Solicitor:
Beatty Hughes and Associates (Applicants)
Pikes and Verekers Lawyers (Respondent)
File Number(s): 2025/197895
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 Wingecarribee Shire Council of development application DA23/0076 (the DA). The DA seeks consent for a 5 lot Torrens Title residential subdivision, construction of a new road and tree removal on land at 280 Old Hume Highway, Mittagong NSW 2676, legally known as Lot 1 DP608071 (the site).
The areas of the proposed lots in the DA as submitted were as follows:
(a) Proposed Lot 1: 4,195.56m2; (b) Proposed Lot 2: 4,052.68m2; (c) Proposed Lot 3: 4,212.86m2; (d) Proposed Lot 4: 4,285.63m2; (e) Proposed Lot 5: 7,066.43m2
The construction of a new road is proposed within the existing but unformed Council owned road reserve. The new road would terminate at a cul-de-sac formation that is proposed to be located within a portion of the existing lot to be dedicated for road purposes.
Other civil works for the subdivision development will include the provision of additional sewer drainage services, an extension of the existing reticulated water supply, the installation of ground utilities, and the construction of stormwater drainage and water quality treatment measures.
The proposed works will require the removal of a number of trees on the site.
The DA was lodged with the Respondent on 27 July 2022. The DA was externally referred to Water NSW, NSW Rural Fire Service and the Department of Planning and Environment – Water.
On 25 November 2024 the Respondent determined to refuse the DA.
On 23 May 2025 the Applicant filed Class 1 proceedings with the Court.
On 24 July 2025 the Court granted leave to amend the DA (the amended DA) to include amended and additional civil, water catchment and stormwater plans and a stormwater management plan.
The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 8 August 2025. The SOFAC addresses the amended DA. The Applicant filed its Statement of Facts and Contentions in reply on 22 August 2025.
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 3 September 2025, commencing with an on-site view. I presided over the conciliation conference. Five submissions were received in response to the original notification of the DA, and five submitters who attended the on-site view made oral submissions to the Court.
The s 34 conciliation conference was adjourned a number of times for the parties to reach an agreement on the proposed development. The parties reached a s 34 agreement on 3 December 2025. This decision involved the Court upholding the appeal and granting development consent to the DA, subject to conditions, as agreed by the parties.
The parties advise that the amended DA was further amended by the Applicant (the further amended DA) during the s 34 conciliation process as follows:
The proposed stormwater system has been amended to ensure that there are no adverse flood impacts on adjoining properties and to provide a flood-free building envelope within Lots 4 and 5;
The width of the access handle has been increased to 4.5m along its full length and the dimensions of the turning head to the cul-de-sac increased;
Comprehensive flood modelling has been undertaken assessing the pre and post development flood impacts, which demonstrates that there would be no adverse flood impacts on neighbouring properties; and
Further compliance assessments under cll 5.21 and 7.5 of the Wingecarribee Local Environmental Plan 2010 (the LEP) and the flood matrix in the Mittagong Township Development Control Plan incorporating Welby and Renwick 2021 (the DCP) have been undertaken, which demonstrate that the development adequately satisfies the relevant requirements.
The parties advise that the further amended DA satisfactorily addresses the contentions raised by the Respondent in the SOFAC. The reasons stated for the grant of consent in Annexure A filed by the parties with the Court on 2 December 2025 are as follows:
the impact of the development on the category 3 watercourse mapped on the site has been appropriately addressed;
the existing northern access driveway for Lot 1 will be closed and an alternative entry point created;
the internal road and turning head will be adequately sized;
appropriate arrangements have been made for the supply of water, sewer and other services to the new lot;
access from the new lots to Gibbergunyah Lane will be restricted to emergency services only;
an appropriate interallotment drainage system incorporating on site detention, drainage swales and a bio-basin will be provided;
the stormwater management plan and supporting material adequately demonstrates that there will be a neutral or beneficial effect on the water catchment in compliance with s 6.6 State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) (refer to [31] – [34]); and
Assessment under Clause 5.21 of the LEP and flood matrix in the Mittagong Township Development Control Plan incorporating Welby and Renwick 2021 (the DCP) (refer to [43] and [46]) has been provided and satisfactorily demonstrates that the development is compatible with flood function and behaviour.
The signed s 34 agreement, Annexure A (Conditions of Consent) were filed with the Court on 2 December 2025. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites. The amended plans (for the further amended DA) were filed on 13 February 2026.
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 further amended 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 10 August 2022 to 9 September 2022. Five submissions were received during the initial notification period. The amended DA was notified from 15 August 2025 to 9 September 2025, and 17 submissions were received.
The parties advise that they have considered the matters raised by the submitters in their written and oral submissions on the proposed development.
The proposed development is integrated development pursuant to s 4.46 of the EPA Act as it requires approvals under the Rural Fires Act 1997 and the Water Management Act 2000. The parties advise that the DA was externally referred to The Department of Planning and Environment – Water, Water NSW and NSW Fire Service. The following responses were received:
Water NSW granted concurrence on 13 September 2022;
NSW Fire Service granted general terms of approval on 3 January 2023; and
Department of Planning and Environment – Water granted general terms of approval on 8 March 2024.
The parties advise that the amended DA was referred to Water NSW on 10 October 2025, and that Water NSW granted amended general terms of approval on 20 October 2025.
The parties submit that the proposed conditions of consent incorporate the most recent general terms of approval from the agencies referred to in [23] – [24] above.
The parties advise that the clearing of vegetation to facilitate the proposed development exceeds the biodiversity offsets scheme threshold under cl 7.2 of the Biodiversity Conservation Regulation 2017 (NSW).
The parties submit that:
A Biodiversity Development Assessment Report (BDAR) has been prepared by Hayes Environmental (dated 18 July 2022) and submitted with the DA. The BDAR has been prepared in accordance with ss 6.12 and 6.15 of the Biodiversity Conservation Act 2016 (NSW).
The agreed conditions of consent for the further amended DA impose a requirement on the Applicant to retire 18 ecosystem credits in accordance with the BDAR.
Chapter 4 of the Biodiversity SEPP contains provisions regarding the conservation and management of areas of natural vegetation that provide habitat for koalas.
Chapter 4 of the Biodiversity SEPP applies to the Wingecarribee local government area and s 4.9 of the Biodiversity SEPP applies to the site.
The parties agree that in accordance with s 4.9(3) of the Biodiversity SEPP, the proposed development is likely to have low or no impact on koalas or koala habitat, as identified in and assessed by the Hayes Environmental Letter dated 26 July 2022 submitted in support of the DA.
Part 6.5 of the Biodiversity SEPP applies to the site as it is located within the Sydney Drinking Water Catchment.
The parties agree that the development is consistent with the NorBE Guideline as assessed in the Martens & Associates Stormwater Management Plan (SMP) dated 26 September 2025 submitted in support of the further amended DA.
WaterNSW provided concurrence conditions in relation to the amended DA by letter dated 20 October 2025 (refer to [24] above) which the parties advise are incorporated in the agreed conditions of consent.
The Court is satisfied that the relevant planning considerations and planning policies of the Biodiversity SEPP are satisfied.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (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 advise the Court that the site is used for residential and ancillary agricultural purposes, as assessed in the Statement of Environmental Effects submitted in support of the DA, is not likely to be contaminated and is therefore suitable for the proposed use.
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 LEP applies to the site and to the proposed development. The site is zoned R5 Large Lot Residential pursuant to cl 2.2 of the LEP. The zone objectives are:
To provide residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality.
To ensure that large residential lots do not hinder the proper and orderly development of urban areas in the future.
To ensure that development in the area does not unreasonably increase the demand for public services or public facilities.
To minimise conflict between land uses within this zone and land uses within adjoining zones.
To provide a restricted range of opportunities for employment development and community facilities and services that do not unreasonably or significantly detract from---
(a) the primary residential function, character and amenity of the neighbourhood, and (b) the quality of the natural and built environments.
The parties agree that the further amended DA is consistent with these zone objectives and the proposed development is permissible with consent pursuant to cl 2.6 of the LEP.
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.
Cl 4.1 of the LEP provides a minimum lot size of 4,000m2 for any subdivision of the site. Each of the subdivided lots proposed by the further amended DA exceed the minimum lot size, the area of which are advised by the parties to be as set out below:
(a) Lot 1 – 4,195.56m2 (b) Lot 2 – 4,052.68m2 (c) Lot 3 – 4,212.86m2 (d) Lot 4 – 4,285.63m2 (e) Lot 5 – 7,066.43m2
The proposed lot sizes in the further amended DA remain the same as in the submitted DA.
Clause 5.21 of the LEP relates to Flood planning. The Respondent advises that in accordance with cl 5.21 of the LEP, the Respondent has considered the flood risks and impacts of the DA, including as assessed in detail in the SMP, and is satisfied that the objectives of cl 5.21 have been met and that the further amended DA satisfies the flood risk requirements of cl 5.21(2) of the LEP.
Clause 7.3 of the LEP relates to Earthworks. The parties advise that the Respondent has considered and is satisfied of the required matters in cl 7.3(3) related to the earthworks proposed under the further amended DA to facilitate the construction of a public road, internal access handle, and the stormwater system, including by reference to the stormwater quality modelling and overland flow modelling in the SMP, the assessment of vegetation, soil, and biodiversity in the BDAR, the consideration of aboriginal heritage and other environmental factors in the Bush Fire Hazard Assessment, and the conditions of consent regulating, among other things, excavation, fill, and erosion and sediment control.
Clause 7.5 of the LEP relates to Natural Resources sensitivity – water. The parties agree that the Respondent has considered the impact of the proposed development on the matters listed in cl 7.5(3) of the LEP, including as assessed in chapter 5.2 of the SMP, and the Respondent is satisfied under cl 7.5(4) of the LEP that the development is designed, sited and managed to avoid any potential adverse environmental impact to the riparian land or land identified as “Natural Waterbodies” on the Natural Resources Sensitivity Map referred to in cl 7.5(2) of the LEP.
Having considered the advice of the parties provided above at [19]-[46], I am satisfied that:
the Applicant’s further amended DA can be approved having regard to the matters in subs 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 Wingecarribee Shire 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 DA23/0076 made on 2 December 2025 to rely on the following amended documents:
| (a) Title Sheet, Location Map & General Notes 0150821-01C (Rev C) | | (b) Existing Site Details Plan 0150821-02C (Rev C) | | (c) Proposed Lot Layout & Road Design Site Plan 0150821-03C (Rev C) | | (d) Sewer Drainage & Water Services Site Plan 0150821-04C (Rev C) | | (e) Bush Fire Hazard Assessment Site Plan 0150821-05C (Rev C) | | (f) Conceptual Erosion & Sediment Control Plan 0150821-06C (Rev C) | | (g) Cover Sheet PS-01-A000 (Rev D) | | (h) Grading Plan PS01-C100 (Rev C) | | (i) Grading Cut-Fill Plan PS01-C500 (Rev C) | | (j) Grading Site Sections PS01-C600 (Rev A) | | (k) Roadworks and Drainage Plan PS01-D100 (Rev C) | | (l) Proposed Public Road (21MRC01) and Accessway (21-MSL01) Longitudinal & Typical Sections PS01-D200 (Rev B) | | (m) Water Quality Catchment Plan, Model and Results Sheet 1 PS01-E700 (Rev C) | | (n) Water Quality Catchment Plan, Model and Results Sheet 1 PS01-E710 (Rev C) | | (o) Stormwater Management Plan P2510897JR01V03 dated 26/09/ 2025 |
The Court orders that:
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 $12,000, such amount to be paid within 30 days of the date of this order.
The appeal is upheld.
Development consent is granted to Development Application DA23/0076 for a residential subdivision and associated works at Lot 1 in DP608071, 280 Old Hume Highway, Mittagong NSW 2575 subject to the conditions of consent at Annexure A.
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Annexure A.478 KB.pdf
Wolfenden as Executor of the Estate of the late Valerie Margaret Wolfenden
Wingecarribee Shire Council [2026] NSWLEC 1076