Abuduhou v Campbelltown City Council

[2025] NSWLEC 1790

Land and Environment Court

New South Wales

Medium Neutral Citation:

Abuduhou v Campbelltown City Council [2025] NSWLEC 1790

Hearing dates:

Conciliation conference 27 October 2025

Date of orders:

11 November 2025

Decision date:

11 November 2025

Jurisdiction:

Class 1

Before:

Porter C

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 Respondent’s costs thrown away as a result of amending the development application, in the agreed amount of $13,000.

(2) The appeal is upheld.

(3) Development consent is granted to 4212/2023/DA-RS for the demolition of existing structures and construction of an attached dwelling housing development consisting of four x two storey attached dwellings and Torrens title subdivision into four lots at 17 Genty Street, Campbelltown subject to conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPEAL — attached dwellings — conciliation conference — agreement between the parties — orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7

Land and Environmental Court Act 1979 (NSW), s 34

Campbelltown Local Environmental Plan 2015, cll 2.6, 2.7, 4.3, 4.4, 5.21, 7.1, 7.4, 7.10, 7.13

Environmental Planning and Regulation 2021 (NSW), ss 38

State Environmental Planning Policy (Biodiversity and Conservation), ss 6.6, 6.8, 6.7, 6.9, 6.10, chs 4, 6

State Environmental Planning Policy (Sustainable Buildings) 2022

State Environmental Planning Policy (Precincts—Western Parkland City) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Cases Cited:

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

Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245

Category:

Principal judgment

Parties:

Mazen Abuduhou (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
J Corradini-Bird (Solicitor) (Respondent)

Solicitors:
MillerPrince (Applicant)
Marsdens (Respondent)

File Number(s):

2024/439550

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of development application 4212/2023/DA-RS. The development application seeks consent for demolition of existing structures and construction of four attached dwelling houses with Torrens title subdivision into four lots at 17 Genty Street, Campbelltown (Lot 4 in DP 263512) (site).

2. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) to the Applicant amending DA-4212/2023/DA-RS in accordance with the documents listed below (amended DA):

1.	Amended Architectural Plans prepared by Taylored Designs and Drafting, Sheets 1 -11, Revision I	14 October 2025
	Proposed Subdivision Plan prepared by Taylored Designs & Drafting, Sheet 1 of 1, Revision I	14 October 2025
	Landscape Plan prepared by Taylored Designs & Drafting, Sheet 1 of 1, Revision I	14 October 2025
2.	Amended stormwater plans prepared by Deboke Engineering Consultants, Drawings S100, S101, , S201, S202, S300, S301, S302, S303, S400, S401 and S500, Revision 5	5 October 2025
3.	Flood Impact Report prepared by Deboke Engineering Consultants, Revision G	13 October 2025
4.	Salinity Assessment and Management Plan prared by KFM Geotech	7 October 2025

3. These proceedings were initially listed for a hearing on 27-28 October 2025. Prior to the hearing commencing and subject to the above amendments, the parties agreed that the contentions had been resolved and requested a conciliation conference. The Court arranged a conciliation conference under
   s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 27 October 2025. I presided over the conciliation conference.

4. The parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to 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.

Jurisdictional Prerequisites

5. 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.

6. 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.

7. In considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that there ‘are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement’ and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60] to [65].

8. I have carried out the required jurisdictional check: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [202]. For the reasons set out below, 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.

Owners consent

9. I am satisfied that owners’ consent has been provided for the DA, which accompanied the Class 1 Application.

Community notification and objections

10. The Respondent notified the DA between 29 November 2023 to 21 December 2023. No submissions were received.

Campbelltown Local Environmental Plan 2015

11. The site is zoned R3 Medium Density Residential under the Campbelltown Local Environmental Plan 2015 (CLEP). The proposed development for attached dwellings is permitted with consent and the parties have had regard to the objectives of the zone.

12. The parties agree and I accept that the following applicable provisions are met:

1. Clause 2.6 permits subdivision with consent.

2. Clause 2.7 permits demolition works with consent, as sought by the amended DA.

3. Clause 4.3 height of buildings prescribes a maximum height of 9m. The architectural plans prepared by Taylored Designs and Drafting Revision H (architectural plans) demonstrate that the development complies with the height limit.

4. Clause 4.3(A) restricts development for attached dwellings to not exceed two storeys. The architectural plans demonstrate the proposal does not exceed two storeys.

5. Clause 4.4(2A) floor space ratio (FSR) applies to the site, with a maximum FSR of 0.75:1. The architectural plans demonstrate that the proposed FSR is 0.67:1.

6. Clause 5.21 flood planning applies to the site. On the basis of the Flooding and Stormwater Engineering Joint Expert Report, stormwater plans prepared by Deboke Engineering Consultants dated 5 October 2025 (stormwater plans) and Flood Impact Report prepared by Deboke Engineering Consultants Revision G (Flood Impact Report), I accept the parties’ agreement that the proposal will be compatible with the flood behaviour of the land, will not adversely affect other properties or waterways and adopts a shelter in place strategy for flash flooding events. The Flood Impact Report has also considered the impacts of climate change.

7. Clause 7.1 earthworks applies to the site. On the basis of the stormwater plans, conditions of consent and detailed explanation provided at paragraph 41 of the jurisdictional statement, I accept that the parties have adequately considered the provisions.

8. Clause 7.4 salinity applies to the site. The amended DA is accompanied by a Salinity Assessment and Management Plan prepared by KFM Geotech dated 7 October 2025 and conditions of consent have been imposed to address salinity.

9. Clause 7.10 essential services applies. I accept on the basis of the architectural plans, stormwater plans, landowners consent for the adjoining easement, and existing services available to the site, that the provision has been satisfied.

10. Clause 7.13 design excellence applies to the proposal and has been addressed in the Statement of Environmental Effects prepared by Taylored Designs and Drafting dated 29 October 2023. The parties are satisfied that the proposal satisfies design excellence.

Environmental Planning and Assessment Regulation 2021 and State Environmental Planning Policy (Sustainable Buildings) 2022

13. The parties agree and I am satisfied that the amended DA is accompanied by an amended BASIX Certificate that meets the provisions of s 27 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg) and the State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP SB), including embodied emissions.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

14. Chapter 4 Koala Habitat Protection 2021 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies, and Council has adopted the Campbelltown Comprehensive Koala Plan of Management 2018. The DA does not include any removal of native vegetation and therefore, Vegetation Assessment Reports and Koala Activity Assessment Reports are not required.

15. Chapter 6 of SEPP BC applies to the site, which is located within the Georges River Catchment. The jurisdiction statement sets out in detail, at paragraph 29, how ss 6.6 and 6.8 are addressed and that the areas ss 6.7, 6.9 and 6.10 are concerned with will not be impacted given the extent of works proposed and site’s lack of proximity to aquatic ecology, recreation areas and any adjoining local government areas.

16. The amended DA is accompanied by a Flood Impact Report and stormwater plans that demonstrate how stormwater impacts from the amended DA have been minimised. In particular, that the quality of water will be neutral or beneficial through the stated sediment controls during construction and the stormwater plans demonstrate acceptable ongoing management of water and water quality, including use of an existing easement. The Flood and Stormwater Engineering Joint Expert Report details the expert’s agreement that the flooding issues raised by Council have been resolved and that amendments have been made to ensure flood waters are not impeded and appropriately managed by the proposed development. The stormwater plans form part of the conditions of consent at Annexure A and further conditions within Annexure A deal with ongoing stormwater and flood management. I accept that the proposed development is unlikely to have an adverse environmental impact.

17. With consideration of the above and the jurisdictional statement, the parties agree, and I accept that the provisions of SEPP BC have been satisfied.

State Environmental Planning Policy (Precincts—Western Parkland City) 2021

18. The subject site is located within the Greater Macarthur Growth Area. There are no jurisdictional matters in the State Environmental Planning Policy (Precincts—Western Parkland City) 2021.

State Environmental Planning Policy (Resilience and Hazards) 2021

19. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The site has a history of residential use for many years. The parties submit that there is no evidence of any contamination. Accordingly, the parties agree and I accept that the provisions of s 4.6 of SEPP RH have been adequately addressed.

Heads of consideration

20. On the basis of the documentation accompanying the Class 1 appeal and the jurisdictional statement I accept that the heads of consideration of s 4.15 of the EPA Act have been considered.

Conclusion

21. 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.

22. 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.

23. 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.

Orders

24. 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 Respondent’s costs thrown away as a result of amending the development application, in the agreed amount of $13,000.

2. The appeal is upheld.

3. Development consent is granted to 4212/2023/DA-RS for the demolition of existing structures and construction of an attached dwelling housing development consisting of four x two storey attached dwellings and Torrens title subdivision into four lots at 17 Genty Street, Campbelltown subject to conditions of consent at Annexure A.

S Porter

Commissioner of the Court

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Annexure A (407 KB, pdf)

Decision last updated: 11 November 2025