BG Holdings (ACT) 3 Pty Ltd v Shoalhaven City Council

[2025] NSWLEC 1703

Land and Environment Court

New South Wales

Medium Neutral Citation:

BG Holdings (ACT) 3 Pty Ltd v Shoalhaven City Council [2025] NSWLEC 1703

Hearing dates:

Conciliation Conferences on 7 and 28 February, 28 March, 26 May, 23 June and 11 August 2025

Date of orders:

26 September 2025

Decision date:

26 September 2025

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs “thrown away” as a result of the amendment to the development application in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as agreed or assessed within 28 days.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. DA2024/1282 for the demolition of all existing structures and construction of a residential apartment building and a serviced apartment building with basement car parking on land known as 38 and 40 Sydney Street and 1 Bowen Street, Huskisson, NSW, 2540 also known as Lots 5 and 6 DP 17080 and Lot B DP 362384, subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – cl 4.6 variation – residential and serviced apartment buildings – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 3.42, 4.15, 4.16, 4.17, 4.46, 8.15, 8.7, 8.11

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

Rural Fires Act 1997 (NSW), s 100B

Water Management Act 2000 (NSW), s 91

Environmental Planning and Assessment Regulation 2021 (NSW), ss 23, 27, 38

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Housing) 2021, s147

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 3 , ss 2.10, 2.11, 2.12, 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Shoalhaven Local Environmental Plan 2014, cll 2.2, 2.3, 2.7, 4.3, 4.4, 4.6, 7.1, 7.2, 7.11

Texts Cited:

NSW Rural Fire Service, Planning for Bushfire Protection 2019

NSW Department of Planning and Environment, Apartment Design Guide (July 2015)

Shoalhaven Community Consultation Policy for Development Applications (Including Subdivision) 2022

Shoalhaven Development Control Plan 2014

Category:

Principal judgment

Parties:

BG Holdings (ACT) 3 Pty Ltd (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Foundation Law Group Pty Limited (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2024/254857

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 and s 8.11 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal by Shoalhaven City Council (Council) of Development Application No. DA2024/1282 (the DA) for the demolition of all existing structures and construction of a residential apartment building and a serviced apartment building with basement car parking, on land at 38 and 40 Sydney Street and 1 Bowen Street, Huskisson, NSW, 2540, also known as Lot 5 and 6 DP 17080 and Lot B DP 362384 (the site).

2. The DA was lodged with the Council on 6 May 2024. Details of the proposal in the lodged DA include:

1. Demolition of existing structures on the site, inclusive of single dwellings and ancillary structures on each of the three allotments forming the subject site;

2. Construction of a three-storey residential flat building (“Building A”) containing 17 residential apartments (comprising 14 x two-bedroom and 3 x three-bedroom apartments) with rooftop communal open space on the land at 38 to 40 Sydney Street;

3. Construction of a three-storey serviced apartment building (“Building B”) containing a total of 20 serviced apartments (all one-bedroom / studio) on the land at 1 Bowen Street; and

4. Construction of a common basement car parking area accessed off Bowen Street to service both buildings and containing a total of 48 car parking spaces (comprising 28 spaces for Building A (including 1 x visitor space) and 20 spaces for Building B (including 2 x accessible spaces)), 5 motorcycle parking spaces, bicycle storage, residential storage and services.

Conciliation Conference

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 7 February 2025. I presided over the conciliation conference, which commenced with an on-site view, and which was attended by a number of submitters. Five submitters made verbal submissions to the Court at the on-site view.

4. The s 34 conciliation conference was adjourned to 28 February 2025 to allow time for amended plans to be prepared by the Applicant and assessed by the Council, and subsequently further adjourned a number of times to allow the parties time to consider and review the revised plans and to finalise the s 34 agreement and conditions of consent based on an amended development application (the amended DA).

5. After the conciliation conference, and the assessment by the Council of the amended plans, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties advise that the contentions raised by the Council have been adequately addressed through the amended plans and conditions imposed on the development consent.

6. The key changes made in the amended DA arising from the conciliation conference are advised by the parties to be as follows:

1. Architectural Plans

1. Acoustic glazing added to windows (DA101, DA102, DA103);

2. Rooftop terrace removed from Building A (DA104);

3. Building B setbacks modified (DA004, DA005);

4. Building B internal layout modified (DA101-DA104, DA181-DA202);

2. Civil Plans – Updated drawings 101 and 501 to align the location of the proposed kerb with the location which the Council has previously endorsed as part of a Road Rehabilitation Project. These plans also propose a footpath that has been designed to have as little impact as possible on the existing street trees, noting that the street tree removal is proposed due to the kerb alignment rather than the footpath location;

3. Landscape Plans – Updated to reflect the amended civil plans and incorporate the discussion in the conciliation conference comments from the Council. The parties note that these plans are not ‘approved plans’ in the consent because the Council has requested further amendments within the agreed conditions;

4. Clause 4.6 variation request – Additional information provided to reflect the discussions in the conciliation conference between the parties. This document requests a 0.525 metres (m) variation from the 11m standard;

5. Bushfire Report – Updated to demonstrate that the development can achieve the necessary safety standards within the constraints of the site and road. This document reflects the results of the revised modelling carried out by the Council’s bushfire expert and confirms the conclusion of both parties’ experts that the development does not need to rely on an Asset Protection Zone within Council-owned land;

6. Noise Impact Assessment – Updated to reflect the amended architectural plans, namely the removal of the rooftop terrace, and the addition of glazing to windows. This document also provides for a four-person cap on the use of the northeast courtyards / balconies and a six-person cap on the use of the ground floor communal open space;

7. Operational Waste Management Plan – Additional information provided on proposed waste generation, storage and collection methods to respond to Contention 4. The Applicant proposed 660L bins rather than 240L bins to reduce the street frontage required for the bins on collection day and to reduce the time the garbage truck would need to stop at the front of the site;

8. Design Verification Statement – Updated to assist the Council’s review of the amended architectural plans against the Apartment Design Guide (ADG);

9. Arboricultural Impact Assessment – Street Trees – Updated to reflect the amended civil plans. This document proposes to retain Tree 1 and remove Trees 2-18 (root mapping is required for Trees 15 and 16 to confirm whether removal is required);

10. BASIX Assessment Report – Updated to reflect the amended architectural plans;

11. BASIX Certificate No. 1738253M – Updated to reflect the amended architectural plans; and

12. Section J Assessment Report – Updated to reflect the amended architectural plans.

7. A signed s 34 agreement and amended plans were filed with the Court on 15 August 2025. The s 34 agreement is supported by the agreed statement of jurisdictional prerequisites submitted by the parties.

8. 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.

9. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA (as amended).

10. 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.

Environmental Planning and Assessment Act 1979

Owner’s consent

11. The parties advise that the Applicant is the registered proprietor of the site and has given owner’s consent as required by s 23(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

Community Participation

12. The DA was notified and advertised for a period of 28 days (between 10 July 2024 and 7 August 2024) in accordance with the Shoalhaven Community Consultation Policy for Development Applications (Including Subdivision) 2022. Eight submissions were received.

13. The parties advise that they have considered these submissions and are satisfied that the amendments to the proposed development adequately address the concerns raised in the submissions.

Integrated Development

14. The proposed development is integrated development within the meaning of s 4.46 of the EPA Act as a bushfire safety authority is sought pursuant to s 100B of the Rural Fires Act 1997 (NSW). The DA Form also identified that a controlled activity approval was sought pursuant to s 91 of the Water Management Act 2000 (NSW). However, the parties advise that the Department of Planning and Environment – Water has advised that no such approval is required for the development.

15. The parties advise that the Applicant has prepared a Bushfire Report that sets out the bushfire planning matters for the site in accordance with Planning for Bushfire Protection 2019.

16. The Bushfire Report has been referred to the New South Wales Rural Fire Service (RFS), and on 23 May 2025, the RFS issued General Terms of Approval and a Bushfire Safety Authority for the proposed development which is included at Condition 9 in the conditions of consent.

Conditions

17. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Shoalhaven Local Environmental Plan 2014

18. The Shoalhaven Local Environmental Plan 2014 (the LEP) applies to the site and to the proposed development, and:

1. The site is zoned R3 – Medium Density Residential Zone pursuant to cl 2.2 of the LEP;

2. Pursuant to cl 2.3 of the LEP, the consent authority is required to have regard to the zone objectives. The parties advise that they are satisfied that the proposed use of the site is not only a permissible use in the zone (being residential flat buildings and tourist and visitor accommodation), but that the use is consistent with the R3 zone objectives; and

3. 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.

19. The DA seeks consent for demolition of existing structures on the site pursuant to cl 2.7 of the LEP. The parties agree that cl 2.7 of the LEP is satisfied such that the Court would grant the development consent sought.

20. Pursuant to cl 4.3 of the LEP, the maximum height of buildings (HoB) on the site is 11m; and

1. The parties advise that the height of the majority of the proposed development does not exceed this limit, except for the lift overrun which exceeds the height limit by 0.525m, which is a percentage variation of 4.77%;

2. An application to vary the HoB development standard under cl 4.6 of the LEP prepared by Jervis Bay Town Planning (dated 14 March 2025 and amended on 23 July 2025) was submitted with the amended DA. The parties advise that the Court can be satisfied that the Applicant has demonstrated the matters required to be considered under cl 4.6(3) of the LEP based on this request;

3. I am satisfied that the Applicant’s cl 4.6 written request is well founded and that the variation to the HoB development standard is acceptable noting that:

1. The parts of the proposed building that exceed 11m in height include only minor building elements (a very small section of roof) and a lift overrun;

2. The additional height of elements above 11m are well setback from neighbouring dwellings and the additional height will be imperceptible from the surrounding public roads and adjoining property;

3. Visual impacts have been managed through ensuring that those parts of the building exceeding the 11m HoB limit are set towards the centre of the site and away from adjoining residential boundaries;

4. No views towards the ocean or any other landscape feature will be impacted upon as a result of the proposed building height exceedence;

5. Privacy impacts have been managed through appropriate setbacks to boundaries shared with other residential properties;

6. Shadow diagrams demonstrate that the proposed development is acceptable and that solar access will be afforded to adjoining land; and

7. The proposed development will be similar to other recently constructed apartment buildings in the Huskisson area zoned R3 under the LEP despite exceeding the 11m height limit in the minor fashion proposed.

4. I am satisfied that compliance with the HoB development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP because the proposed development achieves the objectives of the HoB development standard, notwithstanding the HoB exceedance for the reasons provided within the Applicant’s written request, which I adopt;

5. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the HoB development standard, as required under cl 4.6(3)(b) of LEP, for the following reasons:

1. Despite the height limit breach, the proposed development is of appropriate form and scale that is compatible with the existing streetscape and the desired future character of the immediate locality;

2. The exceedence of the building height of the proposed development does not result in any unreasonable amenity impact over and above that of a fully compliant development. The proposed development does not give rise to unreasonable adverse visual impacts, overshadowing, overlooking, disruption of views or loss of privacy to neighbouring properties; and

3. It has been demonstrated that strict compliance with the HoB development standard is unreasonable and unnecessary because the proposed development complies with the relevant objectives of both the R3 zone and cl 4.3 of the LEP.

6. Approval of the proposed development will be in the public interest for the reasons provided above (at [20(4)] above), and because the proposed development is consistent with the objectives for the HoB development standard and for development within the R3 Medium Density Residential zoning of the subject site, for reasons provided within the Applicant’s written request, which I also adopt.

21. The parties advise that the site is not subject to a maximum floor space ratio (FSR) on the FSR Map referred to in cl 4.4(2) of the LEP.

22. Clause 7.1 of the LEP relates to acid sulfate soils. The parties advise that the site is mapped as Class 5 Land. The parties advise that:

1. A thorough geotechnical report was submitted as part of the DA, prepared by Terra Insight, dated 8 February 2024, which provides a process of soil neutralisation prior to off-site disposal and that a formal Acid Sulfate Soils (ASS) management plan is not required; and

2. The parties are satisfied that development consent is not required under this clause as an ASS management plan is not required and the assessment prepared by Terra Insight has been provided to the Court.

23. Clause 7.2 of the LEP relates to earthworks. The parties advise that:

1. The Council has not raised any contentions in relation to cl 7.2 of the LEP and the parties agree that cl 7.2 is satisfied such that the Court would grant the development consent sought;

2. The Applicant has provided a Report on Geotechnical Investigation (Geotechnical Report) that determines the subsurface conditions of the site and provides advice on earthworks. The Geotechnical Report discusses earthworks and provides information on groundwater, surface preparation, placement of fill, ease of excavation, and vibration effects on nearby structures; and

3. The Applicant has also provided a Water Sensitive Urban Design Report which outlines the conceptual stormwater quality management for the proposed development, and concludes that those controls will achieve the stormwater quality management objectives. This assessment considers any impacts of the proposed earthworks.

24. Clause 7.11 of the LEP relates to essential services. Under cl 7.11(1) of the LEP, development consent must not be granted to development unless the consent authority is satisfied that any services that are essential for the development are available or that adequate arrangements have been made to make them available when required. The parties advise that they are satisfied that relevant essential services are or will be available to the proposed development when required.

State Environmental Planning Policy (Housing) 2021

25. State Environmental Planning Policy (Housing) 2021 (Housing SEPP) applies to the site. Section 147(1) of the Housing SEPP provides:

(1) Development consent must not be granted to residential apartment development, and a development consent for residential apartment development must not be modified, unless the consent authority has considered the following—

(a) the quality of the design of the development, evaluated in accordance with the design principles for residential apartment development set out in Schedule 9,

(b) the Apartment Design Guide,

(c) any advice received from a design review panel within 14 days after the consent authority referred the development application or modification application to the panel.

26. The Shoalhaven Local Government Area does not have a design review panel. The parties advise that:

1. A detailed Apartment Design Guideline (ADG) compliance table and design verification statement has been prepared as part of the application;

2. The ADG compliance table lists each of the relevant design principles for the proposed development and provides commentary on how each are satisfied; and

3. The parties are satisfied that the DA has given adequate regard to both the design quality principles and the relevant design criteria in the ADG.

State Environmental Planning Policy (Resilience and Hazards) 2021

27. The site is located within the Coastal Environment and Coastal Use Areas. As such, ss 2.10, 2.11 and 2.12 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) apply to the site.

28. The parties advise that:

1. A detailed response to those matters for consideration under ss 2.10 and 2.11 of the Resilience SEPP are set out in the Statement of Environmental Effects (SEE) submitted with the DA; and

2. The parties are satisfied that the proposed development will not have any adverse impact on the coastal environmental area or the coastal use area for the reasons set out in the SEE.

29. The parties advise that they are also satisfied that no hazardous or offensive development as described in Ch 3 of the Resilience SEPP is proposed.

30. Section 4.6 of 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 that:

1. They have considered whether the site is contaminated and are satisfied that the site does not suffer from any form of contamination. The site is currently used for residential purposes and is located within an established residential area.

2. Geotechnical investigations carried out by Terra Insight in February 2024 did not reveal any sign of contamination on the site.

31. The Court is satisfied for the purposes of s 4.6 of the Resilience SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

32. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) applies to the proposed development.

33. The State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) repealed the BASIX SEPP, with effect from 1 October 2023. Section 4.2(1)(a) of the Sustainable Buildings SEPP provides that it does not apply to a development application submitted but not finally determined before 1 October 2023.

34. The DA was lodged on 6 May 2024 but not determined by the Council. Therefore, the BASIX SEPP applies to the DA.

35. The parties advise that pursuant to s 27 of the EPA Regulation, BASIX Certificate 1420213M prepared by Eco Engineering Group was submitted with the DA (and updated on 28 July 2025). A condition of consent is included which requires compliance with the commitments indicated in the BASIX Certificate in accordance with s 27 of the EPA Regulation.

Shoalhaven Development Control Plan 2014

36. The parties agree that the DA can be approved having regard to Shoalhaven Development Control Plan 2014 also noting that the provisions of a development control plan made for the purposes of s 3.42(1) of the EPA Act are not, of themselves, statutory requirements.

Conclusion

37. Having considered the advice of the parties provided above at [11] – [36], I am satisfied that:

1. the Applicant’s amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

2. 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

3. approval of the proposed development is in the public interest.

38. 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.

39. 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.

40. The Court notes:

1. Shoalhaven 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 No. DA2024/1282 to rely on the following amended plans and documents:

Amended Plans
Plan Number	Revision Number	Plan Title	Drawn by	Date of Plan
DA000	Q	Cover Sheet	Oztal Architects	24.03.2025
DA001	Q	Demolition Plan	Oztal Architects	24.03.2025
DA002	Q	Site Plan Existing	Oztal Architects	24.03.2025
DA003	Q	Analysis	Oztal Architects	24.03.2025
DA004	Q	Site Plan	Oztal Architects	24.03.2025
DA005	Q	Site Plan – Ground Floor	Oztal Architects	24.03.2025
DA006	Q	Site Plan – Subdivision	Oztal Architects	24.03.2025
DA010	Q	Area Plans	Oztal Architects	24.03.2025
DA011	Q	Site Compliance – Balcony / Courtyard	Oztal Architects	24.03.2025
DA012	Q	Site Compliance – Deep Soil	Oztal Architects	24.03.2025
DA013	Q	Site Compliance – Communal Open Space	Oztal Architects	24.03.2025
DA100	Q	Plan – Basement	Oztal Architects	24.03.2025
DA101	Q	Plan – Ground Floor	Oztal Architects	24.03.2025
DA102	Q	Plan – Level 01	Oztal Architects	24.03.2025
DA103	Q	Plan – Level 02	Oztal Architects	24.03.2025
DA104	Q	Plan – Roof	Oztal Architects	24.03.2025
DA110	Q	Plan – Unit Types Building A	Oztal Architects	24.03.2025
DA111	Q	Plan – Unit Types Building B	Oztal Architects	24.03.2025
DA112	Q	Plan – Unit Type DDA	Oztal Architects	24.03.2025
DA113	Q	Plan – Unit Types Building A	Oztal Architects	24.03.2025
DA114	Q	Plan – Unit Types Building B	Oztal Architects	24.03.2025
DA180	Q	Context Sections	Oztal Architects	24.03.2025
DA181	Q	Sections	Oztal Architects	24.03.2025
DA182	Q	Sections	Oztal Architects	24.03.2025
DA183	Q	Sections	Oztal Architects	24.03.2025
DA184	Q	Sections	Oztal Architects	24.03.2025
DA185	Q	Sections	Oztal Architects	24.03.2025
DA200	Q	Elevations	Oztal Architects	24.03.2025
DA201	Q	Elevations	Oztal Architects	24.03.2025
DA202	Q	Elevations	Oztal Architects	24.03.2025
DA203	Q	Streetscape Elevations	Oztal Architects	24.03.2025
DA204	Q	Shadow Diagrams	Oztal Architects	24.03.2025
DA205	Q	Solar & Ventilation Diagrams	Oztal Architects	24.03.2025
DA206	Q	Solar Diagrams	Oztal Architects	24.03.2025
DA207	Q	Solar Diagrams	Oztal Architects	24.03.2025
DA210	Q	Colour Sample Board	Oztal Architects	24.03.2025
DA211	Q	Height Plane Diagram	Oztal Architects	24.03.2025
DA220	Q	Artist Illustration – Montage	Oztal Architects	24.03.2025
DA221	Q	Artist Illustration – Montage	Oztal Architects	24.03.2025
DA222	Q	Artist Illustration	Oztal Architects	24.03.2025
DA223	Q	Artist Illustration	Oztal Architects	24.03.2025
DA230	Q	Artist Illustration – Cnr Sydney & Bowen Street	Oztal Architects	24.03.2025
DA231	Q	FRL Markup	Oztal Architects	24.03.2025
DA300	Q	BASIX Notes	Oztal Architects	24.03.2025
101	H	Ground Floor Stormwater Plan	Indesco Pty Ltd	02.06.2025
501	H	Stormwater Details	Indesco Pty Ltd	02.06.2025
-	-	Cover Page	Clouston Associates	25.07.2025
-	A	Character Images	Clouston Associates	-
L101	B	Landscape Plan	Clouston Associates	27.07.2025
L102	B	Landscape Plan – Landscape Planting Plan	Clouston Associates	27.07.2025
-	-	End Page	Clouston Associates	-
Amended/Additional Documents
Document title	Version number	Prepared by	Date of document
Request to vary clause 4.3 in the Shoalhaven Local Environmental Plan 2014	-	Jervis Bay Town Planning	14 March 2025 (amended 23 July 2025)
Bushfire Report	V1.0	Blackash Bushfire Consulting	31 March 2025
Noise Impact Assessment	240091R1 Rev 3	Rodney Stevens Acoustics	22 May 2025
Operational Waste Management Plan	-	Jervis Bay Town Planning	14 March 2025
Design Verification Statement	Rev A	Oztal Architects	4 July 2025
Arboricultural Impact Assessment – Street Trees	Version 3.0	Vertical Tree Management & Consultancy	8 June 2025
BASIX Assessment Report	Rev 2.0	Eco Engineering Group	28 July 2025
BASIX Certificate No. 1738253M (Appendix A to BASIX Assessment Report dated 28 July 2025)	-	Eco Engineering Group	1 March 2024
Section J Assessment Report	Rev 2.0	Eco Engineering Group	28 July 2025

Orders

41. The Court orders that:

1. The Applicant is to pay the Respondent’s costs “thrown away” as a result of the amendment to the development application in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as agreed or assessed within 28 days.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. DA2024/1282 for the demolition of all existing structures and construction of a residential apartment building and a serviced apartment building with basement car parking on land known as 38 and 40 Sydney Street and 1 Bowen Street, Huskisson, NSW, 2540 also known as Lots 5 and 6 DP 17080 and Lot B DP 362384, subject to the conditions set out in Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A (496 KB, pdf)

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Decision last updated: 26 September 2025