Dunia v Campbelltown City Council

[2025] NSWLEC 1372

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dunia v Campbelltown City Council [2025] NSWLEC 1372

Hearing dates:

Conciliation conference 5-6 May 2025

Date of orders:

27 May 2025

Decision date:

27 May 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA2555/2022 for tree removal and the construction of a single-story dual occupancy (attached) with associated outbuildings and landscaping at 7 Minerva Road, Wedderburn, legally as known as Lot 801 in DP1170166, is granted, subject to conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – dual occupancy – conciliation conference - agreement between the parties - orders

Legislation Cited:

Biodiversity Conservation Act 2016, ss 6.12, 6.15, 7.2, 7.7, 7.13, 7.16

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Biodiversity Conservation Regulation 2017, cl 6.6

Campbelltown Local Environmental Plan 2015, cll 4.2A, 4.3, 7.5, 7.10, 7.20

Environmental Planning and Assessment Regulation 2021, ss 27, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4, 11, ss 4.8, 4.17

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

State Environmental Planning Policy (Sustainable Buildings) 2022

Category:

Principal judgment

Parties:

Ahmad Dunia (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
M Fozzard (Applicant)
A Hemmings (Respondent)

Solicitors:
DG Briggs and Associates (Applicant)
Marsdens (Respondent)

File Number(s):

2024/89541

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of DA-2555/2022/DA-DO (DA). The DA seeks consent for tree removal and construction of a single storey dual occupancy (attached) with associated outbuildings, in ground swimming pool and landscaping at 7 Minerva Road, Wedderburn NSW, legally known as Lot 801 in DP 1170166 (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 (EPA Reg 2021) to the Applicant amending DA-2555/2022/DA-DO in accordance with the documents listed below (amended DA):

1. Architectural Plans set prepared by Elite Building Design – Rev. H dated 6 May 2025, scaled as shown, comprising:

Drawing Name

Drawing Number

Cover Page

Sheet 1/14

Site Plan

Sheet 2/14

Floor Plan

Sheet 3/14

Footprint Plan

Sheet 4/14

APZ Plan

Sheet 5/14

Floor Plans

Sheet 6/14

Elevations (South and West)

Sheet 7/14

Elevations (North and East)

Sheet 8/14

Elevations/Sections

- South (House and Outbuildings)

- North (House and Outbuildings)

- Section A

Sheet 9/14

Elevations

- North (Unit 2 Outbuilding)

- North (Unit 1 Outbuilding)

- West (Unit 1 & 2 Outbuilding)

Sheet 10/14

Elevations

- East (Unit 1 & 2 Outbuilding)

- South (Unit 2 Outbuilding)

- South (Unit 1 Outbuilding)

Sheet 11/14

Roof Plan

Sheet 12/14

Sediment Control

Sheet 13/14

BASIX

Sheet 14/14

2. Supplementary Statement of Environmental Effects prepared by The Planning Hub dated 2 May 2025.

3. Amended landscape plans prepared by Apex Studios – Landscape Architecture & Urban Design, Revision E dated 28 March 2025 (LA03), 31 March 2025 (LA04), comprising:

Drawing No.	Drawing Name
LA00	Title Page
LA01	Masterplan
LA02	Landscape Plan
LA03	Koala Tree Replenishment Plan
LA04	Plant Schedule

4. Amended Stormwater Concept Plan and Driveway sections prepared by ABCON Job Number 25031, Issue H dated 6 May 2025 comprising:

Drawing No.

Drawing Name

C00

Stormwater Notes

C01

Concept Stormwater Plan

C02

Concept Stormwater Plan

C03

Stormwater Details

C04

Stormwater Details

(Head Wall & Rain Garden Details)

C05

On Site Culvert

C06

OSD Details

C07

Flow Paths

C08

Post Catchment Plan

C09

OSD Calculations

C10

HRV Swept Path

C11

Driveway Sections

C12

Council Standard Drawings

5. Civil Earthworks documentation prepared by ABCON Project Number 24131, Revision F dated 28 April 2025 comprising:

Drawing No.	Drawing Name
000	Cut & Fill Plan
006	Cut and Fill 3D
002	Longitudinal Sections

6. Updated Bushfire Management Report prepared by Mr Matthew Noone (Bushfire Planning & Design) Report BR 473322 – G dated 6 May 2025.

7. Updated BASIX Certificate number 1296787M_04 dated 26 April 2025.

8. Updated NatHERS Certificate No. 6ZNGBN48CE prepared by Danesh Hedayati (generated on 26 April 2025).

9. Arboricultural Impact Assessment prepared by Enviro Ecology, Revision C dated 5 May 2025.

10. Amended Biodiversity Development Assessment Report (BDAR) prepared by Mr John Whyte (Enviro Ecology) ‘Document No. 42026021_BDAR_V7.0’, Version 7.0 dated 5 May 2025.

11. Updated Soil and Site Assessment for Onsite Wastewater Disposal prepared by Harris Environmental, Ref: 5369WW, Version [1.2] dated 5 May 2025.

12. Amended Koala Feed Tree (KFT) Replenishment Plan, Map Version 1_6, dated 6 May 2025.

13. Updated survey prepared by ServTech Reference 01640 dated 19 December 2024, amended on 5 May 2025 to plot ‘Trees from Arborist Report Added to Survey Plan’.

14. VMP figure 13 map version 2_9 dated 6 May 2025.

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 5-6 May 2025. I presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the amended DA and granting development consent to the amended DA subject to conditions.

5. I note that as part of the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters. 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

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 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 set out below.

7. I am satisfied that the land owner’s consent accompanied the DA. The DA was lodged to the Respondent on 9 August 2022. The Respondent notified the DA from 12 August 2022 and 2 September 2022. No submissions were received. Residents located to the south of the site attended the on site viewing and confirmed that they had seen the amended DA and raised no issues.

8. An amended BASIX Certificate accompanied the DA, as required by s 27 of the EPA Reg. It is noted that given the date of DA lodgement, State Environmental Planning Policy (Sustainable Buildings) 2022 does not apply.

Biodiversity Conservation Act 2016

9. The proposed development triggers s 7.2(1)(b) of the Biodiversity Conservation Act 2016 (BC Act) as the development has the potential to significantly affect threatened species and exceeds the biodiversity offsets scheme through the clearing of nature vegetation shown on the Biodiversity Values Map of the Biodiversity Conservation Regulation 2017 (BC Reg). The parties have provided detailed submissions demonstrating how the proposed development satisfies the provisions of the BC Act and BC Reg, as set out below:

1. The amended DA is accompanied by a Biodiversity Development Assessment Report (BDAR) consistent with s 7.7 of the BC Act.

2. The BDAR has been prepared by an accredited person, has assessed the biodiversity values of the land as required, has assessed the impacts of the proposed development in accordance with the biodiversity assessment method (BAM), sets out measures to avoid or minimise the likely impacts, and specifies the biodiversity credits to retire to offset these impacts (s 6.12 BC Act and cl 6.6 BC Reg).

3. The BDAR adequately details the likely impact of the proposal on biodiversity values and appropriate conditions of consent have been imposed to retire the specified number and class of biodiversity values specified in the BDAR (s 7.13 BC Act).

4. Section 7.16 of the BC Act does not apply as there would not be serious and irreversible impacts on biodiversity values.

5. Clause 6.6 of the BC Reg is met as the BDAR addresses the requisite class and number of biodiversity credits to be retired, details the accreditation of the report authority and other experts relied on and contains the dates and certification required by s 6.15 of the BC Act.

10. I accept the parties’ agreement that the BC Act and BC Reg have been satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

11. Chapter 4 Koala Habitat Protection applies to the site. The Campbelltown Comprehensive Koala Plan of Management (CKPOM) applies pursuant to ss 4.8 and 4.17. The parties agree and I accept that the proposed development is consistent with the CKPOM as the proposed works, proposed tree removal and proposed Koala Feed Tree Replenishment Plan will not have any impacts on the protected Koala population or feeding areas as considered by the expert ecologists.

12. Given the lodgement date of the DA, the now repealed Chapter 11 applies to the site. The site is located within the Georges River Catchment.

13. As set out in detail in the jurisdictional statement and ASEE, I accept that the relevant provisions of Ch 11 have been addressed including minimising loss of native vegetation, sewerage management, and stormwater management that also minimises environmental impacts to vegetation, wildlife, adjoining properties and waterways.

State Environmental Planning Policy (Resilience and Hazards) 2021

14. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The jurisdictional statement and Addendum Statement of Environmental Effects prepared by The Planning Hub (ASEE) detail that the site was considered for contamination as part of the previous subdivision (DA-3030/2007/DA-S), where nothing was identified. Since its subdivision for the purposes of residential use, there is no evidence of potential or actual contamination and is unlikely to be contaminated. Accordingly, the parties agree, and I accept that the provisions of s 4.6 of SEPP RH have been satisfied.

Campbelltown Local Environmental Plan 2015

15. The site is zoned C3 Environmental Management under the Campbelltown Local Environmental Plan 2015 (CLEP). The proposed development for a dual occupancy (attached) is permitted with consent and I have had regard to the relevant objectives of the zone.

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

1. Clause 4.2A erection of dwelling houses or dual occupancies (attached) on land in certain rural and conservation zones permits attached dual occupancies in limited circumstances on land zoned C3. The proposed development is eligible pursuant to cl 4.2A(3)(c) as a dual occupancy was permissible prior to the commencement of CLEP 2015. Subclause 4.2A(4) is met as there is no other dwelling or dual occupancy approved or constructed on site.

2. Clause 4.3 height of buildings applies to the site and allows a maximum building height of 9m. The amended DA, as shown on the architectural plans prepared by Elite Building Designs (architectural plans) confirms that the proposed development is less than 9m as shown on the respective elevation and section drawings.

3. Clause 7.5 preservation of the natural environment is met as the proposal does not include any such removal. As indicated on the cut and fill plans, any cut will be reused, and nothing will be exported from site.

4. Clause 7.10 essential services is met as demonstrated by the architectural plans and ASEE.

5. Clause 7.20 terrestrial biodiversity applies as the site is mapped as an area of biodiversity significance. As set out in the jurisdictional statement and ASEE, the parties have considered the objectives of the clause and ensured that the proposed development has been sited, designed and will be constructed and managed to minimise impacts on native biodiversity. The development includes measures to locate the development in a less sensitive part of the site, offset the loss of biodiversity values through the retirement of biodiversity credits and compensatory planting.

Heads of consideration

17. 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

18. 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.

19. 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.

20. 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

21. The Court orders:

1. The appeal is upheld.

2. Development Application DA-2555/2022 for tree removal and the construction of a single-story dual occupancy (attached) with associated outbuildings and landscaping at 7 Minerva Road, Wedderburn, legally as known as Lot 801 in DP1170166, is granted, subject to conditions in Annexure A.

S Porter

Commissioner of the Court 

Annexure A (427 KB, pdf)

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Decision last updated: 27 May 2025