Gales-Kingscliff Pty Limited v Tweed Shire Council

[2025] NSWLEC 1599

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gales-Kingscliff Pty Limited v Tweed Shire Council [2025] NSWLEC 1599

Hearing dates:

Conciliation conference on 15 August 2025

Date of orders:

21 August 2025

Decision date:

21 August 2025

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) The Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application, in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed.

(3) Development Application No. 23/0438 for an internal road and earthworks involving filling and drainage works, at Lots 1-9 DP 781714; Lots 11-14 DP 871753; part of the unnamed public road reserve immediately west of the northern part of Lot 11 DP 871753 that provides a pedestrian connection between Drift Court and Blue Jay Circuit; and part of Turnock Street; is determined by the grant of consent, subject to the conditions set out at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties - orders

Legislation Cited:

Coastal Management Act 2016 (NSW), s 5

Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7, 8.15

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

Environmental Planning and Assessment Regulation (NSW) 2021, s 38

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.138

Tweed Local Environmental Plan 2014, cll 5.21, 7.1, 7.2, 7.6, 7.10

Category:

Principal judgment

Parties:

Gales-Kingscliff Pty Limited (Applicant)
Tweed Shire Council (Respondent)

Representation:

Counsel:
N Eastman SC (Applicant)
T To (Respondent)

Solicitors:
Mills Oakley (Applicant)
HWLE Lawyers (Respondent)

File Number(s):

2024/227570

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application No. 23/0438 for an internal road and earthworks involving filling and drainage works (the proposal), at Lots 1-9 DP 781714; Lots 11-14 DP 871753; part of the unnamed public road reserve immediately west of the northern part of Lot 11 DP 871753 that provides a pedestrian connection between Drift Court and Blue Jay Circuit; and part of Turnock Street (the site), by Tweed Shire Council (the Council).

2. 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 15 August 2025. I presided over the conciliation conference. 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. 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.

3. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended application

4. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW). The plans and documents comprising the amended application are:

(i) Plans:

Drawing Number	Issue	Drawing Name	Date
PS03-A300	C	Proposal	05/06/2025
PS03-B300	C	Sediment and Erosion Control Plan	05/06/2025
PS03-C100	C	Grading and Drainage	05/06/2025
PS03-C500	C	Grading and Earthworks (showing cut fill depth)	05/06/2025
PS03-C600	C	Grading Site Sections (sheet 1)	05/06/2025
PS03-C601	C	Grading Site Sections (sheet 2)	05/06/2025
PS03-E300	A	Drainage Longitudinal Section Sheet 1	05/06/2025
PS03-E301	A	Drainage Longitudinal Section Sheet 2	05/06/2025
PS03-E700	B	Music Catchment Plan Layout and Results	05/06/2025

(ii) Drawings prepared by Bitzios:

Drawing Number	Issue	Drawing Name	Date
P6691 Sheet 1	A	Map of Lots on Haul Route – Map 1	13/06/2025
P6691 Sheet 2	A	Map of Lots on Haul Route – Map 2	13/06/2025

(iii) Statement of Environmental Effects prepared by JPD planning and Development Consultants dated July 2025;

(iv) Engineering Works Assessment (Issue 4) prepared by Martens & Associates dated 10 June 2025;

(v) Construction Noise and Vibration Impact Assessment (Revision 7) prepared by Stantec dated 13 August 2025;

(vi) Koala Habitat Assessment Report prepared by Cumberland Ecology dated 17 June 2025;

(vii) Test of Significance for Freshwater Wetland and Wallum Froglet prepared by Cumberland Ecology dated 17 June 2025; and

(viii) Letter to Gales clarifying extent of vegetation clearing assessed under the current DA prepared by SLR Consulting dated 17 June 2025.

Pre-conditions to the grant of consent

5. (a) The land is within a coastal zone as defined under s 5 of the Coastal Management Act2016 (NSW). Chapter 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies to the site as part of the site is identified as coastal use are’ on the Coastal Use Area Map under the Resilience and Hazards SEPP. I accept the Council’s submission that the Flora and Fauna Assessment Report included in the application confirms that proposal has taken into account the surrounding coastal and built environment and the bulk, scale and size of the proposal, which is designed, sited and will be managed to avoid the following adverse impacts:

• existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability;

• overshadowing, wind funnelling and the loss of views from public places to foreshores;

• the visual amenity and scenic qualities of the coast, including coastal headlands;

• Aboriginal cultural heritage, practices and places; and

• cultural and built environment heritage.

6. I accept the Council’s submission that the proposal is not likely to cause increased risk of coastal hazards on that land or other land because the application is for a change of use of fill material and haulage and involves no physical change to the coastal environment.

7. Section 4.6 of Resilience and Hazards SEPP, Contamination and remediation must be considered in determining the proposal. A Preliminary Site Investigation and dated 16 August 2023 has been prepared by HMC Environmental Consulting Pty Ltd and is included in the application. I accept the Council’s submission, based on the Preliminary Site Investigation, that remediation of the site is not required as the site is unlikely to be contaminated and is suitable for the proposed development.

8. The Tweed Local Environmental Plan 2014 (LEP 2014) applies to the site. A Statement of Environmental Effects has been prepared by JPD Planning and Development Consultants dated July 2025 (the SEE) and is included in the application. The SEE includes the following regarding permissibility of the proposal and the purpose of the proposal:

• Filling of the land is required to raise its level above the design flood level to make it suitable for future urban development.

• The proposed changes to the haulage route, earthworks and drainage works are located on land that is zoned R1 General Residential on the LEP Land Zoning Map.

• The reinstatement of a drainage connection to the Blue Jay Circuit Drainage Schedule will require works on land owned by Council that is zoned R2 Low Density Residential. The drainage works are permitted with consent pursuant to s 2.138 of State Environmental Planning Policy (Transport and Infrastructure) 2021.

• The filling activities proposed by the proposal are earthworks which are permitted with consent in the R1 General Residential zone (cl 7.2(2) of LEP 2014).

• Turnock Street is zoned R1 General Residential. The proposed temporary kerb and vertical delineation devices that separate the vehicle carriageway from the shared pedestrian/bicycle pathway proposed on Turnock Street are permitted with consent as development for the purposes of ‘Roads’ in the R1 Land Use Table in LEP 2014.

The proposal is consistent with the relevant objectives of the R1 and R2 zones in that it will:

• make the land suitable for the future provision of housing needs of the community; and

• be suitable for the future provision of a variety of housing types and densities; and

• be suitable for the future provision of housing needs of the community; and

• be suitable for the future provision of facilities or services to meet the day-to-day needs of residents.

9. Part of the site is identified as being below the flood planning level and therefore within the flood planning area. The majority of the fill was approved under the base consent. The proposal is for an additional 472m² of fill material in the north of Lot 11 DP871753. I accept the Council’s submission that the proposal satisfies the matters under cl 5.21(2) of LEP 2014. I am satisfied that the matters under cl 5.21(3) are satisfactorily addressed by the application, including the Engineering Works Assessment prepared by Martens & Associates Pty Ltd dated 10 June 2025, which concludes the proposal:

• is compatible with the flood function and behaviour on the land;

• will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties;

• will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood;

• incorporates appropriate measures to manage risk to life in the event of a flood; and

• will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

10. An acid sulfate soils (ASS) Management Plan was approved under DA05/004. I accept the Council’s submission that the updated ASS Management Plan, included in the application, complies with the current regulatory requirements under cl 7.1(3) of LEP 2014.

11. Consent is required for earthworks, pursuant to cl 7.2 of LEP 2014. I accept the Council’s submission that the SEE and the Engineering Works Assessment prepared by Martens & Associates Pty Ltd and dated 10 June 2025, included in the application, address the relevant matters under cl 7.2(3) and that the objective of cl 7.1(1) is met by the proposal.

12. Clause 7.6 of LEP 2014 applies to all land in residential zone. I accept the Council’s submission that the proposal:

• is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

• includes on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

• avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

13. I accept the Council’s submission that the essential services required for the proposal are met, pursuant to cl 7.10 of LEP 2014.

Conclusion

14. I have considered the submissions made by the Council in the Jurisdictional Statement provided to the Court on 15 August 2025 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

15. The orders of the Court are:

1. The appeal is upheld.

2. The Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application, in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed.

3. Development Application No. 23/0438 for an internal road and earthworks involving filling and drainage works, at Lots 1-9 DP 781714; Lots 11-14 DP 871753; part of the unnamed public road reserve immediately west of the northern part of Lot 11 DP 871753 that provides a pedestrian connection between Drift Court and Blue Jay Circuit; and part of Turnock Street; is determined by the grant of consent, subject to the conditions set out at Annexure A.

Susan O’Neill

Commissioner of the Court

Annexure A (377 KB, pdf)

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Decision last updated: 22 August 2025