Limed Lion Pty Ltd v Wingecarribee Shire Council
[2025] NSWLEC 1416
•13 June 2025
Land and Environment Court
New South Wales
Medium Neutral Citation: Limed Lion Pty Ltd v Wingecarribee Shire Council [2025] NSWLEC 1416 Hearing dates: Conciliation conference 28 May 2025 Date of orders: 13 June 2025 Decision date: 13 June 2025 Jurisdiction: Class 1 Before: Porter C Decision: The Court orders:
(1) The Applicant is to pay the Respondent’s costs thrown away by reason of the amended development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $15,000 within 14 days of the date of this Order.
(2) The appeal is upheld.
(3) Development Application No. 24/1583 for demolition of existing structures and construction on a 90 place child care centre at 2 Holmhale Street, Bowral is determined by the grant of consent, subject to conditions at Annexure A.
Catchwords: DEVELOPMENT APPEAL – centre-based child care centre – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15
Land and Environment Court Act 1979, s 34
Education and Care Services National Regulations (2011 SI 653)
Environmental Planning and Assessment Regulation 2021, s 38
State Environment Planning Policy (Biodiversity and Conservation) 2021, Ch 2 and 6
State Environmental Planning Policy (Industry and Employment) 2021, Ch 3, sch 5, s 3.1
State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.22, 3.23, 3.26
Wingecarribee Local Environmental Plan 2010, cll 2.3, 2.7, 5.10, 7.3
Category: Principal judgment Parties: Limed Lion Pty Ltd (Applicant)
Wingecarribee Shire Council (Respondent)Representation: Counsel:
Solicitors:
L Nurpuri (Applicant)
R McCulloch (Solicitor) (Respondent)
Dentons Australia (Applicant)
Pikes & Verekers (Respondent)
File Number(s): 2024/342319 Publication restriction: Nil
JUDGMENT
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COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of DA-24/1583 for demolition of existing structures and construction of a 90 place childcare centre (DA) at 2 Holmhale Street, Bowral, legally known as Lot 1 in DP 610257 (site).
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The proceedings commenced as a hearing and started on site on 27 May 2025. Following leave being granted for further joint expert conferencing, the parties advised that the issues in dispute had been resolved and requested a s 34 conciliation conference. The request was granted and the Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 28 May 2025. I presided over the conciliation conference.
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The Court notes that the Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA-24/1583 in accordance with the documents listed below:
Acoustic Impact Assessment Revision 11 dated 27 May 2025 prepared by Acoustic Logic.
Operational Plan of Management Revision 7 dated 27 May 2025 prepared by Urbanesque Planning.
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Amendments to the DA include:
Revised acoustic assessment based on all children engaged in outdoor play.
A maximum of four hours of outdoor play per day.
Acoustic fence height reduced from 2.7m to 2.1m
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As part of the conciliation conference process the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable. This decision involved the Court upholding the appeal for the amended DA and granting development consent subject to conditions of consent under s 4.16 of the EPA Act.
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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. I note that 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.
Jurisdictional Prerequisites
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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.
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I am satisfied that owners consent accompanied the DA as provided in the class 1 application. The Respondent notified the DA from 23 August 2024 to 23 September 2024. Ten submissions were received. At the commencement of the proceedings, the Court and party heard oral concerns from a number of objectors.
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As the parties have entered into an agreement, the Court’s role is limited to ensuring that there is jurisdiction / power to grant consent, and not the merits of the issues raised (Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 at [217]). In reaching agreement, the parties have advised the Court that they considered the concerns raised in the written and oral objections.
State Environmental Planning Policy (Biodiversity and Conservation) 2021
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The amended DA includes the removal of 22 trees. As development consent is sought for the tree removal, a tree permit under Ch 2 is not required. The tree removal is supported by the Arboricultural Development Assessment Report prepared by Moore Trees dated May 2024 and amendments to the landscaping is proposed in the amended DA.
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Chapter 6 applies as the proposed development is located in the Sydney Drinking Water Catchment. I accept the parties’ agreement that the provisions have been satisfied on the basis of the Stormwater Design Statement, NORBE assessment on the Civil Design drawings prepared by Greenview Consulting (Civil Design drawings) and the referral from Water NSW. I accept that the proposed development will have a neutral or beneficial effect on water quality.
State Environmental Planning Policy (Industry and Employment) 2021
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The amended DA includes signage visible from the street and Ch 3 of the State Environmental Planning Policy (Industry and Employment) 2021 applies. On the basis of the architectural plans prepared by Innovate Architects (architectural plans) and jurisdictional statement, I accept that the provisions of s 3.1 and sch 5 have been adequately addressed.
State Environmental Planning Policy (Resilience and Hazards) 2021
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The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site in relation to contamination. The Statement of Environmental Effects prepared by Urbanesque Planning dated 7 June 2024 (SEE) and Heritage Impact Statement prepared by NBRS dated 31 May 2024 (HIS) detail the residential and medical uses previously on the site. Council’s Environmental Health referral states that there is no indication of contamination on site and that the site is suitable for the proposed use. Accordingly, the parties agree, and I accept, that the provisions of s 4.6 of SEPP RH have been adequately addressed.
State Environmental Planning Policy (Transport and Infrastructure) 2021
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Chapter 3 Educational establishments and childcare facilities of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies to the proposed development.
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The parties agree and I accept that the proposal complies with the indoor and outdoor unencumbered space requirements as required by ss 3.22 and 3.26 of SEPP TI as shown on the architectural plans and outlined in the jurisdictional statement. Further, based on the agreed submissions from the parties in the jurisdictional statement and SEE, I have considered the provisions of ss 3.22, 3.23, 3.26, the Child Care Planning Guideline and the Education and Care Services National Regulations and accept that the matters have been addressed.
Wingecarribee Local Environmental Plan 2010
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The subject site is zoned R3 Medium Density Residential, where the proposed use for a centre-based child care facility is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone. Clause 2.7 demolition permits demolition with consent, as sought by the amended DA.
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Clause 5.10 heritage conservation applies as the site is located near a local heritage item and Bowral Conservation Area. I accept that the parties have considered the impacts on the heritage significance of the heritage item as demonstrated by the HIS and SEE. Further, the parties agree that any heritage concerns have been overcome by amendments to the proposed landscaping.
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Clause 7.3 earthworks applies. The parties agree that the proposed excavation is minimal and I accept that the provisions have been considered on the basis of the jurisdictional statement, Geotechnical Investigation Report prepared Australian Geoenviro dated 1 June 2025, Civil Design Plans prepared by Greenview Consulting and conditions of consent.
Heads of consideration
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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
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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.
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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.
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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
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The Court orders:
The Applicant is to pay the Respondent’s costs thrown away by reason of the amended development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $15,000 within 14 days of the date of this Order.
The appeal is upheld.
Development Application No. 24/1583 for demolition of existing structures and construction on a 90 place child care centre at 2 Holmhale Street, Bowral is determined by the grant of consent, subject to conditions at Annexure A.
S Porter
Commissioner of the Court
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Annexure A.431 KB.pdf
Decision last updated: 13 June 2025
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