Schettini v Wingecarribee Shire Council

[2025] NSWLEC 1529

Land and Environment Court

New South Wales

Medium Neutral Citation:

Schettini v Wingecarribee Shire Council [2025] NSWLEC 1529

Hearing dates:

Conciliation conference on 30 June and 1 July 2025

Date of orders:

23 July 2025

Decision date:

23 July 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DA24/0349 for alterations and additions to the existing dwelling house, the construction of an outbuilding and the installation of a swimming pool at 60 Warreeah Lane, Kangaloon, NSW 2576, is determined by a grant of consent subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions – swimming pool – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 8.7, 4.16

Land and Environment Court Act 1979 ss 34, 34AA

Environmental Planning and Assessment Regulation 2021 s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 6, Pt 6.5, ss 6.63, 6.64

Wingecarribee Local Environmental Plan 2010 cll 7.2, 7.5

Category:

Principal judgment

Parties:

Josephine Schettini (Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
C Shaw (Solicitor) (Applicant)
J Palmer (Solicitor) (Respondent)

Solicitors:
Shaw Reynolds Lawyers (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2025/57662

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Wingecarribee Shire Council, of Development Application 24/0349 which seeks consent for alterations and additions to an existing dwelling house, and installation of a swimming pool and outbuilding at 60 Warreeah Lane, Kangaloon.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30 June and 1 July 2025.

4. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings, which involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application. These amendments included a reconfiguration of the additions to the dwelling house, and an adjustment to the location and size of the swimming pool, deck and cabana.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. 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 jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained in a jurisdictional note, and from this I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the owner of the land.

8. The application was adequately notified from 27 December 2023 to January 25 2024. One submission was received, and although that resident was unavailable for the proceedings, I was taken to a location on the neighbouring property from which he directed his concerns. Based on amended application the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in this submission.

9. The site is located within the Sydney Drinking Water Catchment and therefore Pt 6.5 of Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies. From the parties’ submission and the Wastewater Management Site and Soil Evaluation and Disposal System Design dated 13 June 2025 by SEEC (the Wastewater Report), I accept that the carrying out of this development will have a neutral or beneficial effect (NorBE) on water quality. Further, the Council’s Planning Assessment Report dated 11 November 2024 states that the Council is satisfied that the proposed development is consistent with the NorBE guideline, as required by s 6.63. Accordingly, the concurrence of the Regulatory Authority is not required pursuant to s 6.64(4).

10. A BASIX certificate has been provided that relates to the development as amended.

11. The subject site is zoned C3 Environmental Management under the Wingecarribee Local Environmental Plan 2010 (WLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is ancillary to the dwelling house, and is consistent with the objectives of this zone. No building height or floor space ratio controls apply to the development.

12. The site is not identified as a heritage item nor located within a heritage conservation area, however it is located in proximity to a listed heritage item: the Uniting Church and cemetery (Item I445) on the corner of Kangaloon Road and Warreeah Lane. From the parties’ submission and the observations I was directed to make on site, I accept that the heritage item is not visible from the site, and the proposed development will not result in any adverse heritage impacts.

13. The WLEP cl 7.2(3) lists a number of matters relating to earthworks. From the parties’ submission and the Geotechnical Report by White Geotechnical Group dated 2 May 2023, I accept that the matters listed in cl 7.2(3) have been considered. I further note that a condition of consent has been agreed that no fill is to be imported to site for these works, and excavation has been minimised in the amended application. I therefore accept that the requirements of this clause are met.

14. The WLEP cl 7.5 provides for matters relating to natural resources sensitivity – water. From the parties’ submission and the Wastewater Report, I accept that the matters listed at cl 7.5(3) have been considered, and the proposal has been designed, sited and will be managed to avoid any potential adverse environmental impact on the adjacent creek that flows through the site in the Warreeah Gully.

Conclusion

15. For these reasons, 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.

16. 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.

17. The Court notes:

1. Wingecarribee Shire Council, as the relevant consent authority, has agreed, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application No. DA24/0349 in accordance with the documents listed below:

No.	Drawing No	Drawing Title	Prepared By	Date
Architectural Plans
1.	DA80	Cover Page	Angus Steven Architects	02/07/2025
	DA90	Site Survey	Metropolis City Surveyors Pty Ltd	02/07/2025
	DA101	Location Plan and Site Analysis	Angus Steven Architects	02/07/2025
	DA102	Existing + Demo Ground Floor Roof Floor Plan	Angus Steven Architects	02/07/2025
	DA104	Landscape Plan	Angus Steven Architects	02/07/2025
	DA110	Proposed Ground Floor Plan	Angus Steven Architects	02/07/2025
	DA111	Proposed Poolhouse, First and Roof Floor Plan	Angus Steven Architects	02/07/2025
	DA120	East and West Elevations	Angus Steven Architects	02/07/2025
	DA121	North and South Elevations	Angus Steven Architects	02/07/2025
	DA122	Section / Elevation	Angus Steven Architects	02/07/2025
	DA123	Pool Sections	Angus Steven Architects	02/07/2025
	DA130	Finishes Schedule and BASIX Requirements	Angus Steven Architects	02/07/2025
Supporting Documentation
No.	Document			Date
2.	Arboricultural Impact Assessment prepared by Temporal Tree Management			14/05/2025
3.	Wastewater Management: Site and Soil Evaluation & Disposal System, prepared by Strategic Environmental and Engineering Consulting (SEEC) Pty Ltd			13/06/2025
4.	Water Cycle Management Report, prepared by prepared by Strategic Environmental and Engineering Consulting (SEEC) Pty Ltd			13/06/2025
5.	BASIX Certificate (Certificate No. A1802380)			02/07/2025

Orders

18. The Court orders:

1. The appeal is upheld.

2. Development Application No. DA24/0349 for alterations and additions to the existing dwelling house, the construction of an outbuilding and the installation of a swimming pool at 60 Warreeah Lane, Kangaloon, NSW 2576, is determined by a grant of consent subject to conditions contained in Annexure A.

E Washington

Commissioner of the Court

Annexure A (386 KB, pdf)

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Decision last updated: 23 July 2025