Skyrock Destiny Pty Ltd v Wingecarribee Shire Council

[2025] NSWLEC 1517

Land and Environment Court

New South Wales

Medium Neutral Citation:

Skyrock Destiny Pty Ltd v Wingecarribee Shire Council [2025] NSWLEC 1517

Hearing dates:

Conciliation conference on 3 July 2025

Date of orders:

22 July 2025

Decision date:

22 July 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application 23/1481 for demolition of some existing structures, partial removal of hedges, earthworks, and the construction of two x two storey townhouses resulting in a multi dwelling housing development with associated landscaping and strata subdivision at 138 Mittagong Road, Bowral, is determined by granting development consent, subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – multi dwellings – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7

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

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

State Environment Planning Policy (Biodiversity and Conservation) 2021, Ch 6

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

State Environmental Planning Policy (Sustainable Buildings) 2021

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.98, 2.100, 2.119

Wingecarribee Local Environmental Plan 2010, cll 2.3, 2.7, 4.1, 4.3, 4.4, 5.21

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245

Category:

Principal judgment

Parties:

Skyrock Destiny Pty Ltd (Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
R O’Gorman-Hughes (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Hartley Solicitors (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2024/474284

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of DA-23/1481 for demolition of some existing structures, partial removal of hedges, earthworks, and the construction of two x two storey townhouses resulting in a multi dwelling housing development with associated landscaping and strata subdivision (DA) at 138 Mittagong Road, Bowral, legally known as Lot 1 DP 1296171 (site).

2. The proceedings commenced as a hearing and started on site on 3 July 2025. Following joint reporting of the experts and hearing the concerns of several nearby residents, the parties advised that the issues in dispute had been resolved by amendments to the proposal 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 (NSW) (LEC Act) between the parties that same day. I presided over the conciliation conference.

3. The Court notes that the Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) to the Applicant amending DA-23/1481 (amended DA) in accordance with the documents listed below:

1. Architectural plans, prepared by ELK Designs.

Drawing No.	Drawing Title	Issue	Date
DA000	COVER PAGE	C	22.09.2023
DA010	SITE ANALYSIS PLAN	B	21.09.2023
DA011	EXISTING SITE PLAN	B	01.09.2023
DA020	DEMOLITION PLAN	P5	29.05.2025
DA030	SITE PLAN	P26	26.06.2025
DA035	SITE COVERAGE PLAN	P16	26.06.2025
DA100	GROUND FLOOR	P19	29.05.2025
DA110	FIRST FLOOR	P18	29.05.2025
DA111	FIRST FLOOR	P7	29.05.2025
DA150	ROOF PLAN	P9	29.05.2025
DA300	ELEVATIONS	P15	29.05.2025
DA301	ELEVATIONS	P11	29.05.2025
DA350	EXTERNAL FINISHES	P6	29.05.2025
DA400	SECTIONS	P10	17.06.2025
DA401	SECTIONS	P1	18.06.2025
DA900	EXTERNAL SHADOW DIAGRAMS	P15	17.06.2025
DA901	EXTERNAL SHADOW DIAGRAMS	P15	17.06.2025
DA902	VIEWS FROM THE SUN	P11	17.06.2025
DA903	EXISTING HSADOW DIAGRAMS	P5	17.06.2025
DA904	EXISTING SHADOW DIAGRAMS	P5	17.06.2025
DA905	SHADOW DIAGRAM (1M ELEVATED PLANE)	P1	18.06.2025
DA906	SHADOW DIAGRAM (1M ELEVATED PLANE)	P1	18.06.2025
DA960	SEDIMENT CONTROL	B	21.09.2023

2. Civil engineering plans, prepared by CivPlan.

Drawing No.	Drawing Title	Revision	Date
22022-101	COVER AND INDEX	6	25.06.2025
22022-102	GENERAL ARRANGEMENT PLAN	6	25.06.2025
22022-103	EXISTING AND SITE PREPARATION PLAN	6	25.06.2025
22022-104	SOIL AND WATER MANAGEMENT LAYOUT PLAN	6	25.06.2025
22022-105	SOIL AND WATER MANAGEMENT DETAILS	6	25.06.2025
22022-106	BULK EARTHWORKS LAYOUT PLAN	6	25.06.2025
22022-107	ACCESS DRIVEWAY LONGITUDINAL AND TYPICAL SECTIONS	6	25.06.2025
22022-108	STORMWATER DRAINAGE LAYOUT PLAN	6	25.06.2025
22022-109	STORMWATER QUANITY MODELLING PLAN	6	25.06.2025
22022-110	STORMWATER QUALITY MODELLING PLAN 1 OF 2	6	25.06.2025
22022-111	STORMWATER QUALITY MODELLING PLAN 2 OF 2	6	25.06.2025
22022-112	SEWER AND WATER LAYOUT PLAN	6	25.06.2025

3. Landscape plans, prepared by JK’s Garden Creations.

Sheet No.	Drawing Title	Date
1	SITE ANALYSIS PLAN	26.06.2025
2	LANDSCAPE PLAN	26.06.2025
3	SPECIFICATION PLAN	26.06.2025

4. Strata plans, prepared by Mark Nicholas Scanlon, surveyor.

Sheet No.	Drawing Title	Reference
1	LOCATION PLAN	B2257
2	FLOOR PLAN – GROUND LEVEL	B2257
3	FLOOR PLAN – LEVEL ONE	B2257

5. BASIX Certificate Number 1344203M_02 prepared by Evergreen Energy Consultants Pty Ltd dated 2 July 2025.

4. The amended DA included the following key amendments:

1. Retention of the rear canopy tree in the south east corner of the site.

2. Redesign of the dwellings to accommodate the tree.

3. Revised landscaping.

4. Increased rear setback from 2.747m to 11.607m.

5. Widened driveway and cross over for two way entering/exiting.

6. Raised floor levels to meet the minimum flood levels.

5. 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.

6. 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

7. 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.

8. I am satisfied that owner’s consent accompanied the DA as the Applicant is the owner. The Respondent notified the DA from 30 June 2023 to 31 July 2023 and again from 18 June 2025 for 14 days. Thirteen submissions were received.

9. The parties clarified that no tree removal was sought for trees on adjoining properties. The demolition plan unhelpfully shows both demolition works and the structural root zones of the retained trees in red. The parties confirmed that the only trees to be removed are those on site and enforced through conditions of consent that specifically name the trees being removed or partially removed (condition 8A – Tree Removal). The trees being removed are consistent with the Arboricultural Impact Assessment prepared by Arboriculture Consultancy dated 28 May 2025, which only identifies trees on the subject site and protection zones of trees on site and on the adjoining sites.

10. At the commencement of the proceedings, the Court and the parties heard oral concerns from a number of objectors.

11. 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) 233 LGERA 170; [2018] NSWCA 245 at [217]).

12. In reaching agreement, the parties have advised the Court that they considered the concerns raised in the written and oral objections and where possible, these have been addressed through amendments, further information or conditions of consent.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

13. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 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 Civil Engineering Concept Design prepared by Civ Plan Revision 6 and the Water Cycle Management Plan prepared by Civ Plan dated 28 May 2025. I accept that the proposed development will have a neutral or beneficial effect on water quality and will not adversely impact any natural waterways, neighbouring properties or fauna or flora.

State Environmental Planning Policy (Resilience and Hazards) 2021

14. The provisions of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site in relation to contamination. The Council’s assessment report and the jurisdictional statement detail that the site has a history of residential use and there is no indication of any contamination. 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 (Sustainable Buildings) 2021

15. The amended DA is accompanied by a BASIX Certificate (1344203M_02) dated 2 July 2025. I accept the parties’ agreement that the provisions of the State Environmental Planning Policy (Sustainable Buildings) 2021 have been met.

State Environmental Planning Policy (Transport and Infrastructure) 2021

16. Sections 2.98 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) - development near rail corridors and s 2.100 of the SEPP TI - impact of rail noise or vibration apply to the proposed development. On the basis of the Road and Rail Noise Impact report prepared by Soundscape Acoustic Consultants dated 8 October 2024 (Road and Rail Impacts Report), and inclusion of its recommendations in the conditions of consent, I accept the parties’ agreement that the provisions have been satisfied. Written notice was given to the rail authority, who did not object to the proposal.

17. Section 2.119 of the SEPP TI - development with frontage to a classified road applies as the site has a frontage to Mittagong Road (a classified road). On the basis of the civil engineering plans, Traffic and Parking Impact Assessment prepared by McLaren Traffic Engineering and Road Safety Consultants dated 28 September 2022, Road and Rail Impacts Report and concurrence from Transport for NSW, I accept the parties’ agreement that the provisions have been satisfied. I accept that access from another road is not possible and that the safety, efficiency and on-going operation of Mittagong Road will not be impacted by the proposal.

Wingecarribee Local Environmental Plan 2010

18. The subject site is zoned R3 Medium Density Residential, where the proposed development for multi dwelling housing is permissible with consent. Pursuant to cl 2.3 of the Wingecarribee Local Environmental Plan 2010, I have had regard to the objectives of the zone. Clause 2.7 demolition permits demolition with consent, as sought by the amended DA.

19. Clause 4.1 minimum lot size does not apply as the site seeks consent for strata subdivision.

20. There are no stipulated maximums for height and floor space ratio under cll 4.3 height and 4.4 floor space ratio.

21. The previous version of cl 5.21 flood planning applies to the site (due to the lodgement date of the DA). On the basis of the Flood Report prepared by Pavel Kazorovski dated 27 May 2025 (Flood Report), I accept the parties’ agreement the proposed development is compatible with and does not adversely affect flood behaviour in a manner that would adversely impact other development or properties. The Flood Report also details that evacuation routes are not required. I accept that all provisions of cl 5.21 are met.

Heads of consideration

22. 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

23. 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.

24. 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.

25. 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

26. The Court orders:

1. The appeal is upheld.

2. Development Application 23/1481 for demolition of some existing structures, partial removal of hedges, earthworks, and the construction of two x two storey townhouses resulting in a multi dwelling housing development with associated landscaping and strata subdivision at 138 Mittagong Road, Bowral, is determined by granting development consent, subject to the conditions in Annexure A.

S Porter

Commissioner of the Court

Annexure A (892 KB, pdf)

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Decision last updated: 22 July 2025