TLCDN Pty Ltd v Goulburn Mulwaree Council

[2025] NSWLEC 1326

Land and Environment Court

New South Wales

Medium Neutral Citation:

TLCDN Pty Ltd v Goulburn Mulwaree Council [2025] NSWLEC 1326

Hearing dates:

Conciliation Conferences on 2 December 2024, 22 January, 7 and 21 February, and 4 March 2025

Date of orders:

13 May 2025

Decision date:

13 May 2025

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment to the development application, in the agreed amount of $5000, such amount to be paid within 28 days of the date of this order.

(2) The appeal is upheld.

(3) Development consent is granted to development application No. DA/0008/2324 four (4) unit multi dwelling (detached) housing comprising of the retention of the existing dwelling and the construction of three (3) detached units with associated five (5) lot Community Title Subdivision at Lot 1 of Deposited Plan 1289543, being 158 Nicholson Street, Goulburn subject to the conditions of consent in Annexure A.

Catchwords:

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

Legislation Cited:

Community Land Developments Act 2021

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.15, 8.7, Sch 1, Div 2, s 7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s, 38

Goulburn Mulwaree Local Environmental Plan 2009, cll 2.2, 2.3, 4.1, 4.1AA, 4.3, 4.4, 5.10, 5.21, 7.1A

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, 6, ss 6.14, 6.6, 6.61

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Texts Cited:

Goulburn Mulwaree Council Community Participation Plan 2024

Goulburn Mulwaree Development Control Plan 2009

Category:

Principal judgment

Parties:

TLCND Pty Ltd (Applicant)
Goulburn Mulwaree Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicant)
K Mortimer (Solicitor) (Respondent)

Solicitor:
Storey & Gough (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2024/302746

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 by the Goulburn Mulwaree Council of development application No. DA/0008/2324 (the DA).

2. The DA was lodged with the Respondent on 18 July 2023.

3. The DA as lodged sought development consent for four (4) unit multi dwelling (detached) housing comprising of the retention of the existing dwelling and the construction of three (3) detached units with associated five (5) lot Community Title Subdivision (Proposed Development) at 158 Nicholson Street, Goulburn, formally identified as Lot 1 of Deposited Plan 1289543 (the site).

4. The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 26 September 2024. The Applicant filed a Statement of Facts and Contentions in Reply with the Court on 29 November 2024.

5. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 2 December 2024. I presided over the conciliation conference, which commenced with an onsite view. 4 submitters attended the on-site view, and 3 made submissions to the Court.

6. The s 34 conciliation conference was adjourned a number of times before a s 34 agreement was reached by the parties.

7. The signed s 34 agreement and Annexure A (Conditions of Consent) were filed with the Court on 5 March 2025. The amended plans (the amended DA) were filed with the Court on 6 March 2025. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites.

8. The parties advise that all contentions raised by the Respondent in the SOFAC have been resolved by the preparation of the amended plans and documents and the agreed conditions of consent.

9. In particular, the parties advise that the changes in the amended DA include:

1. New 1m wide path along the Nicholson Street frontage. The path will be constructed partially on the subject property and partially within the road reserve;

2. Revised unit floor plan design to allow bin storage for each unit to be accessible to pathway;

3. Increase width of car spaces for Units 1 to 3 to assist in vehicle manoeuvrability from the Lane;

4. Redesign of landscaping within the front setback of Units 1 to 3 and to the corner intersection of the two lanes at the rear;

5. Adjustment of the subdivision plan to facilitate greater separation between the dwelling on units 1 to 3. The lots associated with units 2 and 3 have been increased in size, whilst the lot associated with the existing dwelling has been decreased in size; and

6. Greater clarification as to driveway design and stormwater management works.

10. 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. 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.

11. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

12. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Prerequisites

Environmental Planning and Assessment Act 1979

Owner’s consent

13. TLCDN Pty Ltd is the owner of the Property. Written Owner’s consent to the lodging of the DA has been provided to the Respondent.

Community Participation (Sch 1, Div 2, s 7(1) of the EPA Act)

14. The parties advise that the DA was publicly notified for 14 days between 4 August 2023 and 23 August 2023; and

1. During the initial notification period the Respondent received four (4) submissions objecting to the DA. The issues raised are summarised at paragraph 17 of the SOFAC;

2. Under the Goulburn Mulwaree Council Community Participation Plan 2024, development for residential accommodation where three or more additional dwellings are constructed must be notified for a minimum timeframe of 21 days;

3. Accordingly, the DA was renotified and readvertised for a period of 21 days between 23 September 2024 and 15 October 2024; and

4. During the second notification period, the Respondent received three (3) submissions objecting to the DA raising similar issues to that which were raised in the submissions received in response to the initial notification period.

15. The parties further advised that the amended DA was not renotified as the Respondent formed the view that the amendments to the development did not increase its environmental impacts.

Conditions

16. The s 34 agreement includes the imposition of conditions which are imposed under subs 4.17(1) of the EPA Act.

Integrated Development

17. The DA is not integrated development.

Goulburn Mulwaree Local Environmental Plan 2009

18. The Goulburn Mulwaree Local Environmental Plan 2009 (the LEP) applies to the site and to the proposed development. Under the LEP provisions, the site is zoned R1 General Residential pursuant to cl 2.2 of the LEP; and

1. Clause 2.3 of the LEP permits multi-dwelling housing with consent in the R1 General Residential zone;

2. The parties advise that the proposed development is consistent with the zone objectives introducing a new typology of residential accommodation into the locality, which will cater for a range of future residents; and

3. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

19. Clause 4.1 of the LEP relates to minimum subdivision lot size. As the proposed subdivision is under the Community Land Developments Act 2021, cl 4.1 of the LEP does not apply.

20. Clause 4.1AA of the LEP provides for minimum subdivision lot size for community title schemes. However, as the site is zoned R1 General Residential, cl 4.1AA does not apply and LEP does not impose a minimum development standard on subdivision lot size.

21. Clause 4.3 of the LEP relates to Height of Buildings (HoB). The HoB map in the LEP does not provide a maximum building height for the site.

22. Clause 4.4 of the LEP relates to Floor Space Ratio (FSR). The FSR map in the LEP does not provide a maximum FSR for the site.

23. Clause 5.10 of the LEP relates to Heritage Conservation. The parties advise that the site does not contain a heritage item, is not within a heritage conservation area and is not within immediate proximity to a heritage item or conservation area.

24. Clause 5.21 of the LEP relates to Flood Planning: The parties advise that the subject property is not within a flood planning area.

25. Clause 7.1A of the LEP relates to Earthworks: The proposed development involves the filling of land immediately below the dwellings and earthworks associated with the upgrade of the unnamed laneway. The parties advise that the extent of earthworks is minor and that the proposed development complies with the requirements of cl 7.1A.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

26. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) applies to the site. The aims of Ch 2 of the Biodiversity SEPP are to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation.

27. The parties advise that the proposed development does not require the removal of protected vegetation.

28. Chapter 6 of the Biodiversity SEPP applies as the site is within the Sydney Drinking Water Catchment. In relation to s.6.6(1) considerations, the parties advise that their position is that:

1. subject to the installation and maintenance of sediment controls during building works, the development will have a neutral effect on the quality of water entering a waterway;

2. the development will not have an adverse impact on water flow in a natural waterbody;

3. there will be no discernible increase to stormwater runoff that would adversely affect downstream land;

4. the development incorporates on-site stormwater retention via rainwater tanks and a raingarden;

5. the development will have no impact on the level and quality of the water table;

6. cumulative environmental impacts from the development on the regulated catchment are negligible; and

7. the development makes adequate provision to protect the quality and quantity of groundwater.

29. On 4 February 2025, the Respondent referred the Amended DA to WaterNSW in respect of Chapter 6 of the Biodiversity SEPP.

30. The parties advise that WaterNSW provided concurrence under Chapter 6 of the Biodiversity SEPP. The requirements of WaterNSW are imposed on the development by condition 4 and the conditions in Section I of the conditions of consent for the purpose of ensuring the development has a neutral or beneficial effect on water quality.

31. The parties further advised that they are satisfied that the requirements of ss 6.6-6.14 and s 6.61 of the Biodiversity SEPP have been met by the proposed development.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

32. The provisions of the State Environmental Planning Policy (Building and Sustainability Index:BASIX) 2004 apply due to the savings provision contained at s 4.2(1)(a) of State Environmental Planning Policy (Sustainable Buildings) 2022.

33. The parties advise that:

1. The DA relates to ‘BASIX affected development’ and as such the Regulations require the submission of a BASIX Certificate; and

2. The DA is accompanied by BASIX Certificate No. 1223528S_02, No. 1238543S_02 and No. 1238550S_02, the requirements of which are imposed on the development by condition 23 of the conditions of consent.

State Environmental Planning Policy (Resilience and Hazards) 2021

34. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.

35. The parties advise that the subject property is not within an investigation area and does not involve a change of use into an activity identified in Table 1 of the Contaminated Land Guidelines. The history of the usage of the property is known, being confined to residential land uses, and as such a preliminary site investigation is not required.

State Environmental Planning Policy (Transport and Infrastructure) 2021

36. The proposed development involves works within 5 metres of an overhead electricity power line. As such s.2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 applies.

37. The parties advise that the electricity supply authority was given notice of the proposal and provided comments regarding potential safety risks. The requirements of the electricity supply authority, Essential Energy, are imposed on the development by condition 38 of the conditions of consent.

Goulburn Mulwaree Development Control Plan 2009

38. The parties advise that all of the matters contained in s 4.15 of the EPA Act (including the Goulburn Mulwaree Development Control Plan 2009) which are of relevance to the proposed development have been taken into consideration, and the amended DA is acceptable subject to conditions.

Conclusion

39. Having considered the advice of the parties provided above at [11]-[38], I am satisfied that:

1. the Applicant’s amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied;

3. approval of the proposed development is in the public interest.

40. Further, 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. Accordingly, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

41. The Court notes:

1. that Goulburn Mulwaree Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application No. DA/0008/2324 made on 4 March 2025 to rely on the documents specified below:

1. Architectural Plans prepared by SC Design Solutions, dated 15 December 2024 and drawing Nos. A00, A01-E to A14-E.

2. Subdivision Plan prepared by Premise, dated 21 February 2025, amendment 1 and reference No, 24807.

3. Stormwater Engineering Plans prepared by Premise, revision C, dated 19 December 2024:

1. Drawing No DA001 – Cover Sheet, Site locality and Schedule of Drawings

2. Drawing No. DA002 - General Notes & Legend

3. Drawing No. DA040 - Existing Site Layout And Survey Control Plan

4. Drawing No. DA050 - Proposed Subdivision Layout Plan

5. Drawing No. DA200 - Civil & Drainage Works Plan - Civil & Drainage Works Plan (Rev B)

6. Drawing No. DA600 - Catchment Layout Plan

7. Drawing No. DA630 – Stormwater Basin Plan & Details

8. Drawing No. DA670 - Stormwater Longitudinal Sections

9. Drawing No. DA680 - Stormwater Calculations 10% AEP Minor Storm

10. Drawing No. DA681 - Stormwater Calculations 1% AEP Major Storm

11. Drawing No. DA900 – Erosion and Sediment Control Plan

12. Drawing No. DA950 – Erosion and Sediment Control Figures

4. Civil Engineering Plans for Roadworks prepared by Premises, revision G, dated 11 February 2025:

1. Drawing No. C001 - Cover Sheet & Site Locality

2. Drawing No.C002 - Schedule of Drawings

3. Drawing No.C003 - General Notes, Abbreviations and Acronyms

4. Drawing No. C010 - Existing Site & Survey Control Plan

5. Drawing No. C030 - Erosion and Sediment Control Plan

6. Drawing No.C031 - Erosion and Sediment Control Notes and Details

7. Drawing No. C160 - Cut and Fill Plan

8. Drawing No. C200 - Plan of Civil Works - Sheet 1 of 2

9. Drawing No. C201 - Plan of Civil Works - Sheet 2 of 2

10. Drawing No. C220 - Road Longitudinal Section - Road 01

11. Drawing No. C221 - Road Longitudinal Section - Road 02

12. Drawing No. C222 - Longitudinal Section – Driveway 01-05

13. Drawing No.C223 - Road Longitudinal Sections - Proposed Driveway - Sheet 1 of 2

14. Drawing No.C224 - Road Longitudinal Sections - Proposed Driveway - Sheet 2 of 2

15. Drawing No.C230 - Pavement Plan and Details

16. Drawing No.C240 - Typical Road Cross Section Details

17. Drawing No.C250 - Road Cross Sections - Road 01 - Sheet 1 of 2

18. Drawing No. C251 - Road Cross Sections - Road 01 - Sheet 2 of 2

19. Drawing No.C252 - Road Cross Sections - Road 02

20. Drawing No.C280 - Intersection, Kerb Return Plan & Longitudinal section

21. Drawing No. C500 - Driveway Plan

22. Drawing No. C690 - Pit Details - Sheet 1 of 2

23. Drawing No. C691 - Pit Details - Sheet 2 of 2

24. Drawing No.C940 - Stormwater Catchment Plan

25. Drawing No.C941 – Localised Catchment Plan

26. Drawing No. C999 - Safety in Design Report

42. The Court orders that:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment to the development application, in the agreed amount of $5000, such amount to be paid within 28 days of the date of this order.

2. The appeal is upheld.

3. Development consent is granted to development application No. DA/0008/2324 four (4) unit multi dwelling (detached) housing comprising of the retention of the existing dwelling and the construction of three (3) detached units with associated five (5) lot Community Title Subdivision at Lot 1 of Deposited Plan 1289543, being 158 Nicholson Street, Goulburn subject to the conditions of consent in Annexure A.

G Kullen

Acting Commissioner of the Court

**********

Annexure A.376 KB.pdf

Decision last updated: 13 May 2025