Australia, June 24 -- New South Wales Land and Environment Court issued text of the following judgement on May 23:

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the deemed refusal of development application DA 2024/712. The development application seeks consent for alterations and additions to an existing dual occupancy to introduce rooftop terraces and first floor balconies at 1 Surfers Parade, Thirroul (Lot 1 in DP 204068).

2. The Court arranged a conciliation conference between the parties on 6 May 2025, pursuant to s 34AA of the Land and Environment Court 1979 (LEC Act). I presided over the conciliation conference. At the conciliation conference the parties reached agreement on the basis of amended plans and materials. The decision agreed upon is for the grant of development consent to the development application, as amended, subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. This agreement meets the first condition to the exercise of the power and obligation of a Commissioner to dispose of the proceedings in accordance with the decision of the parties (this being the test applied by s 34(3) of the LEC Act): see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 ("McMillan") at [51].

3. As the presiding Commissioner, I am satisfied that the second condition is met, that being that the decision is one that the Court can make in the proper exercise of its functions (McMillan at [51]). I form this state of satisfaction on the basis that:

1) The development application is lodged with the consent of the owners of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2) The development application was notified in accordance with the Wollongong Community Participation Plan 2023 between 2 October and 16 October 2024. Five submissions were received. The amended development application was renotified from 14 to 28 April 2025. A further five submissions were received. At the commencement of the proceedings on site the Court was addressed by members of the public who explained their concerns with the development. I am satisfied that the issues raised in the submissions have been considered in the determination of the development application by either the amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

3) State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the site pursuant to s 4.4 and Sch 2 of SEPP BC. The proposed development does not include clearing of native vegetation. The parties agree and I accept that there is no potential impact on Koala habitat. I am satisfied that development consent can be granted in accordance with Pt 4.2 of SEPP BC.

4) Pursuant to s 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the consent authority must not grant consent to development unless it has considered whether the land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. The development application is accompanied by a Statement of Environmental Effects (SEE) which details the historical residential use of the site. There is no suggestion of a historic use of the site for a purpose that would have contaminated the land. Further, there are no immediate site conditions which would require remediation of the site. The amended development application seeks to continue the residential use of the site. The parties agree and I accept that the provisions of s 4.6 of SEPP RH are satisfied.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196f51c81611a8718803293f)

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