Australia, Aug. 16 -- New South Wales Land and Environment Court issued text of the following judgement on July 16:

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Vigor Master Pty Ltd (the Applicant) against the refusal of their development application DA177/2024. The development application, as amended, seeks consent for alterations and additions and change of use from a dual occupancy to a detached dwelling, including internal and external reconfiguration, installation of a lift, and associated site works. The development is proposed at 26 Milson Road Cremorne Point (Lot 1 DP 723861).

2. The Court arranged a conciliation conference under s 34AA(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 7 July 2025. At the conciliation conference the parties reached an agreement based on an amended development application. The parties' agreement is for the grant of consent to the application, as amended, subject to the conditions in Annexure A.

3. As the presiding Commissioner, I am satisfied that the decision is one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). The purpose of this test is to determine whether any jurisdictional impediments that preclude the making of orders in accordance with the parties agreed resolution: see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]. I form this state of satisfaction on the basis that:

1) The application has been made by Vigor Master Pty Ltd, with the consent of the owner of the Site to which the application relates, Linksquare Enterprises Pty Ltd, satisfying s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2) The development application was notified publicly from 13 to 27 September 2024. One objection was received in relation to the development application. Between 9 and 21 January 2025, the amended plans were notified, and two (2) submissions were received. I am satisfied that the submissions have been considered in the determination of the development application by either amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

3) Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) precludes the granting of development consent unless the consent authority has considered whether the land is contaminated. The Respondent and the Applicant agree, and I accept, that the site has a long history of residential purposes and has no known records of contaminating activity being conducted on the site. This history is detailed in the Statement of Environmental Effects (SEE). I find that s 4.6(1) of SEPP RH is satisfied.

4) Pursuant to Ch 2 of SEPP RH the site is mapped as being within the 'Coastal Environment Area', the 'Coastal Use Area'. The site is also mapped as a Coastal Wetland. The effect of the exclusion of land within the Foreshores and Waterways Area at ss 2.10(3) and 2.11(3) of SEPP RH is that the remaining parts of ss 2.10 and 2.11 of SEPP RH do not apply to the development application.

5) The amended development application provides an updated BASIX Certificate as required pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021. Section 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP BASIX) requires the consent authority to be satisfied that the embodied emissions attributable to the development have been quantified. The parties agree, and I accept that, the sum of embodied emissions from all materials proposed has been entered into the online BASIX tool and the total embodied emissions for the development have been calculated. I am satisfied that the embodied energy report forms part of the online BASIX tool of which the BASIX certificate is part.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/198073f08c9b1f35013dcaa8)

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