132Cordeaux Pty Ltd v Wollongong City Council [2026] NSWLEC 1394

Catchwords: DEVELOPMENT APPEAL – subdivision – Aboriginal heritage – Illawarra escarpment – zone objectives Land and Environment Court New South Wales Medium Neutral Citation: 132Cordeaux Pty Ltd v Wollongong City Council [2026] NSWLEC 1394 Hearing dates: 30, 31 October, 19, 22 December 2025 and submissions received 16 February 2026 and 11 March 2026. Date of orders: 30 June 2026 Decision date: 30 June 2026 Jurisdiction: Class 1 Before: Porter C Decision: The Court orders: (1) The appeal is upheld. (2) Development Consent is granted to Development Application No 2023/769 (as amended) for subdivision to create 43 residential lots plus one residue lot comprised of residential land and environmental lands including that subject to a Biobanking Agreement, construction of public and access roads, tree removal, associated infrastructure and earthworks, at 132 Staff Road and 64 Tamarind Drive, Cordeaux Heights subject to the conditions in Annexure A. (3) The exhibits are returned except 1, A and F. Catchwords: DEVELOPMENT APPEAL – subdivision – Aboriginal heritage – Illawarra escarpment – zone objectives Legislation Cited: Biodiversity Conservation Act 2016 (NSW), ss 6.12, 7.2, 7.13 Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.17, 8.7 Land and Environmental Court Act 1979 (NSW), s 39 National Parks and Wildlife Act 1974 (NSW), ss 84, 90 Protection of the Environment Operations Act 1997 (NSW), Sch 1 Roads Act 1993 (NSW), s 38B Rural Fires Act 1997 (NSW), s 100B Water Management Act 2000 (NSW), s 91 Environmental Planning and Assessment Regulation 2021 (NSW), ss 37, 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 4.9 State Environmental Planning Policy (Planning Systems) 2021, Sch 6, s 3 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48 Wollongong Local Environmental Plan 2009, cll 2.3, 2.6, 4.1, 5.10, 7.1, 7.2, 7.4, 7.6, 7.8 Cases Cited: BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Jeffrey v Canterbury Bankstown Council (2021) 250 LGERA 340; [2021] NSWLEC 73 Texts Cited: Australia ICOMOS, Burra Charter (2013) Heritage NSW , Aboriginal Cultural Heritage Consultation Requirements for Proponents (2010) Illawarra Escarpment Strategic Management Plan 2015 Office of Environment and Heritage, Department of Premier and Cabinet , Guide to Investigating, Assessing and Reporting on Aboriginal Cultural Heritage in New South Wales (April 2011) Wollongong Development Control Plan 2009 (NSW) Category: Principal judgment Parties: 132Cordeaux Pty Ltd (Applicant) Wollongong City Council (Respondent) Representation: Counsel: J Reid (Applicant) A Hemmings (Respondent) Solicitors: Lindsay Taylor Lawyers (Applicant) Bartier Perry Lawyers (Respondent) File Number(s): 2024/161665 Publication restriction: Nil JUDGMENT COMMISSIONER: This appeal is abou t whether the proposed earthworks related to a residential subdivision has detrimental impact s to the ridgeline as it relates to Mount Kembla and the Illawarra Escarpment, and adverse impacts to Aboriginal heritage significance of place and objects . The Applicant, 132Cordeaux Pty Ltd ( 132 Corde aux ) has appealed pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against a refusal of DA-2023/769 by Wollongong City Council (Council) at 132 Staff Road and 64 Tamarind Drive , Cordeaux Heights . During the hearing, l eave was granted to amend the DA pursuant to s 39 of the Land and Environment Court Act 1979 (NSW) and ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW). The DA seeks development consent for : Stage 2 A: Subdivision of 3 7 allotments, three super lots and one residue environmental management allotment. Construction of access roads including a continuation of Staff Road connecting from s tage 1 (related to a different consent), five access roads and five battle-axe accessways (including two connecting to existing fire trails) . Earthworks, tree removal, vegetation management and infrastructure delivery. Stage 2B : Following the closure of the paper roads, c onsolidation of part-lots and subdivision of the super lots to create three additional allotments . A total of 43 residential lots and one residue lot comprising of residential and environmental lands is proposed . The proposed lots range in size between 999m 2 and 4999m 2 , corresponding with the respective minimum lot sizes. The proposal is Integrated Development under the EPA Act and triggers the following approvals , which have been granted by the respective authorities : Section 91 of the Water Management Act 2000 (NSW) , as works are proposed within 40m of a watercourse . Section 100B of the Rural Fires Act 1997 (NSW) as the site is bush fire prone land. Section 90 of the National Parks and Wildlife Act 1974 (NSW) , due to the proposed impacts on Aboriginal objects. With consideration of the evidence and submissions, I find that the proposal, in its final form , should be granted development consent subject to agreed conditions of consent. The site and context The subject site comprise s 132 Staff Road, Cordeaux Heights and 64 Tamarind Drive , Cordeaux Heights (Lot 1000 in DP 1315222 ) (site). The site is the residue portion of Lot 1 in DP534849 which also included the Stage 1 subdivision that was subject to a different DA. The site is shown below, from Council ’ s Further Amended Statement of Facts and Contentions (Figure 1) (SOFAC). The total site is approximately 52. 5 h a and approximately 21.27 h a relates to the proposed subdivision. The site includes part of the ridgeline to Mount Kembla and therefore slopes significantly across the site. There are a number of paper roads , fire trails , right of way s and easements traversing the site or located adjoining the site . A transmission easement approximately 45m wide traverses the site. As described in the SOFAC and viewed on site, the site is located on the foothills of the Illawarra Escarpment and in particular, Mount Kembla . As will be significant to the remaining issues, the site includes a significant ridgeline. 132 Cordeaux made an application pursuant to s 38B of the Roads Act 1993 (NSW) to close two paper roads which it relies on . Following public notification of the road closure , Council resolved to close the paper road s on 27 October 2025 . The site has multiple zonings , being R2 Low Density Residential, C2 Environmental Conservation , C3 Environmental Management and C4 Environmental Living under the Wollongong Local Environmental Plan 2009 (WLEP) . The hearing commenced on site and the Court heard oral submissions from four objectors . At the site view, t he parties and objectors drew the Court ’ s attention to the location of adjoining residences, locations related to Aboriginal heritage (where it was allowed to be disclosed) , land slippage, fire trails, extent of earthworks, land to be left undisturbed and an existing dwelling consent. Key Issues It is acknowledged that as a result of several amendments and further information provided since the lodgement of the appeal, t he issues have narrowed substantially . At the hearing, Council pressed that the following contentions in the SOFAC warrant refusal: Contention 3 - Consistency with the objectives of the zone. Contention 7 - Landform changes . Contention 9 – Heritage. Contention 11 – Public interest. The issues can be summarised as whether the proposed earthworks and changes to the ridgeline , including impacts to Aboriginal heritage and the Escarpment , warrant refusal. Evidence The following experts gave evidence in the appeal in the form of joint expert reports (JER) and/or oral evidence . Heritage: Alexander Beben for 13 2 Cordeaux and Joel Thompson for Council. Town p lanning and visual impacts : Luke Rollinson and Rohan Dicks on for 132 Cordeaux and Nicole Ashton for Council . Bushfire: David Peterson for 132 Cordeaux and Nicole Ashton for Council. Ecology: Lucas McKinnon for 132 Cordeaux and Jenna Andrews for Council. Engineering: Kelly MacDonald (civil engineer) and Mi k e Wilson (traffic engineer) for 132 Cordeaux and Bernard Howard (engineer) for Council. Are the extent of earthworks and the ir impacts on Aboriginal heritage and the ridgeline acceptable? Council presse d contentions 3, 7, 9 and 11, which relate to the unacceptable impacts on the Aboriginal heritage values of the site and the surrounding area , as a result of the extent of excavation and significant changes to the ridge line . The following controls and guidelines are relevant, all of which have been considered . The proposed works primarily occur in the C3 Environmental Management zone, wh ich has the following objectives: To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values. To provide for a limited range of development that does not have an adverse effect on those values. The following parts of the WLEP apply: 5.10 Heritage conservation … (2) Requirement for consent Development consent is required for any of the following — (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance)— (i) a heritage item, (ii) an Aboriginal object, (iii) a building, work, relic or tree within a heritage conservation area, (b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item, (c) disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed, (d) disturbing or excavating an Aboriginal place of heritage significance, (e) erecting a building on land— (i) on which a heritage item is located or that is within a heritage conservation area, or (ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance, (f) subdividing land— (i) on which a heritage item is located or that is within a heritage conservation area, or (ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance. … (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). … (8) Aboriginal places of heritage significance The consent authority must, before granting consent under this clause to the carrying out of development in an Aboriginal place of heritage significance— (a) consider the effect of the proposed development on the heritage significance of the place and any Aboriginal object known or reasonably likely to be located at the place by means of an adequate investigation and assessment (which may involve consideration of a heritage impact statement), and (b) notify the local Aboriginal communities, in writing or in such other manner as may be appropriate, about the application and take into consideration any response received within 28 days after the notice is sent. … 7.6 Earthworks (1) The objectives of this clause are as follows— (a) to ensure that any earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses or heritage items and features surrounding land, (b) to allow earth works of a minor nature without separate development consent. (2) Development consent is required for earthworks, unless— (a) the work is exempt development under this Plan, or (b) the consent authority is satisfied the work is of a minor nature. (3) Before granting development consent for earthworks, the consent authority must consider the following matters— (a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality, (b) the effect of the proposed development on the likely future use or redevelopment of the land, (c) the quality of the fill or of the soil to be excavated, or both, (d) the effect of the proposed development on the existing and likely amenity of adjoining properties, (e) the source of any fill material or the destination of any excavated material, (f) the likelihood of disturbing Aboriginal objects or other relics, (g) proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area. … 7.8 Illawarra Escarpment area conservation (1) The objective of this clause is to provide specific controls to protect, conserve and enhance the Illawarra Escarpment. (2) This clause applies to land shown as being within the Illawarra Escarpment area on the Illawarra Escarpment Map. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development— (a) will be located so as to minimise any adverse impact on the natural features and environment of the Illawarra Escarpment, and (b) will incorporate on the land, conservation and rehabilitation measures to enhance the Illawarra Escarpment. The Wollongong Development Control Plan 2009, including chapters B2, B6, E10 , E11 and E19 apply to the proposed development . Also relevant are the following guidelines: Guide to Investigating, Assessing and Reporting on Aboriginal Cultural Heritage in New South Wales prepared by Office of Environment and Heritage, Department of Premier and Cabinet dated 1 April 2011 (OEH Guidelines). Heritage NSW guidelines including the Aboriginal Cultural Heritage Consultation Requirements for Proponents 2010 (Consultation Guidelines 2010). Burra Charter (Australia ICOMOS 2013) Evidence The heritage experts agree that the majority of the proposed works occurs in the C3 Environmental Management zone. The experts agree that th e site is not listed as a local heritage item within the WLEP. The site is located in the vicinity of the Illawarra Escarpment Landscape Heritage Conservation Area, identified in the WLEP and listed on the State Heritage Inventory. The site is mapped as being in the Illawarra Escarpment Area (cl 7.8 of the WLEP). The experts agree that the site has special cultural values (moderate to high significance) , as are acknowledged within s 9.2 of the Aboriginal Cultural Heritage Assessment Report prepared by Austral Archaeology dated 20 December 2024 ( ACHAR ) . From par 4.5 of the Heritage JER, t he site has: Moderate a esthetic v alues . High h istoric s ignificance values . High, m oderate and l ow s cientific s ignificance values attached to three identified archaeological sites as identified in t able 9.3 of the ACHA R . Moderate to h igh s ocial and s piritual s ignificance v alues . The experts state i n the Heritage JER that they “ agree that the ACHA [R] and its corresponding recommendations to manage harm to Aboriginal cultural values have been prepared in consultation with the registered Aboriginal stakeholders for the project ” . They acknowledge that Heritage NSW have issued General Terms of Approval ( GTAs ) for the proposed development under the National Parks and Wildlife Act 1974 (NSW) ( NPW Act ) . Works relating to the Vegetation Management Plan will require a separate Aboriginal Heritage Impact Permit ( AHIP ) approval. It is agreed that Aboriginal sites CH - 2 and CH - 4 are located in the C2 zoned parts of the site, where residential development is not permitted. There are no impacts. Both experts agreed on several strategies and tonal palettes to minimise disruption of the landscaped setting by future dwellings ( which have been included in the conditions of consent) . Mr Beben , heritage expert for 132 Cordeaux gave evidence that the zoning permits land subdivision and allows a limited range of development that is consistent with the cultural values of the area. Mr Beben says that t he proposal is consistent with the objective s of the zone, as it has been informed by the : Aboriginal Cultural Heritage Assessment Report prepared by Austral Archaeology dated 20 December 2024 (ACHA R ) . Consultation Guidelines 2010 . Code of Practice for the Investigation of Aboriginal objects in NSW . OEH Guide lines . Burra Charter . The ACHA R , which included archaeological investigation s and Aboriginal stakeholder consultation, led to the identification of the Aboriginal cultural heritage values of the site, being: CH - 1 ( 52-2-4666) : an artefact scatter situated within the central ridgeline – moderate grading. CH - 2 (52-2-4667 ): a high density artefact scatter – high grading. CH - 4 ( 52 -2-4669): a low density artefact scatter – low grading. Mr Beben disagrees that the tangible and intangible values of CH - 1 are disassociated. The ACHA R has considered all of the above guidelines and undertaken a significance assessment which corresponds with the significance values of the Burra Charter . The aesthetic, historic, scien tific, social and spiritual values have been considered and the ACHA R incorporates management recommendations in consultation with Aboriginal stakeholders and Heritage NSW that consider both the tangible and intangible cultural heritage values. Mr Beben ’ s evidence is that harm to CH - 1 cannot be avoided . His evidence, as considered and assessed in the ACHA R , is that the majority of the works within the ridgeline are associated with stabilising the subsidence issues of the landform. His evidence is that t hese works are consistent with the Geotechnical Studies undertaken by SLR Australia (Geotechnical Studies) and considered by the ACHAR . The harm cannot be reduced. Mr Beben says that the impacts on the ridgeline have been assessed as having a minimal impact on the cultural values of the ridgeline and visual prominence of the Illawarra Escarpment. Mr Beben ’ s evidence is that , based on the extensive consultation with Aboriginal stakeholders and Heritage NSW and in conjunction with the stabilisation works, the proposal enables improved access to the ridgeline, and incorporates a route to M oun t Kembla and the M oun t Kembla walking tracks. Mr Beben relies on the ACHA R , which states that “ the majority of works within [the] ridgeline are associated with stabilising the subsidence issues with this landform and are therefore unable to be reduced ” (p 119 of the ACHA R and par 4.43 of the Heritage JER) . T he previous slope instability and landslide events have compromised the integrity of archaeological deposits associated with the ridgeline, which will likely continue. The extent of earthworks required is deferred to the engineering experts. The modified ridgeline will not be impacted by further instability due to the proposed works, which will also ensure that the cultural heritage is retained. Mr Beben acknowledge s that CH - 1 will be harmed and lost and that there will be impacts to the ridgeline . The recommended mitigation measure in the ACHAR , formulated with Aboriginal stakeholders and Heritage NSW , is for a Heritage Interpretation Plan to be completed to communicate Aboriginal heritage values. Mr Beben ’ s evidence is that the baseline archaeological assessment considered that the site once contained M oun t Kembla Road . Any evidence of the road would be subsurface and archaeological testing did not identify any remains of the road. Whilst most early ro ads in the Illawarra followed Aboriginal routes, t he research and consultation with Aboriginal stakeholders did not reveal any significance or connection with Aboriginal people. Mr Thompson , heritage expert for Council, gave evidence that the significant associated with the ridgeline landform and the identified Aboriginal sites have a direct and tangible link to the special cultural values of the site. They provide physical evidence of the cultural use and elevated meanings attached to the site. The special cultural values of the ridgeline are directly connect ed to Mount Kembla and associated with “ Mount Kembla (also known as Jumbulla or Djembla ) [which] is regularly referred to by local Aboriginal Community members as “ Grandfather Mountain ” and is broadly known as the Men ’ s mountain in contrast to Mount Keira ( Djeera ) which is known as a Women ’ s place ” . Mr Thompson ’ s evidence is that the disassociation of the intangible values of the site from the destruction of the ridgeline and Aboriginal site CH - 1 and substantial changes to the ridgeline is inappropri a te . The physical impacts from the excavation will alter the face of these features and significantly impact t he cultural significance and contextual position within Mount Kembla. Mr Thompson says that the maximum 6m of excavation and filling of adjacent areas up to 9m will alter the natural profile of the ridgeline and its legibility as a historic roadwa y. The only portion of the ridgeline unimpacted by the earthworks is the area around the electricity pylon. No attempt has be e n made to partially conserve the ridgeline or the Aboriginal site within it. Mr Thompson disagrees with the ACHA R ’ s assessment that the earthworks are necessary or unable to be reduced . The earthworks and stabilisation of the ridgeline are only necessary to enable the intensity of the proposed residential development . The creat ion of ready to build allotments is at the expense of the special cultural values of the site, contrary to the C3 zone objectives. An alternative design in suitable areas of the site would protect these cultural values, achieving a potentially reduced development outcome. Mr Thompson is critical that the ACHAR has not considered the traditional travel route or historic road alignment of Mount Kembla Road along the ridgeline or potential colonial era knowledge sharing or travel routes. This has potential impacts on the physical and cultural connection to the Illawarra Escarpment Heritage Conservation Area. Mr Thompson ’ s evidence details the extensive amount of studies and strategic planning work undertaken in relation to the Illawarra Escarpment and Aboriginal heritage. In relation to visual impacts, apart from the above evidence, the heritage experts deferred to the planning/urban design experts. Ms Ashton, Mr Rollinson and Mr Dickson agreed in the town planning JER and visual impacts JER that the site provides an important transition between the Cordeaux Heights urban fringe and M oun t Kembla to the west . They agree with the heritage experts about the high scenic value of the Illawarra Escarpment Landscape Area . Having undertak en an assessment of the visual impacts from five vantage points, t he experts agree that “ the final proposed landform provides for a defined ridgeline extending from the foothills of M oun t Kemb l a , and that whilst the proposed earthworks will modify a number of existing gullies, these are not sufficiently visible to adversely impact on escarpment views ” . This assessment has also included future dwellings ( which are not part of th is DA) in accordance with s 5.3, ch B6 of the WDCP . T he experts agree the indicative future dwellings will be located under the ridge level and mostly concealed by existing vegetation and landform. It was agreed that from the various vantage points, the “ ridgeline is clearly visible with the Illawarra Escarpment being visible in the background … the dwellings … do not detract from the scenic qualities of the Escarpment ” . The view loss was agreed to be negligible and minor. Mr Rollinson for 132 Cordeaux gave evidence that the proposed earthworks are balanced and optimise the geotechnical considerations for the site. The extent of ear thworks is symptomatic of the unstable topographic profile and need to restore the landform. The provisions of subsoil drainage will assist with soil stability and drainage patterns. Ms Ashton for Council gave evidence that the extent of earthworks was excessive and that the proposal prioritised these extensive earthworks. Her evidence is that a reduced yield and alternative lot layout could better respond to the natural and cultural features of the site. In cross examination, it was agreed that there were no adverse town planning related amenity impacts, except those relating to heritage. The engineers agree in the Engineering JER that the amended plans resolve all of the engineering related contentions and that “ [t] he proposed development earthworks are consistent with the geotechnical recommendations for the site ” . Council’s submissions Ms Hemmings for Council submits that the proposal would be inconsistent with the objectives of the C3 zone due to its adverse effect on the cultural or aesthetic values of the site. The proposal will have a significant impact on the ridgeline, a known Aboriginal site with associated archaeology of moderate Aboriginal cultur al significance and linked with cultural significance of a m en ’ s place and travel route of social significance. The proposal will cause the complete destruction of Aboriginal site CH-1 which is of moderate Aboriginal cultural significance. The proposal will cause significant landform changes to the ridgeline which has significant cultural heritage features and values. It was submitted that the site has special culture values , special ecological and cultural values relating to the Illawarra Escarpment Area, aesthetic value and heritage values and is identified as natural resource biodiversity land , which is impacted by the proposal based on the evidence of the heritage experts and town planners. It was submitted that the Applicant ’ s expert accepted that there would be adverse impacts on the cultural heritage values of the site contrary to the zone objectives. Ms Hemmings submit ted that the GTAs issued by Heritage NSW does not in and of itself mean that the impacts are acceptable. The GTAs address the NPW Act , not the EPA Act , including s 4.15(1)(b). The Applicant ’ s evidence that the proposal is consistent with the objectives on the basis of the ACHAR and OEH G uidelines do not, of themselves, achieve consistency. It was submitted that the ACHAR does not conform with the OEH Guidelines. As Mr Beben conceded in cross examination, alternatives of the proposal were not directly discussed or expressed in the ACHAR, contrary to the OEH Guidelines. The only element avoided is the electricity pylon . The proposal does not attempt to partially conserve the ridgeline or the Aboriginal site within it. The proposal is contrary to Art 3.1 of the Burra Charter , adopted by the WDCP and the ACHAR, that requires a cautious approach “ of changing as much as necessary but as little as possible ” . The ACHAR asserts that the ridgeline works a re associated with stabilising the subsidence . Despite the request from Heritage NSW , a further assessment or consultation in relation to intangible values was not undertaken and a small addition was made to the ACHAR. The assertions made that the harm to Aboriginal cultural heritage values regarding CH-1 and the intangible values associated with the ridgeline i s unavoidable is not adequate. The failure to identify and assess alternatives to avoid or minimise harm is material. Council submitted that there was no part of the planning proposal that considered Aboriginal cultural heritage . The ridgeline portion of the site was not rezoned but was subject to a change to the minimum lot size. The consideration of the extent of geotechnical works and excavation was left to the DA stage and not considered in any detail as part of the planning proposal. Council submitted that the site i s a n Aboriginal place of heritage significance and that cl 5.10 of the WLEP applies , as agreed by the experts and consistent with the definition in the WLEP . This position is informed by identification of the site in The Aboriginal Heritage Study: Illawarra Escarpment , prepared by AMBS in September 2008, which informed the Illawarra Escarpment Strategic Management Plan (2015) (2015 Management Plan) . T he site was identified as a place of cultural heritage significance . T he whole Escarpment has special Aboriginal Cultural V a lues and the E scarpment ridges have Aboriginal values to be preserved or enhanced. The 2015 Management Plan was endorsed by Council in July 2015. The site falls within the definition of Aboriginal place of heritage significance. Applicant’s submissions Ms Reid for the Applicant outlined in the submissions the history of the si te. Investigations for rezoning of areas including Cordeaux Heights commenced around 1994. A number of actions and studies occurred between 1994 and 2012 to assess the suitability of rezoning the land and t he process ultimately culminated in a site-specific rezoning . The submissions detail a number of studies, exhibitions, master planning and the ultimate planning propo sal. In 2014, on the basis of nine technical studies, the Farmborough Heights to Mount Kembla Concept Plan prepared by GHD (Concept Plan) was develop ed for the purpose of assessing future applications for residential subdivision and other matters. The Concept Plan was endorsed by the Director General of Planning and Infrastructure on 20 March 20 1 4. Relevantly, it was submitted that the Concept Plan recognised urban development pressure in the area and the potential for development to be located on the interface with the Illawarra Escarpment within the context of active conservation. The proposed subdivision pattern is relatively consistent with the C oncept P lan. It was submitted that s tage 1 includ es a biobanking site that would be activated on completion of the s tage 2 works. Portions of this site have been zoned C2 , which form part of the avoidance and minimise strategies identified in the Biodiversity Development Assessment Report prepared by Ecoplanning dated 19 May 2025 ( BDAR ) (including a formal Vegetation Management Plan) , and are a public benefit . Ms Reid submitted that the Illawarra Escarpment Strategic Management Plan 2015 (Escarpment Plan) replaced the previous plans and incorporated a number of studies relating to heritage, land use, Aboriginal heritage and strategic planning. T he Escarpment Plan relied on a land use strategy, which was stated as being consistent with the Concept Plan. Implementation of these strategic studies and plans was to occur via an Applicant initiated planning proposal. A planning proposal was lodged and parts of the site were rezoned . Heritage NSW ‘ strongly ’ supported the proposal and advised that more detailed Aboriginal Cultural Heritage Assessment can be undertaken at the DA stage. It was submitted that some assessment of Aboriginal cultural heritage had occurred at the planning proposal stage. Ms Reid submitted that the 2010 Consultation Guidelines recognise that (reproduced below ): • Aboriginal people should have the right to maintain their culture. • Aboriginal people should have the right to participate in matters that may affect their heritage directly. • Aboriginal people are the primary determinants of the cultural significance of their heritage. Ms Reid submitted that these principles were agreed to by Mr Thompson , who agreed that the right parties had been notified, as far as he was aware. It was submitted that the experts agree that the ACHAR and recommendations to manage harm to Aboriginal cultural values have been prepared in consultation with the registered Aboriginal stakeholders for the project . This is an important lens to assess the issues raised about the proposal ’ s impact on Aboriginal cultural heritage . Significant weight should be given to the consultation with the releva nt Aboriginal stakeholders about the proposal and the ACHAR , where there was no opposition. It was submitted that Council did not identify in the SOFAC that cl 5.10 of the WLEP applies and that the site is not shown on the related Heritage Map. Section 84 of the NPW Act does not declare the site as an Aboriginal place of heritage significance. Contrary to Council ’ s submissions, the experts do not identify the site as an Aboriginal place of heritage significance . Notwithstanding, the experts have considered cl 5.10(8) of the WLEP and no submissions from Aboriginal communities were received. Ms Reid agreed that there is a separate but dual role , in that an approval has been granted under s 90 of the NPW Act and that the requirements of the EPA Act need to be considered . It was submitted that Heritage NSW ’ s GTAs demonstrate a careful and balanced approach to competing community interests . The fundamental matters considered by Heritage NSW are of assistance in these proceedings and consider similar cultural impacts. The GTAs are consistent with the objectives of the zone and include mitigation measures including reburial of the CH-1 scatter a nd a heritage interpretation plan to communicate Aboriginal cultural heritage values. The heritage interpretation plan formed part of the recommendations from Aboriginal stakeholders. CH-1 will be impacted , however there is no requirement in the WLEP or EPA Act that the avoidance of impacts must be demonstrated. The proposed management is through reburial in an area of the site set aside for conservation closer to CH-2 and CH-4 (subject to a final AHIP approval). Management of these values in this manner was not opposed by Aboriginal sta keholders. They are consistent with the objectives of the zone and significan ce of the object. Ms Reid submit ted that , when considered against the entirety of the site , including the avoidance of CH-2 and CH-4 and the heritage implementation plan, that alternatives or avoidance were considered by Mr Beben. The heritage implementation plan, in consultation with Aboriginal stakeholders, will provide easy access to the ridge in a manner they will deem as appropriate . The tangible and intangible values have been considered and the impacts to place and significance are acceptable. Ms Reid submitted that the proposed earthworks are necessary to stabilise the site, which has been historically subject to land slip . The submissions rely on the Geotechnical Report prepared by SLR dated September 2023 and Technical Memorandum prepared by SLR dated 20 December 2024 ( Geotechnical Reports) and agreement from the engineering experts that the works are consistent with the geotechnical recommendations for the site . The experts did not provide any evidence that the earthworks or other engineering methods were excessive or over engineered. The submissions in relation to the zone objections included that a positive finding of consistency with the zone objectives is not required, that the second objective in the C3 zone is declaratory and limits the range of development , and that the values of the site have been carefully considered through the lengthy rezoning process and evidence of the experts. Consideration and findings I firstly accept that the planning proposal did not consider in detail potential impacts to Aboriginal heritage or the extent of excavation. As submitted by Council and in evidence from Ms Ashton, the planning proposal considered the landslip impacts and other heritage impacts. The post exhibition report for the planning proposal states that geotechnical matters will be considered at the DA stage. All of that detail has been provided in the final form of the DA that is now before the Court. The remaining contentions are interrelated. I prefer Mr Beben ’ s evidence , Ms Reid ’ s submissions and the evidence of the engineering and visual impacts experts that the impacts from the proposal are acceptable for the following reasons . A s agreed by the heritage experts, the proposal will result in impacts on Aboriginal cultural heritage through harm to CH - 1 and its relocation , as well as modif ication of the ridgeline . Council raised concerns , with consideration of the Burra Charter and OEH Guidelines, that harm should firstly be avoided , and if it cannot, then alternatives may be considered. The ACHAR does not consider alternatives on the basis of the G eotechnical R eports . On the evidence in the ACHAR about the proposal , Aboriginal stakeholders have been consulted and raised no issues about the proposal. Section 2.4 of the ACHAR details that engagement with registered Aboriginal stakeholders commenced in November 2022. The c ultural significance of M ount Kembla and a primary walking track through the site w ere identified early . The ridgeline formation and the likelihood of the ridge as a traditional travel route between M ount Kembla and the coast were identified, in additional to other cultural values of the site. The draft ACHAR was provided on 30 May 2023, where the report was acknowledged by Aboriginal stakeholders . Recommendations including a heritage implementation plan and interpretation of the m en ’ s travel route along the ridgeline were included , informed by Aboriginal stakeholders. As submitted by Ms Reid , I a gree that Aboriginal people are to be the primary source of information about the value of their heritage and how this is best protected and conserved (2010 Consultation Guidelines) . In circumstances where there has been extensive consultation with Aboriginal stakeholders who have not raised concerns about the proposed changes to the ridgeline and harm to CH-1 , I prefer and have give n weight to the 2010 Consultation Guidelines over the requirements in the OEH Guidelines to consider alternatives. I also find that the extent of earthworks is unavoidable, as detailed further below. To the extent that it was raised that consultation with Aboriginal stakeholders may not have included the extent of earthworks to the ridgeline (both cut and fill) , I am unable to accept the well-meaning proposition on the evidence . The heritage experts agreed that Aboriginal stakeholders were consulted. The ACHAR details that close consultation occurred including discussion of the ridgeline. T he recommendations of the stakeholders have been included , including the development of a heritage interpretation plan which will contain information that Aboriginal people as the knowledge holders consider is appropriate . Given the extent of engagement , I accept that Aboriginal stakeholders have informed themselves accordingly. I find that adequate consultation occurred regarding the proposal and ACHAR. Whilst I agree that the Heritage NSW ’ s GTAs relating to removal of Aboriginal site CH-1 is not determinative as set out at s 7.1 (4) , ch E10 of the WDCP, it is reasonable to consider and give some weight to their assessment and approval to remove CH - 1, given that the key issue is a core function of Heritage NSW . There are extensive earthworks proposed and I have carefully considered the genuine concerns of Council ’ s heritage and planning experts about the impacts th ey say will occur to Aboriginal object CH - 1, the ridgeline and the other tangible and intangible cultural and scenic impacts raised. However, despite this issue being in contention, there is no evidence in the Engineering JER that the extent of proposed earthworks and related activities is excessive, unreasonable or unwarranted. I accept the agreed evidence of the engineers that the ‘ proposed earthworks are consistent with the geotechnical recommendations for the site ’ . The Geotechnical Report detail s the areas of major slope instability , landslide affected areas and ongoing landslide activity (pp 9- 13 ). This is undisputed in the evidence. Accordingly and with a view that residential development is envisaged for the site, I accept that the extent of earthworks is reasonably necessary to support the proposal. On the evidence of the engineers and the evidence of Mr Beben, I have considered the matters in cl 7.6(3), particularly 7.6(3) (a), (b) and (f) and find that the works are acceptable as they do not disturb two Aboriginal objects and the harm to CH-1 is reasonably unavoidable . On the basis of the Geotechnical Reports and E ngineering JER, I find that the proposed earthworks are reasonably necessary to stabilise the site and facilitate the future redevelopment of the land. I find that t he ridgeline and its cultural significance as a m en ’ s place and travel route is retained, notwithstanding the excavation. This is clear from the evidence in the Planning JER and V isual I mpacts A ssessment JER w here all experts agreed that the ridgeline was still clearly visible and prominent in the Illawarra Escarpment. The Statement of Environmental Effects prepared by MMJ Town Planning dated May 2025 (SEE) included a photomontage of the visual impacts from the vantage points, certified by Mr Dickson, which demonstrate s that the change s to the ridgeline will not be perceptible from most vantage points. I accept that the landform changes will be more noticeable within the site, however I agree with the evidence of all of the visual impact experts that the distinctive physical and aesthetic features will be retained, including the relationship of the ridgeline with M ount Kembla and by extension, the contextual relationship with M ount Keira. Adopting Mr Beben ’ s evidence and having also considered the Statement of Significance for the Illawarra Escarpment , I am also satisfied that the disputed impacts to the Illawarra Escarpment through the cut and fill earthworks are reasonably necessary and have been located to minimise adverse impacts on the natural features and environment of the Illawarra Escarpment . I accept Mr Beben ’ s evidence and the evidence of the visual impacts experts that t he scenic and cultural impacts from the works, as well as from future dwellings, have been minimised . T he important aspects of the ridgeline and its contextual relationship with the land and Mt Kembla have been retained and increased access by the public will be available as a result of the works (which is not opposed by any of the Aboriginal consultation). Importantly, the lost cultural values from the modified ridgeline and relocation of CH - 1 will be interpreted as sought by the Aboriginal stakeholders through the Heritage Interpretation Plan. I accept Mr Beben ’ s evidence that the t angible and intangible cultural values have been carefully considered by the proposal through the ACHAR . The proposed harm to CH - 1 and the ridgeline caused by the proposal has been accepted by Aboriginal stakeholders . Placing considerable weight on the consultation with Aboriginal stakeholders and incorporation of their feedback into the ACHAR, I prefer Mr Beben ’ s evidence that the harm has been minimised . On the basis of the necessary extent of earthworks and physical retention of a modified ridgeline, I accept that impacts on the ridgeline will have a minimal impact on the cultural values of the ridgeline and visual prominence of the Illawarra Escarpment and the Aboriginal heritage significance . Aspects of the proposal that minimise impacts include the visual retention of the ridgeline, stabilisation works to minimise further landslip, improved access to the ridgeline, incorporation of a route to M ount Kembla and its walking tracks, and the Heritage Interpretation Plan informed by the areas of cultural significance identified by Aboriginal stakeholders relating to traditional walking routes . On the evidence of Mr Beben, I am also satisfied that the ACHAR has adequately sought to investigate M ount Kembla Road and did not find any remnants of it. To the extent that there was dispute about whether cl 5.10 of the WLEP applies, I accept that it does on the basis of Ms Hemmings submissions. For the reasons articulated above and with consideration of the Heritage JER, ACHAR and OEH assessment, I have considered the effects of the proposal on the heritage significance of the place and the known Aboriginal objects and find them to be acceptable. I am satisfied that the ACHAR has identified objects and places of Aboriginal cultural significance , avoided impacts to them and implemented mitigation measures informed by Aboriginal stakeholders for unavoidable harm . W ith an overall view of all the proposed works , I find that the proposal and its conservation measures relating to Aboriginal heritage and biodiversity management (discussed further below) will enhance the Illawarra Escarpment. I have had regard to the objectives of all the relevant zonings pursuant to cl 2.3 of the WLEP and find that the proposal is consistent with them. In having regard to the objectives in the C 3 zone , which is in dispute, I am satisfied that the objectives are not offended for the following reasons. As jointly submitted , a permissible form of deve lopment in a zone would expect to be granted, subject to consideration of its environmental impacts : BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [118] and Jeffrey v Canterbury Bankstown Council (2021) 250 LGERA 340 ; [2021] NSWLEC 73 at [61] and [63] . On the basis of the agreed visual impacts evidence, there are no impacts on the aesthetics values . I accept Mr Beben ’ s evidence that the special cultural , and as far as they relate to his expertise, aesthetic values have been protected and in a manner consistent with the anticipated use of the site through its zoning. Some of the environmental impact s are part of managing the site and its values, acknowledging that landslides have been occurring on the site and impact the ridgeline. Part of the proposal includes protecting, managing and restoring areas with these values . Of particular relevance are the recommendations in the ACHAR and Heritage NSW GTAs , which provide that there will be easy access to the ridge and a public interpretation of the site ’ s significance through a h eritage i nterpretation p lan to be approved by Aboriginal s takeholders and Heritage NSW. I find that there are no adverse effect s on the values of the zone objectives. To the extent that the aims of the WLEP are relevant, for the same reasons as I have detailed above , I find that the aims of the WLEP are not offended. For all of the reasons above, I find that the amended DA has addressed the remaining contentions pressed by Council , satisfactorily addressed the identified planning controls (particularly cll 5.10, 7.6 and 7.8 of the WLEP a n d chapter s B2, B6 , E10 , E19 of the WDCP ) , that the proposal is suitable for the site and that the likely impacts of the development are reasonable. Community submissions The DA was publicly notified on a number of occasions , including 18 February 2025 to 20 March 2025 and another notification ended 30 July 2025 . F our objectors addressed the Court in person at the site view . The concerns raised in the written and oral submissions have been considered pursuant to s 4.15 (d) and (e) of the EPA Act and are addressed below. I am satisfied that the objections raised have been addressed by the amended DA and do not warrant refusal of the application. Inconsistent information The DA has been amended over the course of the appeal process. Any inconsistencies have been dealt with by the amendments or conditions of consent at Annexure A. Relocation of an easement for a right of carriageway 132 Cordeaux relied on a contact of sale, which includes clauses about th is right of carriage way . The extent of the contract was tendered as a confidential exhibit (Ex 4) . In seeing the terms of the contract of sale , Council did not press this as an issue. I also accept that the right of carriageway has been appropriately considered and dealt with in the contract of sale . Use of Firetrail 2 and Firetrail 3 T h e proposed development does not propose access by F iretrail 2 at Kallara Link , or Firetrail 3 at Taminga Crest . The proposed subdivision will be provided with signage that identifies the road s for emergency access only (condition 15) and gates provided on the subject site will res trict general access to both Killara Link and Taminga Crest from the site (condition 145) . Construction access is not permitted along either firetrail . Emergency access is a requirement from NSW Rural Fire Service and included in the conditions to benefit both the subject site and adjoining properties. Flooding concerns relating to existing flooding of Firetrail 2 and an increase in flooding impacts from increased impervious areas. The DA is accompanied by a Drainage Line Assessment Report prepared by GHD dated 14 March 2019, Civil Engineering Drawings prepared by Maker Engineering dated 27 October 2025 (Civil Drawings) , Water Cycle Management Strategy prepared by Maker Engineering dated 14 September 2023 (Water Strategy) and a Pipe Culvert Structural Assessment prepared by INGLIS dated 13 October 2025 (Culvert Assessment) . At this stage , there are little to no impervious works pr oposed. Based on the Civil Drawings and Water Strategy , t he proposed stormwater and flooding relat ed works will manage the proposed earthworks and roads , and will not increase impact s to adjoining properties . Some increases in flooding or water velocity have been contained on site and mitigated by removal/relocation of portions of the streams and easements . Catchment of water from the roads is facilitated through the approved (and under construction) stage 1 works. Whilst the stormwater and flooding cannot be drained to the stream within the riparian corridor as sought by some objections, the stormwater structures to the north of the site as shown in the Civil Drawings will control and manage stormwater impacts. There are no increased impacts from flooding or stormwater to F iretrail 2 or adjoining properties from the proposal. The Culvert Assessment relates to a structural assessment of the culvert for vehicles used by NSW Fire and Rescue Service (being a maximum of 28 tonnes). The assessment confirms that the culvert can structurally withstand the load from these vehicles. C ondition 94 of the conditions of consent requires that there are no adverse effects to adjoining properties from flooding or stormwater run-off. Sewer capacity, connections and disruptions 132 Cordeaux has demonstrated that there is adequate sewer capacity for the proposal, subject to the upgrades that Sydney Water have committed to undertake in order to provide increased capacity during flood events. I accept that the information contained within Ex E, including correspondence from Sydney Water and the Hydr aulic Modelling of Wastewater Infrastructure prepared by MISYY Consulting dated October 2021 provide that there is adequate capacity in the sewer network as a result of the planned upgrades. The email of 29 October 2025 confirms that Sydney Water will deliver the necessary upgrades within five years. Details regarding any planned works to the sewer network would be notified at that time. A standard application to Sydney Water to confirm connection and service will be required by the proposal as part of conditions of consent. Traffic and parking impacts – both during construction and ongoing Condition 41 requires that all gradients of ramps and driveways must be constructed in accordance with Australian Standard AS 2890.1 and Council ’ s standard drawings. No traffic or parking concerns have been raised by Council in the final contentions. Having considered the proposal and the Traffic Impact Assessment prepared by Amber Organisation dated September 2023 (TIA), I accept t hat the proposed traffic generation will have minimal impacts to the road network and that the minor increase will not disrupt the good level of service of the road network . The car parking to be provided is generally in accordance with the WDCP, subject to a future DA for the dwellings. In addition to the general details in the Construction Environment Management Plan prepared by Maker ENG , a number of conditions of consent have been included to provide the detailed traffic management measure s to Council or the certifier prior to construction. I accept that t he traffic and parking impacts will be adequately managed during and post construction. In relation to traffic during construction, a number of conditions of consent at Annexure A require the preparation of a detailed site, pedestrian and traffic management plan. In relation to impacts from traffic from s tage 1 , this DA cannot remedy these. Land stability – both during construction and ongoing The proposal is supported by detailed Geotechnical Reports that include recommendations to improve and stabilise the land on site . There are a number of conditions at Annexure A to enforce these recommendations as well as provide further detailed information in a final Geotechnical Report . The conditions of consent also require physical supervision of the site by a Geotechnical Engineer during construction and Geotechnical Inspection Certification. The proposed stabilisation works seek to remedy the landslide issues currently described in the objections (as related to the site). I find that the proposal has adequately addressed land stability issues. Lack of visual impact assessment A detail ed visual impacts assessment was undertaken by experts from both parties. I accept the agreed evidence of the experts that the visual impacts from the proposal will be minimal and that future dwellings will be located within a landscaped character as envisaged by the planning controls. I have previously made findings in relation to the visual impacts relating to cultural significance of the site and ridgeline from [ 58 ] . Environmental impacts (biodiversity area , water quality, discharge of sediment) The Civil Drawings and Water Strategy demonstrate that the proposed earthworks and road works provide effe ctive management of flooding and stormwater, including some reliance on the stage 1 works under construction. The proposal is accompanied by a B iodiversity Development Assessment Report prepared by Ecoplanning dated 19 May 2025 (BDAR). The BDAR has been considered by the experts in the Ecology Joint Expert Report (Ecology JER). Having considered the Biodiversity Conservation Act 2016 (NSW) ( BC Act) and the planning controls that detail the environmental qualities of the site, t he e cology experts agree that the proposal has been sited to avoid impacts to the biodiversity of the site, subject to a revised Vegetation Management Plan (VMP ). A condition of consent has been imposed to require the revised VMP as detailed by the ecology experts , including restoration of the eastern watercourse in the riparian corridor . Some vegetation will be lost, how ever the vast majority of the site and its environmental values ha ve been retained under a Biobanking Agreement and the VMP, as a result of the strategic planning undertaken for the site. I accept the experts agreement that the proposal will increase the biodiversity qualities of the site through implementation of the BDAR. The BC Act is also considered at [ 98 ]. It is noted that the future dwellings do not form part of the DA. Amenity impacts during construction It is acknowledged that there will be some impacts during construction . A Construction Environment Management Plan prepared by Maker Engineering Pty Ltd dated 3 June 2023 accompanies the DA and provides adequate concept details relating to the management of impacts of construction. As is usual practice , an extensive number of conditions for detailed construction management is required through conditions of consent. This includes a detailed Site Management, Pedestrian and Traffic Management Plan required to be submitted to Council prior to works commencing for approval , which will regulate vehicles, trucks, access points, storage of materials, traffic control measures and the like . A construction noise and vibration management assessment from sensitive receive rs is required, and a management plan is required to be submitted to Council or the certifying authority. A dust and air quality management plan is required, including real time monitoring and monthly reporting to Council . Other conditions relating to amenity include sediment control measures to control runoff from the site, tree protection, and exclusion of vibratory rollers within 100m of residential sites . In relation to the type of fill to be used and whether coal wash will be used, condition 86 regulates that “ [a] ll fill material imported to the site must be Virgin Excavated Natural Material as defined in Schedule 1 of the Protection of the Environment Operations Act 1997 or a material identified as being subject to resource recover exemption by the NSW EPA ” . The type of fill material is not permitted to be contaminated and must comply with the requirements of the EPA . The conditions of consent regulate the hours of construction to 7am-5pm Monday to Saturday exclud ing public holidays (condition 69). The hours are consistent with industry practise. The construction methods proposed are therefore suitable. Cut and fill works within the transmission easement. As shown in the civil engineering drawings, t he extent of cut and fill works in the transmission easement are minimal . Inconsistency with the zone objectives I have addressed the zone objectives at [ 68 ]. Preconditions to the grant of consent Having considered the applicable preconditions to granting consent, I am satisfied that the proposal meets the controls as detailed below and that there is power to grant consent . I have been greatly assisted by both parties through detailed submissions and a detailed SOFAC. I note that the DA is a regionally significant development pursuant to Sch 6, s 3 of State Environmental Planning Policy (Planning Systems) 2021 for Council related development over $5 million as the site includes Council land and the cost of works exceeds the threshold. The Applicant is the registered proprietor of the land and has provided owner ’ s consent. Council has provided owner ’ s consent relating to the two paper roads and also undertaken the process to close the roads in accordance with the Roads Act 1993 (NSW) . Integrated Development The proposal is i ntegrated d evelopment in accordance with the following : Section 100B of the Rural Fires Act 1997 (NSW) (Rural Fires Act), Section 91 of the Water Management Act 2000 (NSW ) , and Section 90 of the NPW Act. GTAs have been received from all agencies. I have considered the GTAs and find that the proposal is consistent with them . The GTAs have been included as conditions of consent. Biodiversity Act 2016 (NSW) The BC Act applies as the development may likely significantly affect threatened species as defined under s 7.2 . The DA has been accompanied by a BDAR as required by s 7.13(2). I accept the evidence of the ecology experts that the BDAR, with an amended VMA in relation to the agreed restoration of the eastern watercourse in the riparian corridor , satisfies the provisions . I accept the evidence that despite the loss of some vegetation, the proposal will ultimately improve biodiversity outcomes through the amended VMP and includes an expanded restoration of native vegetation and the watercourse . I find that the BDAR and DA satisfies the requirements of s 6.12 of the BC Act. State Environmental Planning Policy (Biodiversity and Conservation) 2021 Chapter 4 Koala Habitat Protection of the BC SEPP applies to the site. There is no applicable Koala Plan of Management. The BDAR has undertaken field surveys and considered k oala records within 5km over the past 20 years. The BDAR find s that there is no evidence of k oalas on the site and that the development will have no impact or a low impact on k oalas and k oala habitat. I am satisfied that the provisions of s 4.9 have been met. State Environmental Planning Policy (Resilience and Hazards) 2021 Section 4.6 applies to the DA. The DA was supported by a Detailed Site Investigation prepared by Environment & Natural Resource Solutions dated 21 September 2023 and an Interim Advice prepared by Phreatic Consulting dated 27 September 2023 (contamination reports). The c on tamination reports conclude that the site is suitable for the proposed development subject to implementation of their recommendations. The recommendations have been included in the conditions of consent at Annexure A. I am satisfied that s 4.6 of SEPP RH has been met. State Environmental Planning Policy (Transport and Infrastructure) 2021 Section 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 applies as electrical infrastructure is located on the site. The DA was referred to Endeavour Energy who did not object to the proposal and provided conditions of consent. These have been included in Annexure A . I am satisfied that the provisions have been met. WLEP 2009 Cl ause 2.6 permits subdivisio n in all zones of the site . The proposed works for road s are permissible in the C3 and C4 zones. Works related to the VMP are within the C2 zone are permitted. No physical works are proposed in the R2 zoned portion of the site. I have previously set out that I have had regard to the objectives of all of the relevant zones and find that the proposal does not o ffend them on the basis of the evidence and reasons set out in the SEE . Clause 4.1 provides various minimum lot sizes across the site. Pursuant to cl 4.1A , the site proposes an ‘ original lot ’ comprising R2 and C2 zoned land and is eligible for the minimum lot sizes permitted in cl 4.1A(3). Accordingly, the minimum lot sizes of 999m 2 and 4999m 2 comply with the respective provisions of cl 4.1. Clause 5.10 applies on the basis of the Aboriginal significance of the site. For the reasons I have previously detailed, I have considered the provisions and find that they have been met on the basis of the evidence of Mr Beben and the ACHAR. Clause 7.1 public utility infrastructure applies to the DA. On the basis of the SEE and Ex E, I am satisfied that adequate arrangements have been or will be provided relating to the supply of water, supply of electricity and the disposal and management of sewer . Appropriate conditions of consent have been included. Clause 7.2 applies as the site is mapped on the natural resource sensitivity biodiversity map. These parts of the site generally align with the C2 zoned parts of the site where subdivision is not proposed. On th is basis as well as the evidence of the ecology experts and the agreed measures within the VMP that will improve biodiversity outcomes on the site , I am satisfied that the provisions have been met. Clause 7.4 applies as the site is mapped as riparian land and identified as category 1 and category 2. I am satisfied that the provisions have been met on the basis of the ecology evidence and VMP that considers the riparian zones and incorporates management measures for the rehabilitation and restoration of them. The GTAs from DPE have also assessed the impacts on riparian land and included conditions to protect the streams. Clause 7.6 earthworks has been considered with the main issues and consideration of the community objections. In addition, I have considered all of the provisions and find that they are met on the basis of the SEE, Geotechnical Reports, Civil Plans and ACHAR. Clause 7.8 Illawarra Escarpment area conservation applies . On the basis of my previous findings, I am satisfied that that the clause has been met in relation to impacts on the natural features and environment of the Illawarra Escarpment. I accept that conservation and rehabilitation measures are incorporated into the proposal on the basis of the ecology evidence and the VMP. Conditions of consent The parties were ultimately able to reach agreement on the conditions of consent to be imposed. I accept that they are all within power under s 4.17 of the EPA Act. The agreed recommendations made by the experts have been incorporated into the conditions, as have the agency referrals and GTAs. Conclusion Having carefully considered the evidence, I am satisfied that the proposal has responded to and managed its impacts on the important values of the Illawarra Escarpment and the Aboriginal heritage significance of the site. Having also considered the issues raised by submissions and the relevant planning controls, I conclude that development consent should be granted. Orders The Court orders that: The appeal is upheld. Development Consent is granted to Development Application No 2023/769 (as amended) for subdivision to create 43 residential lots plus one residue lot comprised of residential land and environmental lands including that subject to a Biobanking Agreement, construction of public and access roads, tree removal, associated infrastructure and earthworks, at 132 Staff Road and 64 Tamarind Drive, Cordeaux Heights subject to the conditions in Annexure A. The exhibits are returned except 1, A and F. S Porter Commissioner of the Court Annexure A (1.69 MB, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2026