81 Bowral Pty Ltd v Wingecarribee Shire Council [2026] NSWLEC 1305

Catchwords: DEVELOPMENT APPEAL – seniors living housing – conciliation conference – agreement between the parties – orders Land and Environment Court New South Wales Medium Neutral Citation: 81 Bowral Pty Ltd v Wingecarribee Shire Council [2026] NSWLEC 1305 Hearing dates: Conciliation conference on 10 February 2026. Date of orders: 28 May 2026 Decision date: 28 May 2026 Jurisdiction: Class 1 Before: Porter C Decision: The Court orders that : (1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of the amendments to the development application, in the agreed amount of $11,500.00 within 14 days of the date these orders are made. (2 ) The appeal is upheld. (3) Development Application No. DA25/2071, as amended, for tree removal and construction of a seniors housing development comprising five independent living units with associated landscaping and site works on the land at 81 Bowral Street, Bowral is determined by the grant of consent subject to conditions contained in Annexure A. Catchwords: DEVELOPMENT APPEAL – seniors living housing – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) , ss 4.15, 8.7 , 8.15 Land and Environment Court Act 1979 (NSW) , s 34 Biodiversity Conservation Act 2016 (NSW) Biodiversity Conservation Regulation 2017 (NSW) Environmental Planning and Assessment Regulation 2021 (NSW) , ss 23 , 27, 38, 86 State Environmental Planning Policy (Housing) 2021, ss 79 , 80 81, 84, 85, 93, 95, 97 , 108, S ch 4 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2021, s 2.1 Wingecarribee Local Environmental Plan 201 0, cll 2.3 , 5.10, 7.3, 7.10 Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 Texts Cited: Seniors Housing Design Guide 2023 Wingecarribee Shire Council Notification of Development Proposals Policy 2018 Category: Principal judgment Parties: 81 Bowral Pty Ltd (Applicant) Wingecarribee Shire Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2025/328698 Publication restriction: Nil JUDGMENT COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the deemed refusal of DA 25/20 71 (DA) . T he DA seeks consent for tree removal and construction of a seniors housing development comprising of five independent living units with associated landscaping and site works on the land at 81 Bowral Street, Bowral (Lot 31 in DP533666) ( the site). The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties on 10 February 2026. I presided over the conciliation conference. As part of the conciliation conference process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the amended application and granting development consent to the amended DA subject to conditions of consent. T he parties ’ agreement was submitted to the Court on 18 May 2026. Pursuant to s 38 of the Environmental Planning and Assessment Regulation 20 21 (NSW) (EPA Reg) , the respondent has agreed to the a pplicant amending DA 25/2071 in accordance with the documents listed below: Plan Title Project No. / Drawing No. / Revision Prepared By Dated Architectural plans Cover Sheet 24012 DA00 Rev K AO Design Studio 7/04/2026 Overall Site Plan 24012 DA01 Rev M 7/04/2026 Prop. Ground Floor Site Plan 24012 DA03 Rev V 7/04/2026 Prop. First Floor Site Plan 24012 DA04 Rev R 7/04/2026 Prop. Roof Site Plan 24012 DA05 Rev R 7/04/2026 Prop. Site Analysis 24012 DA06 Rev I 7/04/2026 Prop. Demolition Plan + Site Survey Overlay 24012 DA07 Rev J 7/04/2026 Prop. Site Calculations 24012 DA08 Rev H 7/04/2026 Prop. Tree Protection Plan 24012 DA09 Rev J 7/04/2026 Prop. Arborist Sections 24012 DA10 Rev E 7/04/2026 Prop. Site Elevations Sheet 1 24012 DA13 Rev M 7/04/2026 Prop. Site Elevations Sheet 2 24012 DA14 Rev M 7/04/2026 Prop. Site Sections 24012 DA15 Rev L 7/04/2026 Prop. Dwelling 01 + 02 GF Plan 24012 DA20 Rev O 7/04/2026 Prop. Dwelling 01 + 02 FF Plan 24012 DA21 Rev O 7/04/2026 Prop. Dwelling 01 + 02 Roof Plan 24012 DA22 Rev O 7/04/2026 Prop. Dwelling 01 + 02 Clearances 24012 DA23 Rev I 7/04/2026 Prop. Dwelling 02 Clearances Details 24012 DA24 Rev I 7/04/2026 Prop. Dwelling 01 + 02 Elevations Sheet 1 24012 DA25 Rev N 7/04/2026 Prop. Dwelling 01 + 02 Elevations Sheet 2 24012 DA26 Rev N 7/04/2026 Prop. Dwelling 01 + 02 Sections 24012 DA27 Rev K 7/04/2026 Prop. Dwelling 01 + 02 Win/Door Schedule 24012 DA29 Rev M 7/04/2026 Prop. Dwelling 01 + 02 Set Out Plans 24012 DA31 Rev H 7/04/2026 Prop. Dwelling 03 – 05 GF Plan 24012 DA40 Rev N 7/04/2026 Prop. Dwelling 03 – 05 FF Plan 24012 DA41 Rev N 7/04/2026 Prop. Dwelling 03 – 05 Roof Plan 24012 DA42 Rev N 7/04/2026 Prop. Dwelling 03 + 04 Clearances 24012 DA43 Rev I 7/04/2026 Prop. Dwelling 05 Clearances 24012 DA44 Rev I 7/04/2026 Prop. Dwelling 03 – 05 Elevations Sheet 1 24012 DA46 Rev M 7/04/2026 Prop. Dwelling 03 – 05 Elevations Sheet 2 24012 DA47 Rev M 7/04/2026 Prop. Dwelling 03 – 05 Sections 24012 DA48 Rev K 7/04/2026 Prop. Dwelling 03 + 04 Win/Door Schedule 24012 DA50 Rev L 7/04/2026 Prop. Dwelling 05 Win/Door Schedule 24012 DA51 Rev L 7/04/2026 Prop. Dwelling 03 + 04 Set Out Plans 24012 DA52 Rev H 7/04/2026 Prop. Dwelling 05 Set Out Plans 24012 DA53 Rev H 7/04/2026 Prop. Shadow Diagrams 24012 DA92 Rev H 7/04/2026 Prop. Internal Daylight Study 24012 DA93 Rev H 7/04/2026 Prop. Waste Management Plan 24012 DA94 Rev H 7/04/2026 Civil Plans Concept Civil Design Title Page, Drawing List and Location Plan 218373-E00 Issue G Land Team 26/03/2026 Concept Civil Design Overall Layout Plan 218373-E01 Issue G 26/03/2026 Concept Civil Design Driveway Design Plan 218373-E02 Issue G 26/03/2026 Concept Civil Design OSD Tank/WQ Basin Design Plan 218373-E03 Issue G 26/03/2026 Concept Civil Design Dwelling 01 – 04 Plan 218373-E04 Issue G 26/03/2026 Concept Civil Design Dwelling 04 – 06 Plan 218373-E05 Issue G 26/03/2026 Concept Civil Design Sewer and Water Plan 218373-E06 Issue G 26/03/2026 Concept Civil Design Sediment and Erosion Control Plan 218373-E07 Issue G 26/03/2026 Concept Civil Design Sediment and Erosion Control Construction Details 218373-E08 Issue G 26/03/2026 Bin and Waste Management Plan 218373-E09 Issue G 26/03/2026 Concept Civil Design Earthworks Plan 218373-E10 Issue G 26/03/2026 Landscape Plans Landscape Layout 2501 L1 Nicholas Bray Landscapes 20/04/2026 Civils 2501 L2 20/04/2026 Planting Plan North 2501 L3 20/04/2026 Planting Plan South 2501 L4 20/04/2026 Plant Legend 2501 L5 20/04/2026 Existing Trees 2501 L6 20/04/2026 Construction Details 2501 L7 20/04/2026 Document Project No. / Drawing No. / Revision Prepared By Dated Vegetation Management Plan LE2074 Lodge Environmental Pty Ltd 20 April 2026 Arboricultural Impact Assessment Addendum Report Issue A Arboriculture Consultancy Australia 2 April 2026 BASIX Certificate 1790409M_02 Gradwell Consulting 7 April 2026 Waste Management Plan Rev 1 Land Team 27/03/2026 Detailed Site Contamination Investigation SES_740 Sullivan Environmental Sciences 4 December 2025 Remedial Action Plan SES_740 Sullivan Environmental Sciences 23 January 2026 Swept Path Analysis - - - Vegetation Analysis LE2074 Lodge Environmental 25 November 2025 Jurisdictional Prerequisites As part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters. 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 considering if the agreement is a decision that could be made by the Court, t h e obligation is limited to being s atisfied that there ‘ are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement ’ and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 a t [6 0 ] to [65]. I h av e carried out the required jurisdictional check : Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [202] . For the reasons set out below, 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 . Owner’s consent The applicant is the owner of the site . In addition, o wner ’ s consent was provided with the Class 1 Application as required by s 23 of the EPA Reg . Community notification and objections The Respondent notified the DA between 18 April 2025 to 18 May 2025 . 11 submissions were received during and shortly after the notification period . At the commencement of the s 34 conciliation conference, the Court heard the concerns from several objectors and benefitted from viewing areas of concern from one of the adjoining neighbours . As the parties have reached agreement, the Court is not able to further consider the merits of the DA. T he parties have advised the Court that they have considered the concerns raised in the objection s. I accept the parties ’ agreement that the amended DA does not require renotification in accordance with Council ’ s Notification of Development Proposals Policy as described at paragraph 12 of the jurisdictional statement. EPA Reg - Other A BASIX Certificate has been provided in accordance with s 27. Conditions of consent relating to seniors living development s have been included in Annexure A as required by s 86 (conditions 5 7 and 7 4 ). Biodiversity Conservation Act 2016 (NSW) and Biodiversity Conservation Regulation 2017 (NSW) I accept the parties ’ agreement that th e amended D A does not trigger any of the entrance thresholds relating to the biodiversity offset scheme and accordingly, does not require a BDAR on the basis of the information contained within the : Vegetation Analysis prepared by Lodge Environmental dated 25 November 2025. Vegetation Management Plan prepared by Lodge Environmental dated 20 April 2026 (VMP) . Arboricultural Impact Assessment Addendum prepared by Arboriculture Consultancy Australia dated 2 April 2026 (Arboricultural Report) . I accept that the VMP will also establish a management area of approximately 516m 2 to protect and maintain native vegetation on site. As detailed in the Arboricultural Report, additional trees will be retained and protected during construction as a result of amendments made to the DA. The parties agree and I accept that the relevant provisions of the Act and Regulation have been met. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) Chapter 4 Koala habitat protection applies to the subject site . The parties stipulate in the jurisdiction statement that: “ Whilst the site contains a small number of Koala use trees identified in Schedule 3 of SEPP B&C, the development is likely to have low or no impact on Koalas or Koala habitat given the limited available habitat on site and there being no direct habitat continuity with any significant areas of native vegetation in the locality . ” I accept the parties ’ agreement that the proposal is unlikely to have an impact on koala ’ s or their habitat given the lack of habitat on site, and accordingly, that s 4.9(3) is met. Chapter 6 applies to the site as it is located in the regulated catchment known as the Sydney Drinking Water Catchment. The DA was referred to WaterNSW who provided their concurrence pursuant to s 6.5 and confirmed that the proposal can achieve a neutral or beneficial effect on water quality. The conditions sought by the referral have been included in the conditions at Annexure A. I am also satisfied that the stormwater plans prepared by Land Team Issue G satisfy the other relevant provisions including effective management of stormwater on site and minimal off-site impacts as required by ss 6.6, 6.7, 6.9 , 6.10 and Part 6.5. State Environmental Planning Policy (Housing) 2021 (Housing SEPP) Chapter 3, Pt 5 Housing for seniors and people with a disability of the Housing SEPP applies to the proposal . The site is zoned R2, and Part 5 can therefore be relied on pursuant to s s 79 and 81 . None of the exclusions in s 80 apply. The parties agree and I accept that all the development standards pursuant to s s 84 , 85 , 93, 95, 97 are complied with, as detailed in the Statement of Environmental Effects prepared by Lee Environmental Planning dated April 2025 (SEE) the rest of the documentation accompanying the amended DA and the jurisdictional statement as follows: The site area is over 1,000m 2 , at 3,878 m 2 . The site ’ s frontage is over 20m at the building line , at 35.28m . The building height does not exceed 9.5m as shown on the architectural plans prepared by AO Design Studio dated 7 April 2026. The Accessibility Compliance Report prepared by Access Right dated 25 March 2025 demonstrates that the standards for independent living units within Sch 4 have been met . T he site is located within an accessible area (350m walking distance to the Bowral To w n Centre via a suitable access pathway as per s 93(4) and public transport ) and has access to the requisite facilities and services . Conditions 5 7 and 7 4 restrict occupation of the seniors living units as required. The development will be connected to a reticulated water system and sewage disposal, as currently available to the site. The SEE sets out that the Seniors Housing Design Guide have been considered and addressed. The parties set out in the jurisdictional statement that all non-discretionary development standards at s 108 are complied with as shown on the architectural plans and other documentation accompanying the class 1 application . In addition to what is covered above, the following are met as detailed in the jurisdictional statement : “108(a): The building does not exceed 9.5m in height. 108(b): Not applicable. 108(c): The proposed development has a floor space ratio of 0.29:1. 108(d): The proposed development has a landscaped area of 1,882m 2 (48.5% of site area). 108(e): repealed. 108(f): The proposed development has a deep soil zone of 46.6% of the site area. 108(g): 80% of the dwellings receive at least 2 hours of direct solar access between 9:00am and 3:00pm at mid-winter in living rooms and private open spaces. 108(h): The proposed dwellings have private open spaces in excess of 15m 2 with minimum dimensions of 3m accessible from a ground floor living area. 108(i): not applicable. 108(j): not applicable. 108(k): The proposed development provides at least 0.5 parking spaces for each bedroom as all dwellings have 3 bedrooms and 2 garage car parking spaces.” State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) Section 4.6 of SEPP RH appl ies to the site. The amended DA is accompanied by a Detailed Site Contamination Investigation (DSI) and Remedial Action Plan (RAP) both prepared by Sullivan Environmental Services dated 4 December 202 5 and 23 January 2026 respectively . The RAP concludes that the implementation of the remediation and validation measures within the RAP will render the site suitable for its proposed use. These have been included as conditions of consent. The parties agree and I accept , that the provisions of s 4.6 of SEPP RH have been satisfied . State Environmental Planning Policy (Sustainable Buildings) 2021 ( Sustainable SEPP) The Sustainable SEPP applies to the proposed development . The a mended DA is accompanied by an amended BASIX Certificate . I accept the parties ’ agreement that the provisions of the Sustainable SEPP and BASIX certificate have been met , including s 2.1(5) embodie d emissions . Wingecarribee L ocal E nvironmental Plan 2010 (WLEP) The subject site is zoned R 2 Low Density Residential . T he proposal is permissible with consent . Pursuant to cl 2.3 of the W LEP, I accept that regard has been had to the objectives of the zone. Tree removal with the DA is permissible. Clause 5.10 applies as the site is located within the Bowral Conservation Area. I accept that the parties have considered the provisions, as demonstrated by the Heritage Impact Statement prepared by Architectural Projects dated 3 April 2025. Clause 7.3 earthworks applies. The parties set out their consideration of the relevant provisions in the jurisdictional statement , as the proposed works includ ed some site levelling and footings . I accept that the parties have adequately considered the provisions and included appropriate conditions of consent at Annexure A . Clause 7.10 public utility infrastructure applies. I accept the parties ’ agreement that all relevant services are available to the site. Heads of consideration On the basis of the material accompanying the Class 1 appeal and the jurisdictional statement, I accept that the relevant matters for consideration pursuant to s 4.15(1) of the EPA Act have been adequately considered. Conclusion As the parties ’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties ’ decision. 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. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. Orders The Court orders that : Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) , the Applicant is to pay the Respondent ’ s costs thrown away as a result of the amendments to the development application, in the agreed amount of $11,500.00 within 14 days of the date these orders are made. The appeal is upheld. Development Application No. DA25/2071, as amended, for tree removal and construction of a seniors housing development comprising five independent living units with associated landscaping and site works on the land at 81 Bowral Street, Bowral is determined by the grant of consent subject to conditions contained in Annexure A. S Porter Commissioner of the Court Annexure A (929 KB, 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: 28 May 2026