MAAS Group Properties Miriam Pty Limited v Dubbo Regional Council [2026] NSWLEC 1560

Catchwords: DEVELOPMENT APPEAL — residential subdivision in urban release area — conciliation conference — agreement between the parties — orders Land and Environment Court New South Wales Medium Neutral Citation: MAAS Group Properties Miriam Pty Limited v Dubbo Regional Council [2026] NSWLEC 1560 Hearing dates: Conciliation conference held on 21 August 2026 Date of orders: 28 August 2026 Decision date: 28 August 2026 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as a result of the amendment to the development application in the agreed amount of $12,000 (ex GST) within 21 days of the date of these orders. (2) The appeal is upheld. (3) Development consent is granted to D2023-26 for the subdivision of Lot 10 in DP1119436 into 60 lots, comprising 59 residential allotments and 1 residue lot and associated road and drainage works at 2R Old Dubbo Road, Dubbo NSW 2830, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPEAL — residential subdivision in urban release area — conciliation conference — agreement between the parties — orders Legislation Cited: Biodiversity Conservation Act 2016 (NSW), Pt 7, s 7.7 Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 4.46, 8.7, 8.15 Land and Environment Court Act 1979 (NSW), s 34 National Parks and Wildlife Act 1974 (NSW) Rural Fires Act 1997 (NSW), s 100B Dubbo Regional Local Environmental Plan 2022 , cll 2.6, 4.1, 4.2D, 5.10, 5.21, 6.1, 6.2, 6.3, 7.1, 7.2, 7.3, 7.5 Environmental Planning and Assessment Regulation 2021 (NSW), s 38 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) , ss 2.98, 2.100, 2.122, 2.138 Category: Principal judgment Parties: MAAS Group Properties Miriam Pty Limited ABN 18 653 559 730 (Applicant) Dubbo Regional Council (Respondent) Representation: Counsel: L Camenzuli (Solicitor) (Applicant) A Foley (Solicitor) (Respondent) Solicitors: Corrs Chambers Westgarth (Applicant) Marsdens Law Group (Respondent) File Number(s): 2025/418361 Publication restriction: No 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 refusal of Development Consent No. D2023-26 for a 60-lot subdivision comprising 59 residential allotments and 1 residue lot with associated earthworks, construction of internal roads, and civil infrastructure ( Proposed Development ) at 2R Old Dubbo Road, Dubbo and is legally described as Lot 10 DP 1119436 (the Site). The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW ) (LEC Act) between the parties, which has been held on 2 1 August 2026 . I presided over the conciliation conference. The parties had participated in an earlier conciliation conference on 7 April 2026 and they have now reached an agreement under s 34(3) of the LEC Act on the basis of the amended plans and documents set out at [ 34 ] . The a mend ments address the contentions in the Statement of Facts and Contentions ( “ SOFAC ” ) filed by the Res pondent on 17 December 2025 in relation to flooding, Aboriginal cultural heritage, contamination, civil engineering, traffic engineering and town planning, including: development of the Site above the Council ’ s flood planning level; a revised road layout; an increase of all footpath widths to 1.5m; clear delineation of a 5m “ no work ” zone around the Aboriginal site in the northern corner of the Site; removal of a fire trail along the western edge of the residential development area; introduction of a swale at the southern end of the residential area, adjacent to the railway corridor, to direct stormwater flows; revision to the footprint and profile of the compensatory flood storage area, so that it increases flood storage in a 1% AEP event, provides a smooth transition to the natural surface and avoids the “ basin ” structure proposed in the Development Application ( “ DA ” ) ; additional clearance between Council ’ s sewer pump station on the Site and proposed residential development; connection to Huckel Street; additional upgrade works on Macquarie Street; land dedication to Council; and remediation of an existing asbestos pipe. At the conciliation conference, 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 and granting development consent to the DA subject to conditions. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties ’ decision if the parties ’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. The parties ’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA . The Respondent notified the DA from 17 February to 22 March 2023 and two objecting submissions were received. An objector made oral submissions at the commencement of the Conciliation Conference expressing concerns of the impact of the Proposed Development on her property including access to her property and flood affectation . The parties considered all submissions in reaching their agreement. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of Dubbo Regional Local Environmental Plan 2022 (DRLEP), Biodiversity Conservation Act 2016 (NSW) (BC Act), State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) and the Rural Fires Act 1997 (NSW) (RF Act) . The parties explained how the jurisdictional prerequisites have been satisfied in an agreed statement of jurisdictional prerequisites provided to the Court. The Site is owned by the Applicant. The S ite is located is located within an Urban Release Area ("URA") within the south-east of the Dubbo urban fring e (South-East URA) and is situated within the R2 Low Density Residential and C3 Environmental Management zones pursuant to the provisions of the DRLEP. The subdivision footprint is located within the R2 zone. Clause 6.3(2) of the DRLEP requires a development control plan that provides for the matters specified in cl 6.3(3) of the DRLEP be prepared for land in an URA before development consent can be granted for development. A draft, site-specific Development Control Plan ( “ DCP ” ) was prepared by the Applicant and has been exhibited in satisfaction of cl 6.3(2) of the DRLEP . Subdivision is permissible with consent pursuant to cl 2.6 of DRLEP and consent is sought for earthworks pursuant to cl 7.2 of the DRLEP. Pursuant to the Lot Size Map referred to in cl 4.1 of DRLEP , the Proposed Development complies with the minimum subdivision lot size of 600 m 2 development standard for the residential lots within the R2 zone . The land zoned as C3 and forming the residue Lot 39 is subject to a 100 hectare ( ha ) minimum lot size development standard pursuant to cl 4.1 of the DRLEP , h owever, the creation of an undersized lot in the circumstances of this case is permissible pursuant to cl 4.2D of the DRLEP because Lot 39 will contain all of the land zoned as C3 on the Site , each of the other resulting lots in the subdivision meets the minimum lot size, and no development consent is sought or granted for the erection of a dwelling house on Lot 39 . Whilst the S ite is identified as being a heritage item being Miriam Homestead (Item 190), th e Respondent clarifies in the SOFAC that this is an error within the DRLEP. Clause 5.10 of DRLEP remains relevant because six Aboriginal sites are recorded in or close to the Site, of which one is outside the P roposed D evelopment footprint and can be avoided whereas t he remaining sites cannot be avoided. T he Applicant relies on an Aboriginal Cultural Heritage Assessment Report prepared by AREA Environmental & Heritage Consultants ( ACHAR ) filed with the Class 1 Application and following f urther consultation with Registered Aboriginal Parties undertaken in respect of the amendments to the Proposed Development an updated ACHAR has been prepared and provided to the Court . Council is satisfied on the basis of the updated ACHAR that the P roposed D evelopment meets the requirements in cl 5.10 of the D RLEP . The S ite is within the flood planning area and a portion of the Site is mapped as flood prone land . Clause 5.21 (2) of DRLEP provides as follows: Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development— (a) is compatible with the flood function and behaviour on the land, and (b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and (c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and (d) incorporates appropriate measures to manage risk to life in the event of a flood, and (e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses. The Applicant relies on a Flood Assessment dated March 2026 together with a letter dated 28 April 2026 and updated flood maps prepared by Martens and Associated Pty Ltd. These documents include an assessment against the terms of cl 5.21(2) of the DRLEP and concludes that “ t he hydraulic modelling results show that the p roposed d evelopment will not cause material offsite impacts and will therefore not increase the risk to people or property . The proposed development is also largely flood free in the 1% AEP (with and without climate change) and is therefore compatible with the S ite flood function and behaviour . ” Clause 6.1 of DRLEP 2022 contains requirements relating to the availability of public utility infrastructure and provides that development consent for the subdivision of land in an urban release area must not be granted unless the consent authority has obtained the concurrence of the Planning Secretary. On 14 December 2012 , the Department of Planning (as it was then known) identified that satisfactory arrangement s are in place for the provision of State public infrastructure in the locality of the Site . Pursuant to cl 6.2 of the D RLEP , d evelopment consent must not be granted for development on land in an urban release area unless the consent authority is satisfied that : the public utility infrastructure essential for the development is available ; or adequate arrangements have been made to ensure the infrastructure will be available when required . The S tatement of E nvironmental E ffects prepared by MAAS Group Properties dated June 2026 (SEE) confirms that a ll necessary public infrastructure is to be made available to the proposed lots, utilising the existing and approved infrastructure available in the area . Relevantly, upgrade works to Macquarie Street are included in the Proposed Development . The S ite is identified as containing biodiversity pursuant to the Terrestrial Biodiversity Map referred to in cl 7.1 of the DRLEP. The P roposed D evelopment includes the clearing of 0.81ha of Plant Community Type ( PCT) 201 associated with the Threatened Ecological Community (TEC) “ Fuzzy Box Woodland on alluvial Soils of the South Western Slopes, Darling Riverine Plains and Brigalow Belt South Bioregions", where it is listed as an Endangered Ecological Community (EEC) under the BC Act . A s such , ecosystem credits will be required to be retired as part of any development consent. The clearing exceeds the biodiversity offsets threshold because it involves clearing in excess of 0.25ha of vegetation and is likely to significantly affect threatened species for the purposes of Pt 7 of the BC Act. The Applicant relies on a Biodiversity Development Assessment Report ( BDAR ) prepared by AREA Environmental & Heritage Consultants dated 30 July 2026 , in accordance with s 7.7 of the BC Act, to satisfy the terms of cl 7.1 of the D R LEP and the BC Act . Council agrees that the ecosystem credits identified in the Condition 6 ( Before the issue of a subdivision works certificate ) must be retired . The BDAR also undertakes the requisite Serious and Irreversible Impact Assessment . P art of the S ite is adjacent to the Macquarie River , being land that is within 40 metres of the bank of an identified waterway : cl 7.3(2) , DRLEP . No works are proposed within this part of the Site therefore the Court is satisfied that the development is designed, sited and managed to avoid potential adverse environmental impacts . The S ite is identified as being affected by groundwater vulnerability on the Natural Resource - Groundwater Vulnerability Map referred to in cl 7.5 of the DRLEP. The Applicant relies on a Soil and Groundwater Salinity Study prepared by Barnson Pty Ltd dated 22 June 2026 . Appropriate conditions of consent have been agreed to require the development to be undertaken in accordance with the recommendations of th at Study. The P roposed D evelopment is Integrated Development within the meaning of s 4.46 of the EPA Act as it requires the following approvals: Aboriginal heritage impact permit (AHIP) under the National Parks and Wildlife Act 1974 (NSW) ; Bush fire safety authority under s 100B of the RF Act. Heritage NSW issued G eneral T erms of A pproval (GTA) for the Proposed D evelopment on 24 July 2026 and the agreed conditions require the GTAs to be complied with, which include the requirement to obtain an AHIP before any works that would disturb an Aboriginal object are carried out (Condition 2 ( General conditions )). The NSW Rural Fire Service issued GTA s and a B ush F ire S afety A uthority on 4 April 2023 , subject to conditions , which have been incorporated into the conditions at conditions 22 to 26 ( Before issue of a subdivision certificate ). The Applicant relies on a Preliminary Contamination Investigation prepared by Envirowest Consulting Pty Ltd filed with the Class 1 Application. The Preliminary Contamination Investigation concluded that no contamination was identified, and that the Site is suitable for residential land use. The parties agree that there is an old stormwater pipe that traverses the Site that is likely to contain asbestos and t he conditions require the pipe to be removed within the residential subdivision footprint and for at least 20 metres into the residue Lot 39 (Condition 7 ( Before issue of a subdivision works certificate )). Accordingly, the terms of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 have been satisfied . Finally, in relation to the provisions of the Transport and Infrastructure SEPP , a lthough the P roposed D evelopment is adjacent to a rail corridor, s 2.98 of the Transport Infrastructure SEPP is not applicable because the development: is unlikely to have an adverse effect on rail safety; does not involve any of the activities listed in s ub s 2.98(b) and (c); and is not located within 5 metres of an exposed overhead electricity power line that is used for the purpose of railways or rail infrastructure facilities. To satisfy the terms of s 2.100 of the Transport and Infrastructure SEPP, the Applicant relies on a Rail Noise Constraints Assessment prepared by Muller Acoustic Consulting Pty Ltd filed with the Class 1 Application. O n the basis of this assessment, the P roposed D evelopment is not likely to be adversely affected by rail noise and vibration . The P roposed D evelopment is not subject to s 2.122 of the Transport and Infrastructure SEPP because, whilst it involves development specified in Column 1 of the Table to Schedule 3 of the Transport and Infrastructure SEPP (being subdivision of land), the development is not of the relevant scale to be classified as traffic-generating development , that is it does not exceed the 200-lot threshold specified in the Schedule . Also, although t he P roposed D evelopment will have direct vehicular access to Macquarie Street, the proposed intersection is not located within 90 metres of a connecting classified road. The P roposed D evelopment requires stormwater management works, which are permissible with consent pursuant to s 2.138 of the Transport and Infrastructure SEPP . 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 th e LEC Act. I adopt the reasons given by the parties as set out in this judgment. 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. Notations: The Court notes that the Respondent has approved, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) , the amendment of the DA in accordance with the amended plans and documentation referred to in the following table: Tab Document Date 1. Statement of Environmental Effects prepared by MAAS Group Properties June 2026 2. Subdivision Plan prepared by Groundswell Engineers (250209-SK004-01, Rev G) 21 August 2026 3. Civil Engineering Drawings prepared by Groundswell Engineers (250209-DA-000-01, Rev 2/4/5) 24 March 2026 and 28 April 2026 4. Sketch Plan, Proposed CHR Design prepared by Groundswell Engineers (250209-SK-006-01, Rev C) 19 June 2026 5. Sketch Plan, Preliminary Road Narrowing (Huckel Street) prepared by Groundswell Engineers (250209-SK-007-01, Rev A) 15 June 2026 6. Aboriginal Cultural Heritage Assessment Report prepared by AREA Environmental & Heritage Consultants 6 July 2026 7. Biodiversity Development Assessment Report prepared by AREA Environmental & Heritage Consultants 30 July 2026 8. a) Flood Assessment; b) Additional Flood Information Following s34 Mediation Conference; and c) Flood Maps, Existing and Proposed Conditions, prepared by Martens & Associates 25 March 2026 28 April 2026 24 June 2026 9. Soil and Groundwater Salinity Study prepared by Barnson Pty Ltd 22 June 2026 10. Offer to enter into Planning Agreement prepared by the Applicant 13 August 2026 11. General Terms of Approval issued by Heritage NSW 24 July 2026 12. Draft Miriam Hill Development Control Plan: Part of 2R Old Dubbo Road, Dubbo Undated 13. Letter from Department of Planning and Infrastructure to the Respondent attaching satisfactory arrangements certification for urban release areas in South East Dubbo 14 December 2012 Orders: The Court orders: The Applicant is to pay the Respondent ’ s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as a result of the amendment to the de velopment application in the agreed amount of $ 12,000 (ex GST) within 21 days of the date of these orders. The appeal is upheld. Development consent is granted to D2023-26 for the subdivision of Lot 10 in DP1119436 into 60 lots, comprising 59 residential allotments and 1 residue lot and associated road and drainage works at 2R Old Dubbo Road, Dubbo NSW 2830 , subject to the conditions of consent at Annexure A. E Espinosa Commissioner of the Court ********** Annexure A.1.23 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: 28 August 2026