Background
Captcha No 5 Pty Ltd lodged Development Application DA24/1235 on 24 April 2024 seeking consent for a 31-lot Torrens Title subdivision, including bulk earthworks, roads, drainage and utilities construction, across four parcels of land on Bulwer Road, Lytton Road and Berrima Road in Moss Vale, New South Wales. The land is zoned E4 General Industrial under the Wingecarribee Local Environmental Plan 2010. The application was integrated development because the proposed works on waterfront land required a controlled activity approval under the Water Management Act 2000 (NSW), necessitating referral to the Department of Planning and Environment – Water, which issued general terms of approval in December 2024.
After community notification — which generated one submission raising concerns about lot density near residential land, traffic, topography, amenity and noise — the Council refused the application on 19 August 2025 under delegated authority. Captcha No 5 commenced a Class 1 development appeal in the Land and Environment Court on 10 September 2025. The applicant was subsequently granted leave to amend its development application in May 2026, and an initial conciliation conference in April 2026 was terminated without resolution, listing the matter for hearing in August 2026.
Prior to the hearing, the parties reached agreement and requested a further conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW). That conference was held on 29 May 2026 before Commissioner Targett, after which the hearing was vacated. The agreed outcome was the grant of development consent to the amended application, subject to conditions.
The Court’s Holding
Commissioner Targett upheld the appeal and granted consent to DA24/1235 as amended. Under s 34(3) of the Land and Environment Court Act 1979, the Commissioner is required to dispose of proceedings in accordance with the parties’ agreed decision where that decision is one the Court could have made in the proper exercise of its functions. The Commissioner was satisfied that this threshold was met, having reviewed the jurisdictional requirements across multiple statutory frameworks.
The Commissioner confirmed satisfaction with compliance across all relevant regimes: biodiversity obligations under the Biodiversity Conservation Act 2016 (NSW) were addressed through a BDAR concluding no ecosystem credits were required; bush fire requirements under s 4.14 of the Environmental Planning and Assessment Act 1979 (NSW) were met by a Bushfire Hazard Assessment; contamination requirements under the State Environmental Planning Policy (Resilience and Hazards) 2021 were satisfied by a Remediation Action Plan and addendum; and Sydney Drinking Water Catchment obligations under the State Environmental Planning Policy (Biodiversity and Conservation) 2021 were addressed, with Water NSW concurrence obtained. The site was found not to constitute core koala habitat.
The Court noted that because the result arose from a conciliation agreement, the Commissioner did not conduct or need to conduct a merit assessment of the original points of dispute. The applicant was also ordered to pay the Council’s agreed costs of $15,000 pursuant to s 8.15(3) of the EPA Act, as previously ordered on 18 May 2026.
Key Takeaways
- A Class 1 development appeal in the Land and Environment Court can be resolved by conciliation agreement under s 34 of the Land and Environment Court Act 1979, with the Commissioner bound to give effect to the agreement once satisfied it is within the Court’s proper jurisdiction.
- For integrated development requiring controlled activity approval under the Water Management Act 2000, general terms of approval from the relevant state authority must be incorporated into conditions of consent — here, DPE Water’s terms were reflected in Condition 5.
- A biodiversity development assessment report is mandatory where proposed development will clear native vegetation exceeding the threshold in the Biodiversity Conservation Regulation 2017; the BDAR here concluded no ecosystem credits were required to offset impacts.
- Development within the Sydney Drinking Water Catchment requires concurrence from Water NSW before consent can be granted, in addition to compliance with the relevant SEPP provisions.
Why It Matters
This decision illustrates the utility of the Land and Environment Court’s conciliation conference process as a practical mechanism for resolving development disputes without a full merits hearing. Once parties reach agreement and the presiding commissioner is satisfied the agreed outcome lies within the Court’s jurisdiction, the Court must give effect to that agreement — streamlining resolution and reducing costs for both applicants and councils.
For practitioners advising on industrial subdivision proposals in New South Wales, the case provides a useful checklist of the overlapping regulatory requirements — biodiversity, bushfire, contamination, drinking water catchment, and integrated development — that must be systematically addressed before consent can lawfully issue, and demonstrates how conditions of consent can be used to carry those requirements through to implementation.