BFT Property Holdings Pty Ltd v Kempsey Shire Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Kempsey Local Infrastructure Contributions Plan 2025

Category: Principal judgment

Parties: BFT Property Holdings Pty Ltd (Applicant)
Kempsey Shire Council (Respondent)

Representation: Counsel:
P Jayne (Solicitor) (Applicant)
A Rutherford (Solicitor) (Respondent)
Solicitors:
SWS Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2025/282852

Publication restriction: Nil

Judgment

1. COMMISSIONER: These proceedings, brought by BFT Property Holdings Pty Ltd (applicant) under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of Development Application No. 2501252 (DA) by Kempsey Shire Council (Council). The DA seeks consent for construction of a two-storey mixed use development, comprising a ground floor shop and residential apartment above at Lot 2 DP 600340, also known as 1 Scott Street, Crescent Head (site).

2. The Court arranged a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 27 March 2026. I presided over the conference. The parties indicated they had come to an agreement in relation to the terms of a decision in the proceedings that would be acceptable to the parties based on agreed amendments to the proposal and associated consent conditions.

3. The parties' decision involves the Court exercising the function, under s 4.16 of the EPA Act, to grant consent to the DA, as amended, subject to agreed 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. The question here is whether preconditions to the exercise of the power to grant consent are satisfied. The parties advise and I accept that relevant documentation and procedural preconditions have already been met. What has not occurred prior, and is to be addressed in this judgement, is findings relating to factual preconditions applying to the Court’s exercise of consent powers, which are otherwise upon a consent authority (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [57]-[65]). Commonly these factual preconditions include a requirement for a Court finding of satisfaction with respect to applicable provisions in environmental planning instruments.

4. The parties outlined matters of relevance through an agreed jurisdictional statement provided to the Court on 27 March 2026, explaining how they believed relevant preconditions to the exercise of consent power have or could be satisfied. Mindful of their advice, I ultimately concur with the parties’ and believe there is power available to the Court to exercise the function of granting development consent in accordance with the parties' agreement. This is contingent on certain findings which I attend to now, mindful of the advice from the parties.

Consideration of the Court’s exercise of consent powers and associated matters

Kempsey Local Environmental Plan 2013

5. The site is zoned E1 Local Centre under the Kempsey Local Environmental Plan 2013 (KLEP). Council advises that it has had regard to the zone objectives. It is agreed that the proposal (comprising commercial premises and shop top housing) is permissible with consent within this zone. The application proposes demolition works, permissible with consent under cl 2.7. I accept the advice of the parties that the proposal does not breach any development standards. A condition of consent is proposed which imposes a monetary contribution of $2,324.83 calculated in accordance with the Kempsey Local Infrastructure Contributions Plan 2025. I accept that this satisfied the requirements of cl 6.2. While no further jurisdictional findings are required in relation to KLEP, the parties' jurisdictional statement indicates how Council has considered all other relevant matters.

State Environmental Planning Policy (Resilience and Hazards) 2021

6. Sections 2.10 and 2.11 of State Environmental Planning Policy (Resilience and Hazards 2021 (Resilience and Hazards SEPP) apply to the site, as it is within both the coastal environment area and the coastal use area.

7. The requirement at s 2.10(1) is that consent not be granted to development in the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on a series of nominated matters. The Council indicates that this consideration has been undertaken.

8. The requirement at s 2.10(2) is that consent not be granted unless the consent authority is satisfied that:

(a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subsection (1), or

(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

9. With the amended stormwater plans, the Council is satisfied that the development is designed, sited and will be managed to avoid an adverse impact referred to at s 2.10(1). I accept this advice and am satisfied with respect to s 2.10(2)(a).

10. Section 2.11(1) of the Resilience and Hazards SEPP requires that development consent not be granted to development in the coastal use area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on a series of matters listed at subsection 2.11(1)(a). There is a further consideration in that the surrounding coastal and built environment be taken into account and related to the proposal’s particulars (s 2.11(1)(c)). The Council indicates that this consideration has been undertaken.

11. The requirement at s 2.11(1)(b) is that consent not be granted unless the consent authority is satisfied that:

(i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or

(ii) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(iii) if that impact cannot be minimised—the development will be managed to mitigate that impact, and

12. Again, with the amendments to the proposal and in particular the amended stormwater plans, the Council is satisfied that the development is designed, sited and will be managed to avoid an adverse impact referred to at s 2.11(1)(a). I accept this advice and am satisfied with respect to s 2.11(1)(b)(i).

13. Section 4.6(1) requires the consent authority to consider whether land is contaminated, and if contaminated, whether it is satisfied that the land is suitable for the purpose proposed. The parties agree that the site is not subject to contamination noting the checks on potential contamination as outlined in the statement of environmental effects accompanying the DA. I accept this advice and am satisfied in that regard. The requirements of s 4.6(1) are met.

State Environmental Planning Policy (Transport and Infrastructure) 2021

14. Section 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) applies to development carried out "within 5m of an exposed overhead electricity power line" [s 2.48(1)(b)(iii)]. While the parties indicate that there are no findings required of the Court with respect to this, it is indicated that the required notification was undertaken and the Essential Energy response has been taken into consideration.

Other matters for consideration under section 4.15(1) of the EPA Act

15. The parties advise the proposal was notified in accordance with requirements and that four objecting and one supportive submission was received. The parties advise that these submissions have been considered. In particular I note the various final amendments to the proposal to address objector concerns.

Conclusion

16. With the above factual findings, there is no jurisdictional bar and the parties’ decision is one that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

17. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation

18. The Court notes the advice of the parties that the Respondent, as the relevant consent authority has, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 approved the amendment of Development Application No. 2501252 to rely on the amended plans and documents set out in Annexure 'A'.

Orders

19. The Court orders:

20. The appeal is upheld.

21. The Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed.

22. Development Application No. 2501252, as amended, for demolition of the existing roof and deck and construction of a two-storey mixed use development comprising of a ground floor commercial premises and shop top housing above, at Lot 2 DP 600340 known as 1 Scott Street, Crescent Head NSW 2240, is determined by a grant of consent subject to conditions contained in Annexure ‘B’.

Peter Walsh

Commissioner of the Court

Annexure A (98.7 KB, pdf)

Annexure B (399 KB, pdf)

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