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[2026] NSWLEC 1034
General information, not legal advice.
Land and Environment Court (NSW)
2026-01-30
Washington C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Colantonio v Lake Macquarie City Council [2026] NSWLEC 1034
Hearing dates: Conciliation conference on 16-17 December 2025
Date of orders: 30 January 2026
Decision date: 30 January 2026
Jurisdiction: Class 1
Before: Washington C
Decision: The Court orders:
(1) The appeal is upheld.
(2) Development Application No. 86/2025 PAN-505967 for the following development at Lot 722 DP 537942 known as 64A Buttaba Road, Brightwaters NSW 2264, is determined by a grant of consent subject to conditions at Annexure ‘A’:
(a) alteration and additions to an existing boatshed;
(b) removal of three native trees in the foreshore area; and
(c) a 25m long slipway extending from the existing boatshed.
Catchwords: DEVELOPMENT APPLICATION — construction of jetty and slipway — alterations and additions to existing boatshed — impacts to seagrass — conciliation conference — agreement between the parties — orders.
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 4.47, 8.7 Fisheries Management Act 1994 (NSW), s 205 Land and Environment Court Act 1979 (NSW), ss 34, 34AA Environmental Planning and Assessment Regulation 2021 (NSW), s 38 Lake Macquarie Local Environmental Plan 2014, cll 43., 7.1, 7.2, 7.6 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.10, 2.11, 2.12, 2.13
Category: Principal judgment
Parties: David Colantonio (Applicant)
Lake Macquarie City Council (First Respondent)
Minister for Agriculture (Second Respondent)
Representation: Counsel:
N Hammond (Applicant)
T Wood (Solicitor) (First Respondent)
R Coffey (Second Respondent)
Solicitors:
SWS Lawyers (Applicant)
Maddocks (First Respondent)
Department of Primary Industries and Regional Development (Second Respondent)
File Number(s): 2025/294237
Publication restriction: Nil
COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Lake Macquarie City Council, of Development Application DA/86/2025 which seeks consent for the construction of a jetty and slipway, alterations to an existing boatshed, and ancillary tree removal at 64A Buttaba Road, Brightwaters, Lot 722 in DP 537942.
The application is nominated as integrated development as approval is required under s 205 of the Fisheries Management Act 1994 (NSW) for a permit to harm marine vegetation (sea grass). The Minister for Agriculture (the Minister) has declined to provide general terms of approval to the application, and accordingly the Council was required to refuse the application pursuant to s 4.47(4) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), however this appeal was lodged prior to the Council making a formal determination.
These proceedings have been brought to the Court pursuant to s 8.7 of the EPA Act.
The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 16-17 December 2025.
At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing.
As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Council agreed to the applicant amending the development application to address the concerns raised by the Council and the Minister.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained. From this I note the following points.
The development application was made with the written consent of the owner of the land and the consent of Crown Lands.
The application was adequately notified from 4 to 25 February 2025, during which time no submissions were received. The parties agree, and I accept, that the amended application does not necessitate renotification.
The site is mapped as ‘coastal environment area’ and ‘coastal use area’ under the relevant maps in the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) and therefore Ch 2 of the SEPP RH applies. From the parties’ submission and the information contained in the amended application, I accept that the proposed development satisfies the requirements of ss 2.10, 2.11 and 2.12 of the SEPP RH. Further, as no coastal management plan currently applies to the site, s 2.13 is also satisfied.
The subject site is zoned C2 Environmental Conservation and R2 Low Density Residential under the Lake Macquarie Local Environmental Plan 2014 (LMLEP), however the proposed works are within the C2 zone. Development for the purpose of a boat shed and water recreation structure is permissible with consent within this zone, and the proposed development is consistent with the objectives of this zone.
Pursuant to LMLEP cl 4.3, a maximum building height of 5m applies to the subject site. The proposed development complies with this development standard with a maximum height of 4m.
Pursuant to LMLEP cl 7.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, however the proposed works are not likely to lower the water table below 1 metre Australian Height Datum and so the requirements of this clause are met without further assessment.
From the parties’ submission and the Geotechnical Report by Agility Engineering dated 18 June 2025, I accept that the earthworks-related matters listed in LMLEP cl 7.2(3) have been considered and that the proposed earthworks are acceptable.
LMLEP cl 7.6 permits limited development on the foreshore area. From the parties’ submission and the information in the amended application, I accept that the proposed development meets the requirements of cl 7.6(3), and consent is therefore able to be granted pursuant to 7.6(2).
For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, and subsequently I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
The Court notes:
Lake Macquarie City Council, as the relevant consent authority, has agreed pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) to the Applicant amending the development application and relying upon the following amended plans and documents:
| Document | Date | | 1. | Amended plans prepared by the Jetty Man | October 2025 | | Name | Plan Number | | Updated Site Plan | Page 1 of 4 | | Amended Slipway Plan | Page 3 of 4 | | Boat Shed Extension Plan | Page 4 of 4 | February 2025 |
The Court orders:
The appeal is upheld.
Development Application No. 86/2025 PAN-505967 for the following development at Lot 722 DP 537942 known as 64A Buttaba Road, Brightwaters NSW 2264, is determined by a grant of consent subject to conditions at Annexure ‘A’:
(a) alteration and additions to an existing boatshed; (b) removal of three native trees in the foreshore area; and (c) a 25m long slipway extending from the existing boatshed.
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Annexure A (253 KB, pdf)
Colantonio
Lake Macquarie City Council [2026] NSWLEC 1034