Land Specialists Pty Ltd v Cessnock City Council

Texts Cited: Cessnock Development Control Plan 2010

Category: Principal judgment

Parties: Land Specialists Pty Ltd (Applicant)
Cessnock City Council (Respondent)

Representation: Counsel:
L Sims (Applicant)
C Koikas (Respondent)
Solicitors:
Land Specialists (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s): 2024/465601

Publication restriction: No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Cessnock City Council, of Development Application 8/2023/270/1 which seeks consent for a 29 lot subdivision and associated works at 35, 31 and 0 Government Road, Cessnock. The site is legally described as Lot 35 DP 1288491 (Lot 35), Lot 34 DP 1004648 (Lot 34) and Lot 2 DP 1067096 (Lot 2).

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 7 and 27 March 2025. I presided over the conciliation conference.

4. After 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.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application. These amendments included:

6. Increase the number and size of Asset Protection Zones (APZs) and the erection of a 1.8m colorbond fence on the southern boundary of Lot 34

7. The provision of a flood access report

8. Amended civil engineering drawings

9. 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 outlined in a jurisdictional note, and from this I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the owners of the land. The application as amended now includes works to the following land:

8. 31 Government Rd, Cessnock NSW 2325 (LOT: 2 DP: 1067096)

9. 35 Government Rd, Cessnock NSW 2325 (LOT: 35 DP: 1288491);

10. 33 Government Rd, Cessnock NSW 2325 (LOT 36 DP 1288491);

11. 0 Government Rd, Cessnock NSW 2325 (LOT: 34 DP: 1004648); and

12. 29 Government Rd, Cessnock NS2 2325 (LOT 1 DP: 1067096).

13. The application was adequately notified between 9 and 23 May 2023. Amended plans were also notified between 3 October and 17 October 2023. No submissions were received during either period.

14. The site is mapped as ‘Bushfire Prone Land’ and, as the application proposes subdivision on land that could lawfully be used for residential purposes, a Bushfire Safety Authority must be obtained from the NSW Rural Fire Service (NSW RFS) pursuant to s 100B of the Rural Fires Act 1997. This has been issued, along with General Terms of Approval (GTAs) which have been incorporated into the agreed condition of consent.

15. Pursuant to s 4.14 of the EPA Act, which provides for consultation and development consent on certain bush fire prone land, the parties submit that, although the development does not comply with Planning for Bush Fire Protection (s 4.14(1)(a)) and has not been provided with a certificate by a qualified consultant in bush fire risk assessment (s 4.14(1)(b)), consultation has occurred with the NSW RFS concerning measures to be taken with respect to development to protect persons, property and the environment from danger that may arise from a bush fire. This has been specifically addressed in the GTAs, and subsequently, I accept that the requirements of s 4.14 (1A) have been met and accordingly, the Court has power to grant development consent on this bush fire prone land.

16. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it will be suitable for the intended use. Based on the parties’ submission, the information contained in the Contamination Assessment by Qualtest dated 22 March 2023 and the agreed conditions of consent, I accept that the site can be made suitable for the intended use.

17. As the site is located within the City of Cessnock Local Government Area and is greater than 1 Ha in area pursuant to s 4.4 and Sch 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4 Koala Habitat Protection 2021 applies to the site. Section 4.9 provides for development applications where there is no approved koala management plan for the land, which is the case in this instance.

18. Pursuant to the requirements of s 4.9, the application is accompanied by an Ecological Assessment Report dated 13 March 2023 and a further response to a request for information dated 6 November 2023, both by Anderson Environment and Planning. These reports conclude that no impacts to koalas or koala habitat are likely as a result of the proposal and that no further assessment is required.

19. The subdivision for the purposes of residential allotments occurs on Lot 34, which is zoned R2 Low Density Residential under the Cessnock Local Environmental Plan 2011 (CLEP). Vehicular access is proposed for construction on Lot 2, which is zoned both RU2 Rural Landscape and R2, however the works are limited to the R2 portion. Lots 1, 2 and 35 and 36 are proposed to facilitate asset protection zones, and are zoned RU2. From the parties’ submission and the information contained in the Statement of Environmental Effects by Land Specialists Pty Ltd dated 25 August 2023 (SEE), I accept that the proposed development is consistent with the objectives of the relevant zones.

20. Subdivision is permitted with consent pursuant to cl 2.6 of the CLEP.

21. CLEP cl 4.1 provides minimum subdivision sizes of 450m2, which the proposed development complies with.

22. CLEP cl 6.1 Arrangements for designated State public infrastructure (now repealed) applies to the development as a result of the savings provisions in the State Environmental Planning Policy Amendment (Housing and Productivity Contributions) 2023 (Amendment SEPP). Subsequently, the consent authority must be satisfied that any public utility infrastructure that is essential for the proposed development is available, or that adequate arrangements have been made to make it available when required. From the parties’ submission, the letter from Hunter Water Corporation dated 4 December 2023 and the Secretary’s Certificate of Satisfactory Arrangements for designated State public infrastructure dated 6 December 2024, I am satisfied that satisfactory arrangements have been made in accordance with cl 6.1. For the same reasons I am satisfied that the requirements for public utility infrastructure at cl 6.2 have also been met.

23. Pursuant to CLEP cl 6.3, development consent must not be granted for development on land in an urban release area unless a development control plan providing for the matters specified in cl 6.3(3) has been prepared for the site. Chapter 12 Government Road Precinct in Part E of the Cessnock Development Control Plan 2010 applies to the site, and satisfies these requirements.

24. From the parties’ submission and the civil engineering plans by Quantum Engineers dated 25 March 2025, I accept that the earthworks-related matters listed in CLEP cl 7.2 have been considered, and that the proposed earthworks are acceptable.

Conclusion

20. 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, as required by s 34(3) of the LEC Act.

21. 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.

22. The Court notes:

23. Cessnock City Council, as the relevant consent authority, has agreed, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the Development Application to rely upon the following documents (Amended Development Application):

| Document | Author | Reference | Revision | Date | | Plan of Subdivision | North Point Surveys | Ref: 37998 | G | 3 April 2025 | | Flood Evacuation Plan | Site Plus Pty Ltd | Ref: 24116 | N/A | 04 February 2025 | | Owners Consent Form | Owner of Lot 1 DP1067096, 29 Government Road | N/A | N/A | Undated | | Owners Consent Form | Owner of Lot 36 DP1288491, 33 Government Road | N/A | N/A | Undated | | Owners Consent Form | Owner of Lot 35 DP1288491, 35 Government Road | N/A | N/A | Undated | | Owners Letter accepting APZ | Owner of Lot 35 DP1288491 | N/A | N/A | 26 March 2025 | | Owners Letter accepting APZ | Owner of Lot 36 DP1288491 | N/A | N/A | 27 March 2025 | | Owners Letter accepting APZ | Owner of Lot 1 DP1067096 | N/A | N/A | 27 March 2025 | | Civil Plans | Quantum Engineers | N/A | E | 25 March 2025 | | Zoning objectives letter | Land Specialists Pty Ltd | N/A | N/A | 15 April 2025 |

2. The Amended Development Application is not required to be lodged on the NSW Planning Portal pursuant to s 38(4) of the Environmental Planning and Assessment Regulation 2021.

3. The Applicant filed the Amended Development Application with the Court on the same day as this agreement.

4. The Court orders:

5. The appeal is upheld.

6. The applicant is granted leave to rely on the Amended Development Application.

7. Development Application No. 8/2023/270/1, as amended, for a one into 28 lot (26 residential lots, residue lot and on-site detention basin) subdivision and associated works is determined by the grant of consent subject to the conditions contained in Annexure A.

8. The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $10,000 (excluding GST) to be paid within 28 days of the date of this order.

E Washington

Commissioner of the Court

Annexure A (297568, pdf)

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