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[2025] NSWLEC 1550
General information, not legal advice.
Land and Environment Court (NSW)
2025-08-01
Targett 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: Land Specialists Pty Ltd v Cessnock City Council [2025] NSWLEC 1550
Hearing dates: Conciliation Conference 12 June 2025
Date of orders: 01 August 2025
Decision date: 01 August 2025
Jurisdiction: Class 1
Before: Targett C
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Pursuant to s 39(2) of the Land and Environment Court Act 1979 (NSW), the Court exercises the function of the respondent in giving landowner’s consent to the development application so far as it relates to Lot 312 in Deposited Plan 566724.
(3) Development Application 8/2021/21939/1, as amended, for a 332 lot subdivision (328 residential lots, one residue lot and three on site detention basins) and associated works on land at Lot 35 in Deposited Plan 1288491, Lot 34 in Deposited Plan 1004648, Lot 2 in Deposited Plan 1067096, Lot 312 in Deposited Plan 566724 and Lot 36 in Deposited Plan 1288491 is determined by the grant of consent subject to the conditions set out in Annexure A.
(4) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the applicant is to pay the respondent’s costs thrown away as a result of the amendment to the development application, as agreed or assessed.
Catchwords: APPEAL – Development application – conciliation conference – agreement between the parties – orders
Legislation Cited: Biodiversity Conservation Act 2016 (NSW), Pt 7 Environmental Planning and Assessment Act 1979 (NSW), s 4.14, 4.46, 8.7, 8.10 Land and Environment Court Act 1979 (NSW), s 17, 34 Rural Fires Act 1997 (NSW), s 100B Biodiversity Conservation (Savings and Transitional) Regulation 2017 (NSW), cl 34A Cessnock Local Environmental Plan 2011, cll 2.6, 4, 5.3, 5.21, 6.1, 6.2, 6.3, 7.2, 7.15 State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 4.16 State Environmental Planning Policy (Koala Habitat Protection) 2021, cl 11 (repealed) State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.122 State Environmental Planning Policy Amendment (Housing and Productivity Contributions) 2023, cl 4
Cases Cited: Lindstro Pty Ltd v Tweed Shire Council [2017] NSWLEC 1150
Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724; 67 LGRA 181
Sydney City Council v Ipoh (2006) 149 LGERA 329; [2006] NSWCA 300
Texts Cited: NSW Rural Fire Service, Planning for Bushfire Protection
Cessnock Development Control Plan 2010
Category: Principal judgment
Parties: Land Specialists Pty Ltd (Applicant)
Cessnock City Council (Respondent)
Representation: Counsel:
L Sims (Applicant)
J Farrell (Respondent)
Solicitors:
Land Specialists (Applicant)
Sparke Helmore (Respondent)
File Number(s): 2023/286474
Publication restriction: Nil
COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicant against the respondent’s refusal of the applicant’s development application No. 8/2021/21939/1 (Development Application). The Development Application, as lodged, sought consent for a 336 lot residential subdivision and associated works to occur in three phases on land identified as Lot 33 in Deposited Plan 1004648 (now relevantly, Lot 35 in Deposited Plan 1288491) (Lot 35).
The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).
The Development Application was lodged with the respondent on 19 October 2021.
The Development Application was notified from 18 November to 2 December 2021.
As the land the subject of the proposal is mapped as bushfire prone land, the Development Application is for integrated development under s 4.46 of the EPA Act, and the proposal was referred to the NSW Rural Fire Service (RFS) on 4 November 2021. RFS issued General Terms of Approval (GTAs) on 5 April 2022.
On 15 February 2023, the respondent resolved to refuse the Development Application and the notice of determination was uploaded onto the planning portal on 9 March 2023.
On 8 September 2023, the proceedings were commenced in relation to the deemed refusal of the Development Application, being within the appeal period prescribed by s 8.10 of the EPA Act.
Following the termination of a conciliation conference arranged by the Court under s 34(1) of the LEC Act in July 2024, the matter was ultimately listed for hearing on 11 to 13 June 2025.
The applicant was granted leave to amend the Development Application on 5 September 2024, 27 March 2025, and 13 May 2025 (Amendments).
During the hearing, the parties reached agreement and requested that the matter be listed for another s 34 conference. The Court granted this request, and the matter was listed for a s 34 conference on 12 June 2025, following which the hearing was vacated. I presided over the hearing (to the extent it was commenced) and the conciliation conference.
The decision agreed upon is for the grant of consent to the Development Application as amended by the Amendments and as amended by further agreed amendments (Amended Development Application), subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.
The further amendments include:
providing updated land owners’ consent;
updated flooding impact advice;
updated engineering plans;
updated truck route assessment;
supplementary groundwater assessment; and
further information regarding the classification of Lot 312 in Deposited Plan 566724 (Lot 312).
It is important to note that the Amended Development Application now relates to Lot 35, Lot 312, Lot 34 in Deposited Plan 1004648 (Lot 34), Lot 2 in Deposited Plan 1067096 (Lot 2) and Lot 36 in Deposited Plan 1288491 (Lot 36), collectively the Subject Land.
The proposed use of, and works to, each of the lots is described as follows:
residential lots and internal roads will be located on Lot 35;
vehicular access to the residential subdivision will be via Government Road requiring works to Lots 2, 34, and 35; and
a second vehicular access will be via Alkira Road, including a crossing over Lot 312.
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 parties agree that the Amended Development Application has been made with the consent of the owners as follows:
Lot 34: see tab 46 annexed to the affidavit of Heath Bonnefin dated 10 June 2025;
Lot 35: see tab 45 annexed to the affidavit of Heath Bonnefin dated 10 June 2025;
Lot 2: tab 8 annexed to the affidavit of Heath Bonnefin filed on 28 August 2024; and
Lot 36: tab 8 annexed to the affidavit of Heath Bonnefin filed on 28 August 2024.
With respect to Lot 312, the parties agree, and I accept that, the Court can and should exercise the function of the Council, as the owner of Lot 312, and grant owner’s consent to the Amended Development Application pursuant to s 39(2) of the LEC Act (see Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724; 67 LGRA 181, Sydney City Council v Ipoh (2006) 149 LGERA 329; [2006] NSWCA 300, Lindstro Pty Ltd v Tweed Shire Council [2017] NSWLEC 1150 at [72]-[75]).
As the Amended Development Application seeks consent for the subdivision of bushfire prone land that could lawfully be used for residential purposes, a bush fire safety authority must be obtained pursuant to s 100B of the Rural Fires Act 1997 (NSW) (RF Act).
The RFS issued a Bushfire Safety Authority and revised GTAs (having regard to the Amendments) on 22 May 2025. The GTAs are incorporated into the agreed conditions of consent (see condition 2 and Annexure A).
Section 4.14(1)(a) of the EPA Act relevantly provides that development consent cannot be granted for the carrying out of development on bush fire prone land, unless the consent authority is satisfied that the development conforms to the specifications and requirements of Planning for Bush Fire Protection (PBFP) that are relevant to the development.
Section 4.14(1) of the EPA Act applies to the Amended Development Application as the Subject Land is mapped as containing bush fire prone land. The parties agree that the requirements of s 4.14(1)(a) of the EPA Act have been met having regard to the findings in both the Bushfire Threat Assessment prepared by Anderson Environment & Planning (AEP) dated May 2025 (Bushfire Assessment) and GTAs issued by RFS (incorporated in the Agreed Conditions at condition 2 and Annexure A to the conditions).
In determining the Development Application, I confirm that I am satisfied that the Amended Development Application complies with the relevant specifications and requirements of PBFP, having regard to the Bushfire Assessment, GTAs issued by RFS, and conditions of consent.
The Amended Development Application proposes the clearing of approximately 8ha of native vegetation.
However, the parties agree that the proposed development is the subject of a certificate under cl 34A of the Biodiversity Conservation (Savings and Transitional) Regulation 2017 (NSW) (BC Savings Regulation). The cl 34A certificate is contained within tab 27 annexed to the affidavit of Heath Bonnefin filed 18 March 2025. As set out in the Ecological Assessment Report prepared by AEP dated 1 December 2023 at p 2 (Ecological Assessment):
“As per s34A of the Biodiversity Conservation (Savings & Transitional) Regulation 2017, NSW Department of Planning and Environment (DPE) has confirmed that the delivery of the identified 32ha of privately-owned property within Yengo National Park (hereafter referred to as the “offset site”) to the National Parks and Wildlife Service (NPWS) Estate, as outlined in the DCP, will satisfy all biodiversity impact offset requirements associated with the Proposed Development of the Subject Site.”
The delivery of the 32ha of high conservation priority land is being effected via a voluntary planning agreement and condition 72 of the Agreed Conditions further requires the provision of this offset.
The parties further agree that the effect of this certificate, and cl 34A, is that Pt 7 of the Biodiversity Conservation Act 2016 (NSW) (BC Act) does not apply and the biodiversity impacts of the proposal are to be assessed in accordance with previous planning provisions.
The parties rely on the “7 part test” analysis carried out by the Ecological Assessment and previous assessments considered in the Ecological Assessment.
Further, the potential impacts of the proposal on Rutidosis heterogama (heath wrinklewort) are proposed to be managed by avoiding earthworks in the area of known occurrence/habit and conducting asset protection zone (APZ) management sensitively. These requirements are incorporated at conditions 88, 96, and 97 of the Agreed Conditions.
Having regard to the Ecological Assessment, cl 34A certificate, and agreed conditions, I am satisfied that ecological impacts of the Amended Development Application have been appropriately assessed.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that:
A consent authority must not consent to the carrying out of any development on land unless:
(a) it has considered whether the land is contaminated; and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.
The Amended Development Application relies on the Detailed Site Investigation prepared by Qualtest Laboratory NSW dated 17 May 2022 (DSI) relating to (now) Lot 35 and part of Lot 36. The DSI concludes that the Subject Land can be made suitable for the proposed residential development subject to carrying out remediation works in accordance with a remediation action plan (RAP) and/or management of hydrocarbon and microbiological contamination.
I note that there is a further Contamination Assessment prepared by Qualtest Laboratory NSW dated 22 March 2023 relating to part of Lot 2 and Lot 34 (Contamination Assessment). The Contamination Assessment concludes that Lots 2 and 34 can be made suitable for the proposed development subject to the implementation of various recommendations. The parties agree that these recommendations are encompassed at conditions 52 and 53 of the Agreed Conditions.
Condition 24 of the Agreed Conditions relevantly requires a RAP to be prepared in accordance with the DSI requirements, and for validation and/or monitoring to be undertaken, and independently audited and a Site Audit Statement issued.
Having regard to the DSI, the Contamination Assessment, and agreed conditions of consent (in particular Conditions 24, 50, 51, 52 and 53), I am satisfied that the Subject Land will be suitable for its proposed use before the land is used for that purpose, and that the requirements of s 4.6 of the RH SEPP have been met.
As the Development Application was lodged on 19 October 2021 and the Subject Land is located in the City of Cessnock, the (now repealed) State Environmental Planning Policy (Koala Habitat Protection) 2021 (Koala SEPP) applies to the proposal (see s 4.16 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP)). Notably, the relevant provisions of the Koala SEPP have been transferred into the BC SEPP in any event.
Clause 11 of the Koala SEPP applies to the proposal as the Subject Land is over 1ha and does not have an approved koala plan of management applying to the land. Clause 11(2) of the Koala SEPP requires a council to assess whether the development is likely to have any impact on koalas or koala habitat before granting consent.
The Amended Development Application is accompanied by an Ecology Report prepared by AEP dated 5 September 2022 (Ecology Report). The Ecology Report concludes that no impacts to koalas or koala habitat are likely as a result of the proposal and no further assessment is required.
Having regard to the Ecology Report, and agreement of the parties, I am satisfied that the Amended Development Application is capable of being approved having regard to cl 11 of the Koala SEPP.
The Subject Land is zoned part R2 Low Density Residential and part RU2 Rural Landscape under the Cessnock Local Environmental Plan 2011 (CLEP). Accordingly, the development the subject of the Amended Development Application is permitted with consent in the R2 zone. With respect to those aspects of the proposal located on the RU2 zoned land (primarily an APZ to support the residential development), the parties agree that cl 5.3 of the CLEP relating to development near zone boundaries can be utilised.
The parties agree, and I accept that, the relevant distance of 20m is not exceeded and the criteria set out in cl 5.3(4) is met, having regard to the circumstances of the proposed development.
In determining the Amended Development Application, I have had regard to the R2 and RU2 zone objectives which are extracted below:
R2 Low Density Residential
RU2 Rural Landscape
To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.
To maintain the rural landscape character of the land.
To provide for a range of compatible land uses, including extensive agriculture.
To enable other compatible forms of development that are associated with rural activity and require an isolated location or support recreation.
To ensure the type and intensity of development is appropriate in relation to the rural capability and suitability of the land.
To maintain and enhance the scenic character of the land.
To ensure development does not create unreasonable or uneconomic demands for the provision or extension of services or infrastructure by public authorities.
To minimise disturbance to the landscape from development caused by vegetation clearing, earthworks, access roads and construction of buildings.
To ensure development does not intrude into the skyline when viewed from a road or other public place.
The parties agree that the Amended Development Application is consistent with, or not antipathetic to, the objectives of the R2 or RU2 zones.
The subdivision of land is permissible with consent pursuant to cl 2.6 of the CLEP.
Clause 4.1 of the CLEP relating to “minimum lot sizes” relevantly provides, in conjunction with the Lot Size Map, that the minimum lot subdivision size for that part of the Subject Land zoned R2 is 450m2. The parties agree that all proposed lots comply with the minimum subdivision lot size.
Clause 5.21 of the CLEP relating to “flood planning” applies to the Amended Development Application due to the Subject Land being within the flood planning area. The Amended Development Application is accompanied by a Flood Impact Assessment Report prepared by Quantum Engineers dated 7 May 2025 (Flood Report) and Flood Evacuation Plan prepared by Site Plus Pty Ltd dated 19 February 2025 (Flood Plan). The parties agree that post development, the residential lots will be located above the probable maximum flood level. Having regard to the Flood Report, Flood Plan, and agreement of the parties, I confirm that I have considered the matters listed in cl 5.21(3) and am satisfied of the matters listed in cl 5.21(2) of the CLEP.
Clause 6.1 of the CLEP relating to “arrangements for designated State public infrastructure” (now repealed) requires the applicant to provide evidence that satisfactory arrangements have been made to contribute to the provision of State public infrastructure. Clause 6.1 of the CLEP continues to apply to the proposal because State Environmental Planning Policy Amendment (Housing and Productivity Contributions) 2023 (Amending SEPP) which relevantly repealed cl 6.1 from the CLEP, provides at cl 4, a development application made but not finally determined before the commencement of this policy must be determined as if this policy had not commenced.
The Amended Development Application is accompanied by a Satisfactory Arrangements Certificate (Certificate) prepared by the Delegate of the Minister for Planning Public Spaces dated 4 December 2024 which certifies that arrangements have been made to contribute to the provision of State public infrastructure, thus satisfying the requirements of cl 6.1 of the CLEP.
Pursuant to cl 6.2 of the CLEP relating to “public utility infrastructure”, a consent authority must not grant development consent to development unless it is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make those services available when required.
The parties agree that the Subject Land is located within an area mapped as being within an urban release area. The applicant relies on:
a letter from Hunter Water Corporation dated 4 December 2023 regarding water and sewer; and
overhead power in Government Road immediately adjacent to the Subject Land.
Further, as set out in the Statement of Environmental Effects prepared by Land Specialists dated 8 April 2024 (SEE) at p 19, the Subject Land adjoins an existing fully serviced urban residential estate and utility services plans are included within the application. The parties therefore agree, and I accept, that cl 6.2 of the CLEP is satisfied.
Pursuant to cl 6.3 of the CLEP relating to “development control plan”, development consent must not be granted for development on land within an urban release area unless a development control plan that provides for the matters set out in cl 6.3(3) of the CLEP has been prepared for the land.
As set out at [51], the Subject Land is mapped as being within an urban release area. Chapter 12 “Government Road Precinct” in Part E of the Cessnock Development Control Plan 2010 (DCP) applies to the Subject Land as it forms part of the Government Road Precinct. Therefore, the parties submit, and I accept that, cl 6.3 of the CLEP is satisfied.
Pursuant to cl 7.2 of the CLEP relating to “earthworks”, a consent authority must consider the matters specified in cl 7.2(3) before grant consent for earthworks. The Amended Development Application proposes earthworks to facilitate the extension of Government Road into the site, the connection of services and detention basins. The parties agree, and I accept, that the updated civil engineering drawings demonstrate that the quantity of the fill to be brought to the site has been reduced, and that conditions of consent relating to the source and quality of the fill and transport movements, adequately address the matters listed in cl 7.2(3) of the CLEP.
Pursuant to cl 7.15 of the CLEP relating to “groundwater vulnerability”, the consent authority must consider the matters listed in cl 7.15(3) and be satisfied of the matters listed in cl 7.15(4). Clause 7.15 only applies to that part of the Subject Land zoned RU2 Rural Landscape (cl 7.15(2) of the CLEP). That part of the development located on land zoned RU2 is for the purpose of an APZ. No trees are proposed to be removed and no earthworks are proposed on this land. The parties agree that the development on this land will not:
result in groundwater contamination;
have any impact on the groundwater resource; and
have an unacceptable impact on surface water flows or groundwater availability.
The parties agree, and I accept, that having regard to the above, and agreed conditions of consent (see condition 99), the matters in cl 7.15(3) of the CLEP have been considered and the matters in cl 7.15(4) of the CLEP have been satisfied.
The parties agree that the Amended Development Application can be approved taking into consideration the matters listed in s 4.15(1)(b)-(e) of the EPA Act. Matters relevant to subss (b), (c), and (e) are considered generally in the SEE (see pp 44-46).
In relation to s 4.15(d) of the EPA Act, as set out at [4] above, the Development Application as lodged was notified from 18 November to 2 December 2021. One submission objecting to the proposed development was received. The parties agree that this submission was later withdrawn.
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.
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 Court notes that the respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), the applicant amending Development Application No. 8/2021/21939/1 to rely on the following documents:
| Document | Author | Revision | Ref/ Date | | 45. | Owners Consent Form | Land Specialists Estates NSW Pty Ltd | NA | Date: 13 March 2025 | | 46. | Owners Consent Form | Land Specialists Estates NSW & QLD Pty Ltd | NA | Date: 04 June 2025 | | 47. | Civil/Stormwater Drainage & Flood Impact Letter to Council | Quantum Engineers | NA | Ref: 250119_Responde 2025.06.05 Date: 05 June 2025 | | 48. | Amended Civil Engineering and Stormwater Drainage Works | Quantum Engineers | G | Ref: Date: 6 June 2025 | | 48a. | Bulk Earthworks Plan | Quantum Engineers | G | Drawing No: EW_101 to EW_102 Date: 6 June 2025 | | 48b. | Roadworks & Road Layout | Quantum Engineers | G | Drawing No: RD_101 to RD_106 Date: 6 June 2025 | | 48c. | Road Longsections | Quantum Engineers | G | Drawing No: RD_ 201 to RD_211 Date: 6 June 2025 | | 48d. | Typical Road Cross Sections | Quantum Engineers | G | Drawing No: RD_ 212 Date: 6 June 2025 | | 48e. | Drainage Layout Plan | Quantum Engineers | G | Drawing No: SW_201 to SW_206 Date: 23 May 2023 | | 48f. | Combined OSD & Bioretention Basin Plans | Quantum Engineers | G | Drawing No: SW_303 to SW_304 Date: 6 June 2025 | | 49. | Truck Route Assessment | Motion Traffic | 1B | Ref: N232046N Date: 06 June 2025 | | 50. | Supplementary Groundwater Assessment | Reditus | NA | Date: 06 June 2025 | | 51. | Reclassification Planning Proposal Status | Department of Planning | NA | Date:28 May 2025 | | 52. | Revised Plan of Subdivision | North Point Surveys | T | Ref: 37208 Date: 02 June 2025 | | 53. | Development Application Plans for 21 Government Road Cessnock DA 8/2025/12/1 | Site Plus | B | Ref: 24116.DAC01 Date: 12 September 2024 | | 54. | Lot 312 Owners Consent | Cessnock City Council | NA | Date: 29 June 2021 |
The Court orders that:
The appeal is upheld.
Pursuant to s 39(2) of the Land and Environment Court Act 1979 (NSW), the Court exercises the function of the respondent in giving landowner’s consent to the development application so far as it relates to Lot 312 in Deposited Plan 566724.
Development Application 8/2021/21939/1, as amended, for a 332 lot subdivision (328 residential lots, one residue lot and three on site detention basins) and associated works on land at Lot 35 in Deposited Plan 1288491, Lot 34 in Deposited Plan 1004648, Lot 2 in Deposited Plan 1067096, Lot 312 in Deposited Plan 566724 and Lot 36 in Deposited Plan 1288491 is determined by the grant of consent subject to the conditions set out in Annexure A.
Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the applicant is to pay the respondent’s costs thrown away as a result of the amendment to the development application, as agreed or assessed.
Annexure A (1.25 MB, pdf)
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Land Specialists Pty Ltd
Cessnock City Council [2025] NSWLEC 1550
(1989) 15 NSWLR 724
(2006) 149 LGERA 329