//
[2026] NSWLEC 1050
General information, not legal advice.
Land and Environment Court (NSW)
2026-02-10
Young AC
Original judgment source is linked above.
Zoe will write a short plain-English brief of this judgment and email it to you: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: PC Infrastructure Pty Limited v Newcastle City Council [2026] NSWLEC 1050
Hearing dates: Conciliation conference on 21 November 2025
Date of orders: 10 February 2026
Decision date: 10 February 2026
Jurisdiction: Class 1
Before: Young AC
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted to Development Application No DA2022/01197 for the construction and use of a service station with associated landscaping, signage, earthworks and carparking at 240 Maitland Road, Islington NSW 2296 (also described as Lot 1 in DP120977, Lot 1 in DP363569, and Lot 1 in DP1095538) subject to the conditions set out in 'Annexure A'.
(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent that are thrown away as a result of amending the development application, in the agreed sum of $20,000, payable within 28 days.
Catchwords: DEVELOPMENT APPLICATION — s34 conciliation conference — service station — agreement reached — orders made
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
Newcastle Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 5.21, 6.1, 6.2, 6.9
State Environmental Planning Policy (Industry and Employment) 2021, Ch 3, ss 3.1, 3.6, 3.21, Sch 5
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.4, 2.10, 2.11, 2.12, 3.11, 3.12, 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48, 2.119, 2.122
Texts Cited: Newcastle City Council Community Participation Plan
NSW Environment Protection Authority's Waste Classification Guidelines 2014
Category: Principal judgment
Parties: PC Infrastructure Pty Limited (Applicant)
Newcastle City Council (Respondent)
Representation: Counsel:
R Pleming (Applicant) (Solicitor)
D Loether (Respondent) (Solicitor)
Solicitors:
Allens (Applicant)
Bartier Perry (Respondent)
File Number(s): 2025/232488
Publication restriction: Nil
C****OMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of Development Application No DA2022/01197 (DA) lodged with Newcastle City Council (Council) on 20 October 2022.
The DA seeks development consent for the construction and use of a service station with associated landscaping, signage, earthworks and carparking at 240 Maitland Road, Islington NSW 2296 (legally described as Lot 1 in DP120977, Lot 1 in DP363569, and Lot 1 in DP1095538) (site).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties on 21 November 2025. I presided over the conciliation conference.
Pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), Council has approved amending the DA in accordance with the amended plans.
As the amended DA is the subject of Court proceedings, it is not required to be lodged on the NSW Planning Portal pursuant to s 38(4) of the EPA Regulation.
On 22 December 2025, the parties submitted an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the amended DA, subject to the conditions in Annexure A.
The signed agreement is supported by a Jurisdictional Note from the parties, that sets out the jurisdictional prerequisites that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act.
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.
For the reasons set out below, 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.
The DA was notified by the Respondent in accordance with the Newcastle City Council Community Participation Plan from 4 November 2022 to 2 December 2022 for a period of 28 days. A total of 23 individual submissions were received in response to the notification of the DA.
The parties agree and I am satisfied that the amended DA is not required to be notified under the Newcastle City Council Community Participation Plan given the amended DA reduces the impacts of the proposed development.
There is a requirement for the consent authority to take into consideration these submissions under s 4.15(1)(d) of the EPA Act. I note that the parties agree, and I accept that the relevant issues raised in submissions have been adequately considered and addressed in the amended DA and through the conditions of consent in Annexure A.
Chapter 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies to the proposed development as the site is located within a 'Coastal Environment Area', a ‘Coastal Use Area’ and a ‘Coastal Zone’ defined under s 2.4 of the Resilience and Hazards SEPP.
Pursuant to ss 2.10, 2.11 and 2.12 of the Resilience and Hazards SEPP, development consent must therefore not be granted to the proposed development unless the consent authority has considered a range of matters relating to the protection and management of the coastal zone and is satisfied that any adverse impacts or risks can be avoided.
Based on the documents that accompany the Class 1 Application, and the documents referred to in Annexure A, the parties agree and I am satisfied that the applicable matters under Ch 2 of the Resilience and Hazards SEPP have been considered and that the proposed development is not likely to result in any detrimental impacts or increased risk to the coastal environment.
Pursuant to ss 3.11 and 3.12 of the Resilience and Hazards SEPP, the DA must be accompanied by a Preliminary Hazard Assessment (PHA) and the consent authority is required to consider a range of matters relating to hazards and risks to people, property and the environment.
In this case, the DA was accompanied by a PHA along with additional information requested by Council. The PHA and the additional information confirms that the proposed development does not introduce unacceptable risk to people, property, or the environment, and the site is suitable for the type of development proposed.
Based on the findings of the PHA and the implementation of the applicable conditions of consent in Annexure A which require the implementation of the recommendations of the PHA, the parties agree and I am satisfied that the applicable matters under ss 3.11 and 3.12 of the Resilience and Hazards SEPP have been adequately addressed.
Section 4.6 of the Resilience and Hazards SEPP requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.
In this case, the amended DA includes a Limited Detailed Site Investigation Report prepared by FYFE dated 6 November 2025, a Long Term Environmental Management Plan prepared by FYFE dated 8 December 2025 (LTEMP), and a Site Audit Statement and Site Audit Report prepared by Australian Environmental Auditors dated 9 December 2025 (SAS/SAR).
The SAS/SAR confirms that the Site is suitable in its contaminated state for the proposed commercial land use, subject to the implementation of the LTEMP. Conditions 1 and 46 of the conditions of consent in Annexure A require the property owner and subsequent owners to implement and comply with the approved LTEMP.
Accordingly, the parties agree and I am satisfied that contamination has been adequately considered and the site is suitable for the proposed use in accordance with s 4.6 of the Resilience and Hazards SEPP.
Section 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) applies as the proposed development is located within 2 metres of an overhead electricity distribution pole. In accordance with s 2.48, the DA was referred to Ausgrid. Ausgrid did not raise any objections to the proposed development and subsequently issued an ‘Offer for Design Services’.
Section 2.119 of the Transport and Infrastructure SEPP applies as the proposed development is on land that fronts a classified road. A consent authority must not grant consent to development on land that has a frontage to a classified road unless the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development.
The requirements of s 2.119 of the Transport and Infrastructure SEPP were addressed in the Statement of Environmental Effects and the Traffic and Parking Assessment prepared by Intersect Traffic dated 4 June 2021 which formed part of the DA. The Traffic and Parking Assessment relevantly concluded that the proposed development will not compromise the effective and ongoing operation and function of Maitland Road (being a classified road). The DA was also referred to Transport for NSW which raised no objection to the proposed development.
The parties agree and I accept that continued access from Maitland Road is acceptable, and that the safety, efficiency and ongoing operation of the highway will not be adversely affected by the development as a result of any of the matters listed in s 2.119. I further accept that the development is of a type that is not sensitive to traffic noise or vehicle emissions, and that the requirements of s 2.119 of the Transport and Infrastructure SEPP are met in respect to the proposed development.
Pursuant to s 2.122 of the Transport and Infrastructure SEPP, the DA was referred to Transport for NSW. Transport for NSW did not raise any objections to the proposed development. Based on the Traffic and Parking Assessment, the parties agree and I am satisfied that the proposed development will not result in traffic safety, road congestion or parking issues.
Chapter 3 of the State Environmental Planning Policy (Industry and Employment) 2021 (Industry and Employment SEPP) applies to the signage associated with the proposed development. Section 3.6 requires a consent authority to be satisfied that the signage is consistent with the objectives in s 3.1 of the Industry and Employment SEPP and that the signage satisfies a range of assessment criteria in Sch 5 of the Industry and Employment SEPP.
Based on the consideration of these matters in the Statement of Environmental Effects and the Advertising and Signage Compliance Table prepared by ADW Johnson, the parties agree and I am satisfied that the requirements of s 3.6 of the Industry and Employment SEPP have been met.
Pursuant to s 3.21 of the Industry and Employment SEPP, and based on the assessment in the Statement of Environmental Effects and Council’s Assessment Report, the parties agree and I am satisfied that the pylon sign associated with the proposed development addresses the requirements of s 3.21, as it does not protrude above the dominant skyline having regard to surrounding buildings, structures and tree canopies.
The parties agree and I am satisfied that the proposed development complies with the applicable development controls under the LEP and the relevant matters required to be considered for the proposed development under the LEP have been addressed, including:
Pursuant to cl 4.3 of the LEP, the maximum building height permitted is 14 metres. The proposed development has a maximum height of 8 metres and therefore complies with the maximum building height under the LEP.
Pursuant to cl 4.4 of the LEP, the maximum Floor Space Ratio permitted is 1.5:1. The proposed development has a Floor Space Ratio of 0.25:1 and therefore complies with the maximum Floor Space Ratio under the LEP.
Pursuant to cl 5.21 of the LEP, the site is mapped as flood prone land. Council’s Assessment Report includes an assessment of the flood impacts and management measures. Condition 24C of the conditions of consent in Annexure A requires the ground floor levels of all proposed buildings and building additions to comply with the designated flood planning level of 5.5 metres Australian Height Datum.
Pursuant to cl 6.1 of the LEP, the DA was accompanied by an Acid Sulfate Soil Management Plan for the site prepared by Envirotech Services Australia Pty Ltd dated 29 December 2022. Condition 1 of the conditions of consent in Annexure A requires the proposed development to be implemented in accordance with this plan.
Pursuant to cl 6.2 of the LEP, earthworks are proposed to allow the installation of new fuel tanks and associated works. Council’s Assessment Report identifies that any excavated material will need to be disposed of at an appropriate waste management facility. Condition 44 of the conditions of consent in Annexure A requires excavated material to be assessed, classified, transported and disposed of in accordance with the NSW Environment Protection Authority's 2014 Waste Classification Guidelines.
Pursuant to cl 6.9 of the LEP, development consent must not be granted to development for the purposes of service stations if the only access to the service station is from a local road. In this case, access to the proposed development is from Maitland Road (a classified road) and consequently it complies with this clause.
Based on the Jurisdictional Note, the documents that accompany the Class 1 Application, and the documents referred to in Annexure A, 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.
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 against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act.
The Court orders:
The appeal is upheld.
Development consent is granted to Development Application No DA2022/01197 for the construction and use of a service station with associated landscaping, signage, earthworks and carparking at 240 Maitland Road, Islington NSW 2296 (also described as Lot 1 in DP120977, Lot 1 in DP363569, and Lot 1 in DP1095538) 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 costs of the Respondent that are thrown away as a result of amending the development application, in the agreed sum of $20,000, payable within 28 days.
Annexure A (569 KB, pdf)
**********
Fixed representation
PC Infrastructure Pty Limited
Newcastle City Council [2026] NSWLEC 1050