Sterling Property Group Pty Limited v Newcastle City Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Strata Schemes Development Act 2015 (NSW)
Water Management Act 2000 (NSW), s 91E
Environmental Planning and Assessment Regulation 2021, s 38
Newcastle Local Environmental Plan 2012, cll 2.6, 4.1, 4.3, 4.4, 5,10, 5.21, 6.1, 6.2, Sch 5
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.98
Water Management (General) Regulation 2018, cll 28, Sch 4

Texts Cited: Newcastle Development Control Plan 2012

Category: Principal judgment

Parties: Sterling Property Group Pty Limited (Applicant)
Newcastle City Council (Respondent)

Representation: Counsel:
K Ross (Solicitor) (Applicant)
A Sinclair (Solicitor) (Respondent)
Solicitors:
Moray & Agnew (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/364359

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 19**79 (NSW) (EPA Act) following the refusal by Newcastle City Council (the Council) of development application DA2024/00126 (DA), seeking consent for staged Multi Dwelling Housing development including demolition of existing structures and 1 into 27 lot strata subdivision at 15 Austin Street, Georgetown, otherwise known as Lot 1 in DP 34201.

2. The DA was lodged by the Applicant in these proceedings, Sterling Property Group Pty Limited (Sterling Property), on 28 February 2024 and notified between 7 March 2024 and 21 March 2024. Twenty-four (24) submissions were received in response to the DA.

3. As the DA was otherwise undetermined, Sterling Property appealed the deemed refusal on 2 October 2024. The Council refused the DA on 7 February 2025.

4. The Court arranged a conciliation conference between the parties, on 7 August 2025 under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act), at which I presided.

5. Two weeks prior to the conciliation conference, the parties reached agreement on the matters in contention and a signed agreement was submitted to the Court on 23 July 2025, in accordance with s 34(10) of the LEC Act. A further signed agreement was submitted on 28 July 2025.

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

7. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

8. 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’ 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.

9. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

10. The Site is designated R2 Low Density Residential Zone under the Newcastle Local Environmental Plan 2012 (NLEP), in which ‘residential accommodation’ is permitted with consent and where ‘multi dwelling housing’ is defined as a form of ‘residential accommodation’ under the definitions in the NLEP.

11. The objectives of the R2 zone are as follows:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To accommodate a diversity of housing forms that respects the amenity, heritage and character of surrounding development and the quality of the environment.

12. Subdivision pursuant to the Strata Schemes Development Act 2015 (NSW) (Strata Act) is permitted with consent under cl 2.6 of the NLEP.

13. The relevant Lot Size Map at cl 4.1(2) of the NLEP prescribes a minimum lot size of 400m² for the site. However, the provision does not apply to development for the purposes of subdivision under the Strata Act.

14. The relevant Height of Buildings map at cl 4.3(2) of the NLEP does not identify a height standard for the site. For completeness, the maximum height of the proposal is 7.9m.

15. The site adjoins an item of local heritage significance identified in Sch 5 of the NLEP as Former Lambton Colliery Railway (relic). A Statement of Heritage Impact prepared by EJE Architecture dated February 2024 provides a statement of significance for the item and concludes that the proposed development imposes no detriment to the heritage significance of the item. The parties agree that the proposal is acceptable and so I consider cl 5.10 of the NLEP to be satisfactorily addressed.

16. The site is flood affected, as such the provisions of cl 5.21 of the NLEP apply to the site. On the basis of the Water Cycle Management Plan prepared by GCA Engineering Solutions (GCA) and dated 30 April 2025, a Flood Impact Assessment prepared by Northrop Engineering dated 30 April 2025, and an addendum report prepared by GCA titled “Probable Maximum Flood Risk Management” dated 28 May 2025, I am satisfied that the proposed development is compatible with the flood function and behaviour on the land, and will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties. In arriving at this opinion of satisfaction, I accept the assessment of reduced levels and photographic descriptions of surrounding properties at 54A and 56 Clyde St, Hamilton North, and also that the proposed development will not have any impact on the 1% AEP or PMF events in the Georgetown Branch of Throsby Creek, and accordingly there are no flooding impacts on the existing residential area off Austin, Brett and Collins Streets. I also note that a watercourse is identified on the site, that is wholly contained within an existing concrete stormwater channel.

17. The parties are agreed, and I accept, that a Controlled Activity approval issued pursuant to s 91 of the Water Management Act 2000 (NSW) is not required for the development given the relevant exemption at Sch 4, Part 2 of the Water Management (General) Regulation 2018 (NSW) that states, at cl 28, that activities carried out in waterfront land where the relevant channel is fully concrete lined is exempt from the requirement to seek a controlled activity approval.

18. I am also satisfied, on the basis of particular agreed conditions of consent that the proposal will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and that the proposed development incorporates appropriate measures to manage risk to life in the event of a flood by virtue of those conditions imposing requirements as to hydraulic loading and achievement of reduced levels to permit safe refuge.

19. Finally, as the proposed development is agreed by the parties to be in accordance with section 4.01 Flood Management of the Newcastle Development Control Plan 2012*,* I am also satisfied that the development as proposed will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of riverbanks or watercourses.

20. The site is designated on the relevant Acid Sulfate Soils Map at cl 6.1(2) as Class 4 of the NLEP. As the proposed development does not involve works more than 2m below the natural ground surface and will not cause the water table to be lowered more than 2m below the natural ground surface, I accept that an acid sulfate management plan is not required.

21. On the basis of the Geotechnical Impact Assessment prepared by Geotechnique Pty Ltd dated 13 May 2024, Landscape Plans prepared by Terras Landscape Architects, site investigations listed at section 4 of the Remedial Action Plan prepared by Stantec dated 16 February 2025 (the RAP) and those documents cited at [16], I accept that those matters required to be considered at cl 6.2(3) of the NLEP in respect of earthworks are satisfactorily addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

22. The DA was referred to Australian Rail Track Corporation (ARTC) as the relevant rail authority in accordance with s 2.98 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure). Advice from ARTC was received and ARTC’s requirements have been taken into consideration and incorporated in the agreed conditions of consent.

State Environmental Planning Policy (Resilience and Hazards) 2021

23. I have considered whether the land is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP). On the basis of the previous investigations undertaken on the site and summarised in the RAP, and the agreed conditions of consent that deal with unexpected finds, I am satisfied the site can be made suitable, following remediation, for the purpose for which development is proposed to be carried out.

State Environmental Planning Policy (Sustainable Buildings) 2022

24. The application is accompanied by a BASIX certificate (Cert No. 1735595M dated 12 February 2024) prepared by Building & Energy Consultants Australia in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).

25. An embodied energy report is a part of the BASIX Certificate, such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

Conclusion

26. 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.

27. 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.

28. The Court notes that:

29. Newcastle City Council as the relevant consent authority for the purposes of s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) approves Sterling Property amending development application no. DA2024/00126 in accordance with the plans and other documentation contained in Annexure A.

30. The Applicant filed the amended development application in Annexure A with the Court on 11 August 2025.

Orders

29. The Court orders that:

30. The Applicant is granted leave to amend its development application in accordance with the plans and documents listed in Annexure A.

31. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay to the Respondent its costs “thrown away” as a result of the amendments to the development application in the agreed amount of $10,258.85 within 28 days of these orders.

32. The appeal is upheld.

33. Development consent is granted to development application DA2024/00126 for development described as Multi Dwelling Housing – staged development including demolition of existing structures and 1 into 27 lot strata subdivision, at 15 Austin Street, Georgetown, subject to the conditions of consent contained in Annexure B.

T Horton

Commissioner of the Court

Annexure A (207 KB, pdf)

Annexure B (528 KB, pdf)

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