The Trustee for Double Space Greta Unit Trust v Cessnock City Council

Category: Principal judgment

Parties: The Trustee for Double Space Greta unit Trust (Applicant)
Cessnock City Council (Respondent)

Representation: Counsel:
R Wilcher (Solicitor) (Applicant)
S Miller (Solicitor) (Respondent)
Solicitors:
Keypoint Law (Applicant)
Sparke Helmore (Respondent)

File Number(s): 2025/186701

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) following the refusal by Cessnock City Council of development application DA 8/2023/304/1 seeking development consent for Tourist and Visitor Accommodation (22 units providing 26 beds; and 6 glamping tents providing 6 beds), Restaurant and Function Centre (100 seat capacity), Wellness Centre, ancillary amenities building, guest reception building, and associated infrastructure on land known as Lot 2 Deposited Plan 874323, 356 Tuckers Lane, Greta (the DA).

2. The DA was lodged by the Applicant in these proceedings, Trustee for Double Space Greta Unit Trust (Double Space) and was publicly notified by the Council for a period of 28 days from 14 June 2023 to 12 July 2023.

3. The DA was refused on 24 December 2024, in response to which Double Space filed an appeal with the Court on 15 May 2025.

4. On 31 October 2025, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act), at which I presided.

5. At the conciliation conference, the parties reached agreement on the matters in contention, and a signed agreement was filed with the Court on 28 October 2025, in accordance with s 34(10) of the LEC Act.

6. The parties ask me to uphold the appeal and grant conditional development consent to the development application according to terms set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by Double Space, 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.

7. 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.

8. 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.

9. The development application is supported by the written consent of the owner.

10. The proposed development is identified as integrated development under s 4.46 of the EPA Act by virtue of invoking the following:

11. Coal Mine Subsidence Compensation Act 2017, for which a Subsidence Advisory was received dated 28 June 2023.

12. Rural Fire**s Act 1997 (NSW), in respect of which a Bushfire Safety Authority has been issued in accordance with s 100B by virtue of the site being designated Bushfire Prone by the relevant map at s 10.3(2) of the EPA act

13. Water Management Act 2000 (NSW), for which a controlled activity approval has been issued in accordance with s 92.

14. General Terms of Approval in respect of those matters above are incorporated into the agreed conditions of consent.

State Environmental Planning Policy (Resilience and Hazards) 2021

12. I have considered whether the land is contaminated in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazard) 2021. On the basis of the Contamination Report prepared by Douglas Partners dated 26 April 2024, and the agreed conditions of consent, I accept that the site is generally suitable for the proposed development, subject to the remediation of localised areas within the existing and former chicken shed, identified in the Contamination Report, and in respect of which Condition 24 is imposed to ensure remediation of the site occurs prior to its proposed use.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

13. As the site is designated by the Cessnock Local Environmental Plan 2011 (CLEP) to be zoned RU2 Rural Landscape, Ch 3 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site.

14. I note Council has considered whether the site is potential or core koala habitat in accordance with ss 3.6 and 3.7 of the Biodiversity SEPP, and resolved that notwithstanding around 5% of the trees on the site are listed as koala feed trees, the Biodiversity Development Assessment Report prepared by MJD Environmental dated 18 March 2024 (the BDAR), in accordance with s 6.12 of the Biodiversity Conservation Act 2016 (NSW) (BC Act), records that there are no sign of koalas on the site and neither are there historical records of the same. The Habitat Assessment at Annexure E of the BDAR states that the closest record of a Koala is over 5km from the site.

15. On this basis, and assisted as I am by the BDAR, I am satisfied that whether or not the site is potential koala habitat, in terms set out at s 3.6 of the Biodiversity SEPP, such a designation does not of itself preclude the grant of consent but requires satisfaction under s 3.7 as to whether it is core koala habitat. I am satisfied that the site is not core koala habitat.

Biodiversity Conservation Act 2016 (BC Act)

16. The site is mapped on the NSW Biodiversity Values Map (BVM), with up to 0.59ha of native vegetation proposed to be impacted by the proposed development. Accordingly, Double Space relies on the Biodiversity Offset Scheme. Given the scope of potential impact is less than 3ha of native vegetation, a streamlined assessment Biodiversity Development Assessment method was adopted.

17. The DA relies on the BDAR cited at [14] to record assessments of threatened species, including the Endangered Ecological Community: Central Hunter Ironbark – Spotted Gum Forest (PCT 3315).

18. Additionally, the western extent of Tuckers Lane has multiple records of Persoonia pauciflora*,* a threatened species at risk of “serious and irreversible impact” that qualifies under cl 6.7(2) of the Biodiversity Conservation Regulation 2017 because of its small population size, and due to its limited geographic range.

19. The BDAR details how Double Space has mitigated to avoid and minimise impacts to biodiversity values, including amendment of the proposal to remove the need to upgrade Tuckers Road and accordingly, avoidance of those potential impacts to the critically endangered Persoonia pauciflora.

20. The proposed development has been designed and sited to avoid impacts to areas of higher biodiversity value within the Site by siting the development within areas of cleared and managed land.

21. In accordance with s 7.13(2) of the BC Act, I am required to take into consideration the likely impact of the proposed development on biodiversity values as assessed in the BDAR.

22. The parties are satisfied, as am I, that the BDAR outlines the likely impact of the proposed development in the Amended DA, and that the proposed design includes measures to avoid and minimise impacts on the relevant Endangered Ecological Community. The BDAR also identifies the retirement of 8 biodiversity offset credits, and a requirements for the same is set out in the agreed conditions of consent, at Condition 35.

Cessnock Local Environmental Plan 2011

23. As stated at [13], the site is located within an area designated RU2 Rural Landscape, in which development for the purposes proposed are permitted with consent, where consistent with the objectives for development in the zone are as follows:

• 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.

24. It is relevant to note at the time the DA was lodged, the uses nominated within the Land Use table such as Tourist and Visitor Accommodation; restaurant or café; Function centre and camping ground were permissible with consent. While a subsequent amendment to the Cessnock Local Environment Plan 2011 prohibited certain uses proposed, cl 1.8A of the CLEP saves the development application from such a prohibition.

25. The site is, in part, flood affected by the 1% Annual Exceedance Probability and Probable Maximum Flood flood. A Concept Stormwater Management Plan prepared Northrop dated 10 March 2023 concludes the proposed development does not result in significant redistribution of flow around the site, or significant changes in peak flood level either within or outside the site.

26. The parties agree that the Civil Engineering plans prepared by Northrop demonstrate sufficient onsite detention to avoid an increase in peak flows; and that there is not expected to be a risk to the proposed development from local flooding due to the height of floor levels of at least 1m above flood planning levels. Accordingly, I am satisfied pursuant to cl 5.21(2) of the CLEP that the proposal is compatible with the flood function and behaviour on the land, will not adversely affect the flood affection of other development or properties, and will not result in any avoidable erosion, siltation or reduction in the stability of the watercourse on the site. In a flood event, safe access is available from the site along Tuckers Lane towards Mansfield Street.

27. The Contamination Report cited at [12] states that the site is not within an area known to have any occurrence of acid sulfate soils: cl 7.1 of the CLEP.

28. The proposal is for Tourist and Visitor accommodation on a lot with a total area of 40.14 ha which is in excess of the minimum of 10 ha stipulated by cl 7.6 of the CLEP.

29. I am satisfied that essential services of a kind described at cl 7.14 of the CLEP will be available to the site when required by reference to the following:

30. The Hydraulics Services Report, prepared by Henry & Hymas dated 22 March 2023, and Memo by the same author dated 5 August 2025 in respect of the supply of potable water.

31. The Electrical Services DA Concept Design Brief report prepared by WEBB, dated 21 March 2023, describes the proposed consolidation of existing powerlines by augmenting the Ausgrid overhead cabling network via a dedicated 400kVa Ausgrid pole-mounted transformer.

32. A supplementary Effluent Disposal Investigation by Douglas Partners dated 5 August 2025 concludes sewage will be appropriately disposed of when agreed conditions of consent are considered.

33. The Civil Engineering plans prepared by Northrop demonstrate a stormwater detention system.

34. The parties agree that vehicular access is acceptable and preferable via Tuckers Lane.

35. On the basis of the following documents, the Court is satisfied that the development is designed, sited and will be managed to minimise impacts of a kind set out at cl 7.15(3) of the CLEP, in respect of groundwater vulnerability:

36. Preliminary Geotechnical and Effluent Disposal Assessment by Douglas Partners dated April 2023;

37. Contamination Report prepared by Douglas Partners dated 26 April 2024;

38. Effluent Disposal Investigation cited at [29(3)];

39. Civil Engineering plans cited at [26].

Conclusion

31. 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.

32. 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.

33. The Court notes that the Council, as the relevant consent authority, approves under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the amending of development application DA 8/2023/304/1 by those amended plans and other documents listed in Annexure A.

Orders

34. The Court orders that:

35. The Applicant is granted leave to rely upon the amended plans and documents referred to in Annexure A.

36. 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 have been thrown away as a result of the amendment of the application for development consent in accordance with the plans in Annexure B, in the amount of $20,000 within 28 days of these orders.

37. The appeal is upheld.

38. Development Application DA 8/2023/304/1 is approved subject to the conditions in Annexure B.

T Horton

Commissioner of the Court

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Annexure A (110 KB, pdf)

Annexure B (310 KB, pdf)