The Trustee for Spectrum Reit 38 Trust v Newcastle City Council

Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245
McMillan v Taylor (2023) 111NSWLR 634; [2023] NSWCA 183

Category: Principal judgment

Parties: The Trustee for Spectrum Reit 38 Trust (Applicant)
Newcastle City Council (Respondent)

Representation: Counsel:
G Long (Solicitor) (Applicant)
R McCulloch (Solicitor) (Respondent)
Solicitors:
Sparke Helmore Lawyers (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s): 2024/334853

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 development appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of development application 2024/00089. The development application sought consent for the establishment of a take away food and drink premises (DA) at 111 Newcastle Road, Wallsend, legally described as Lots 3 and 4 DP 361051 (site).

2. These proceedings were originally listed for a hearing on 27 to 28 November 2025. Prior to the hearing, the parties reached agreement that the contentions had been resolved and requested a conciliation conference. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 27 November 2025. I presided over the conciliation conference.

3. The Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) to the Applicant amending DA-2024/00089 in accordance with the documents listed below in relation to contamination:

| Document | Prepared by | Dated | | 111 Newcastle Road, Wallsend, NSW, Data Gap Investigation Report | JBS&G | 7 October 2025 | | 111 Newcastle Road, Wallsend, NSW, Remedial Action Plan | JBS&G | 8 October 2025 | | Interim Audit Advice (No. 14): Remedial Action Plan (Rev 0) 111 Newcastle Road, Wallsend, NSW | Senversa | 14 October 2025 |

4. The parties reached 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 for the amended DA and granting development consent to the amended application subject to conditions of consent.

Jurisdictional Prerequisites

5. As part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

7. In considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that ‘there are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement’ and not an evaluative decision: McMillan v Taylor (2023) 111NSWLR 634; [2023] NSWCA 183 at [60] to [65] and Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [202].

8. I have carried out the required jurisdictional check. 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.

Owner’s consent

9. I am satisfied that owner’s consent accompanied the development application (Tab 1 of the Class 1 Application).

Community notification and objections

10. The Respondent notified the DA between 23 February 2024 to 8 March 2024. 46 submissions were received during the notification period and 12 submissions after. The DA was also informally notified between 15 July 2025 to 30 July 2025 to those who had made a submission. 17 submissions were received.

11. At the duty conciliation conference, several objectors raised their genuine concerns in relation to the merits of the proposal including parking, traffic and crime issues, as well as other concerns that were raised in the written objections.

12. Different from the consideration of the Court at a hearing, as the parties have entered into an agreement, the Court’s role is limited to ensuring that there is power to grant consent, and not to considering the merits of the issues raised (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [217]).

13. In reaching agreement, the parties have advised the Court that they considered the concerns raised in the objections. In relation to one of the key issues regarding traffic and parking, the parties advised that a further approval for the roundabout and associated works is required pursuant to s 138 of the Roads Act 1993 (NSW) and imposed by condition 25 in Annexure A.

Newcastle Local Environmental Plan 2012

14. I accept the parties’ agreement that the identified preconditions to grant consent are satisfied as detailed below:

15. The site is zoned E4 General Industrial. The proposed development for a take away food and drinks premises is permissible with consent in the zone. Pursuant to cl 2.3, the parties’ have had regard to the objectives of the zone as demonstrated in the jurisdictional statement.

16. The site is mapped as Class 5 acid sulfate soils pursuant to cl 6.1. An acid sulfate soils management plan is not required as the proposal is more than 500 metres (m) from Class 1, 2, 3 and 4 land and is 20m Australian Height Datum.

State Environmental Planning Policy (Industry and Employment) 2021

15. I accept the parties’ agreement that they are satisfied that the proposed signage is consistent with the provisions of State Environmental Planning Policy (Industry and Employment) 2021 as detailed in the jurisdictional statement and Statement of Environmental Effects prepared by Urbis dated 9 February 2024.

State Environmental Planning Policy (Resilience and Hazards) 2021

16. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 apply to the site. The site has been identified as contaminated and numerous reports have been provided to address the contamination and remediation. The most salient reports are:

17. Data Gap Investigation Report prepared by JBS&G dated 7 October 2025.

18. Remedial Action Plan prepared by JBS&G dated 8 October 2025.

19. Interim Audit Advice (No. 14): Remedial Action Plan (Rev 0) 111 Newcastle Road, Wallsend, NSW, prepared by Senversa dated 14 October 2025.

20. On the basis of the above reports and contamination experts’ opinions expressed in the joint expert reports, I accept the parties’ agreement that the provisions have been satisfied and that the site can be made suitable for the proposed use.

State Environmental Planning Policy (Transport and Infrastructure) 2021

18. Section 2.122 applies as the proposed development is traffic generating development under Sch 3 of State Environmental Planning Policy (Transport and Infrastructure) 2021. The DA was referred to Transport of NSW (TfNSW) on 21 February 2024 who raised concerns. I accept the parties’ agreement that the concerns of TfNSW have been considered and addressed through the amended DA by the proposed roundabout at the intersection of Douglas Street and Marie Street and median strip on Douglas Street to prevent right turns.

Heads of consideration

19. On the basis of the material accompanying the Class 1 appeal and the jurisdictional statement, I accept that the relevant matters for consideration pursuant to s 4.15(1) of the EPA Act have been adequately considered.

Conclusion

20. 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.

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.

Orders:

22. The Court orders:

23. 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 the agreed amount of $15,000 within 7 days of the date of this order.

24. The appeal is upheld.

25. Development Application DA-2024/00089 is determined by the grant of consent subject to conditions set out in Annexure A.

S Porter

Commissioner of the Court

Annexure A (525 KB, pdf)

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