Avid Residential Estates Pty Ltd v Maitland City Council

[2025] NSWLEC 1210

Land and Environment Court

New South Wales

Medium Neutral Citation:

Avid Residential Estates Pty Ltd v Maitland City Council [2025] NSWLEC 1210

Hearing dates:

Conciliation conferences on 2 and 30 September, 29 October, 19 November, 3 and 17 December 2024

Date of orders:

04 April 2025

Decision date:

04 April 2025

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment to the development application, in the agreed amount of $45,000, such amount to be paid within 28 days of the date of this order.

(2) The appeal is upheld.

(3) Development consent is granted to development application No. 2023/497 as amended for the Subdivision of Two Hundred & Eighty one (281) Residential Torrens Title Lots in 3 Stages with staged residue lots, including the construction and dedication of roads and drainage facilities, vegetation removal, bulk earthworks/regrading and retaining, landscaping and provision of services (including drainage, sewer, water, electrical, telecommunications, and gas) at 7 Caldera Street, 29 Stillwater Parade, 40 Goldring Street, 3 Caldera Street, 18 Darkmouth Street, 16 Darkmouth Street, 9 Rockmaster Street, Emperor Parade and 261 Settlers Boulevard, Chisholm, legally known as Lot 2 DP 1295677, Lot 6121 DP1268036, Lot 6140 DP1284398, Lot 6283 DP1295797, Lot 3001 DP1264314, Lot 2726 DP1237666, Lot 2531 DP1224018, Lot 2425 DP1224017, Lot 2426 DP124017 and Lot 4 DP1222785 subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, s 6.12

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 4.46, 8.7, 8.15, Sch 1, Div 2, s 7

Land and Environment Court Act 1979, s 34

Roads Act 1993, s 9

Rural Fires Act 1997, s 100B

Water Management Act 2000, ss 90, 91

Environmental Planning and Assessment Regulation 2021, s 38

Maitland Local Environmental Plan 2011, cll 2.2, 2.3, 2.6, 4.1, 5.10, 5.16. 5.21, Pt 6, ss 6.1, 6.2, 6.3, 7.1, 7.2, 7.4

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 3, Pt 3.2, s 4.9, Sch 2

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.122

Texts Cited:

Maitland Development Control Plan 2011

Category:

Principal judgment

Parties:

Avid Residential Estates Pty Ltd (Applicant)
Maitland City Council (Respondent)

Representation:

J Lazarus Counsel (Applicant)
N Simmons (Solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2024/89901

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application No 2023/497 (the DA) for a Two Hundred & Eighty one (281) lot Torrens Title residential subdivision constructed in three stages including two stormwater drainage reserve lots and three residue lots at land known as 29 Stillwater Parade, 40 Goldring Street, 3 and 7 Caldera Street, 16 and 18 Darkmouth Street, 9 Rockmaster Street, Billabong Parade and 261 Settlers Boulevard (now known as 227 Settlers Boulevard), Chisholm NSW (the site).

2. The DA was lodged with the Respondent on 14 July 2023.

3. The Respondent advises that:

1. The proposed residential subdivision will be primarily situated over 7 Caldera Street; however also includes part of multiple residue lots created as part of the adjoining subdivisions to the east and south;

2. The site has an area of 30.12ha;

3. The DA as submitted also seeks development consent for:

1. The construction of roads;

2. The connection of stormwater through to the two stormwater basins;

3. The removal of vegetation;

4. Bulk earthworks (including the importation of 142,450m³ of fill), lot regrading, lot benching and retaining walls;

5. Landscaping including street trees; and

6. Services for water, sewer, stormwater, power and telecommunications;

4. The DA is proposed to be carried out in the following stages:

1. Stage 81 containing 86 lots (including proposed stormwater basin B);

2. Stage 82 containing 93 lots; and

3. Stage 83 containing 103 lots (including proposed stormwater basin A).

4. A s 34 conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties was convened by the Court on 2 September 2024. I presided over the conciliation conference, which commenced with an on-site view. No submissions had been received in response to the notification of the DA.

5. The s 34 conciliation conference was adjourned a number of times before a s 34 agreement was reached between the parties on 18 December 2024.

6. A signed s 34 agreement with Annexure A was filed with the Court on 18 December 2024, with amended plans (the amended DA) and additional documents as agreed between the parties being filed with the Court on 20 December 2024. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

7. The parties advise that the amended DA satisfactorily addresses the contentions raised by the Respondent in the Statement of Facts and Contentions (SOFAC), and that the main changes to the proposed development in the amended plans are as follows:

1. Existing Lot and DP references updated to reflect the latest Lot and DP’s, which were amended after lodgement;

2. Added sheets DA-118, DA-119 and DA-120 to illustrate proposed subdivision staging;

3. Added note to Masterplan to dedicate public reserve at the completion of Stage 83;

4. Added note to Masterplan noting drainage reservices are not intended to me subdivided as part of this Development Application;

5. Amended lots 8101,8148, 8149 and 8158 to be wholly within R1 zone boundary;

6. Amended extent of scour protection form basins;

7. Amended proposed lot boundaries bounded by Darkmouth Street, Goldring Street, Road 7 and Caldera Street to allow for tree retention;

8. Reduced lot yield by 1;

9. Amended staging boundary and lot yield table to be consistent with proposed lot boundaries. Stage 82 yield reduced by 2 lots. Stage 83 yield increased by 1 lot;

10. Updated lot numbering to reflect revised yield and staging;

11. Amended proposed lot boundaries of 8301-8304, and 8313-8316 to allow for tree retention;

12. Updated Lot diversity plan to be consistent with new boundaries; and

13. Updated plans to reflect proposed amalgamation of Lot 4, DP 1222785 into residue lot.

8. The parties also advise that the latest engineering plans were updated as follows as a result of the amendments to the plans:

1. Updates to lots boundaries, staging and lot numbers to be consistent with the updated subdivision plans;

2. Updated to service locations, retaining walls and easements to be consistent with new lot boundaries;

3. Added Services plan;

4. Updated drawings with refined tree survey; and

5. Updated design contours and cut and fill plans to reduce earthwork extents around retained trees.

9. 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. 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.

10. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act. This decision involved the Court upholding the appeal and granting development consent to the amended DA subject to conditions.

11. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a jurisdictional note accompanying the s 34 agreement, and those requirements have been satisfied as follows:

Jurisdictional Prerequisites

Owner’s Consent

12. The parties advise that Owner’s consent has been given to the Respondent for the lodgement of the DA for the greater part of the site, which is comprised of a number of separate lots.

13. The parties have confirmed that the proposed development is to be carried out within the property boundaries of the land described in the development consent.

14. In the Statement of Facts and Contentions (SOFAC), the Respondent advised that:

“It is noted that the Class 1 Application describes the site as including Lot 112 DP734271, known as 24 Duckenfield Road. However, the Applicant has advised the Council by email dated 2 August 2023 that the DA instead should refer to the newly created Lot 2 DP1295677, known as 7 Caldera Street. Owner’s consent for Lot 2 DP1295677 has been provided to the Council however is not attached to the Class 1 Application.”

15. The parties have provided a further updated list of lots in the land description which is included in the development consent. The parties advise that the amendments to Lot and DP numbers for the site are a result of recent subdivision.

Public Notification (Sch 1, Div 2, s 7(1) of the EPA Act)

16. The DA was publicly notified between 11 August 2023 and 7 September 2023. No submissions were received in response to that notification.

Conditions

17. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Integrated Development

18. The parties advise that the Applicant elected to have the DA assessed as integrated development (as defined by s 4.46 of the EPA Act) (refer to paras [19] – [24]) below.

Rural Fires Act 1997

19. The parties advise that Applicant provided a Bushfire Assessment Report, dated 8 May 2023, prepared by Bushfire Planning Australia, which confirms that the site is exposed to a marginal bushfire hazard and provides key recommendations to mitigate any bushfire risk.

20. The assessment and mitigation measures were considered sufficient by the Respondent for the DA to be referred to a bushfire safety authority under s 100B(4) of the Rural Fires Act 1997.

21. The Parties agree that the development application was referred to NSW Rural Fire Service (RFS) on 4 August 2023, and the RFS issued its General Terms of Approval GTA’s for the proposed development on 21 September 2023. The parties agree that the amended DA is not required to be resubmitted to the RFS.

Roads Act 1993

22. The parties advise that the roads within the proposed development are to be opened as public roads, and that pursuant to s 9 of the Roads Act 1993, the plan of subdivision bears a statement that the land that is intended to be road is to be dedicated as a public road.

Water Management Act 2000

23. The proposed development is “Integrated Development” as defined by s 4.46 of the EPA Act as it may require an approval under ss 90 and 91 of the Water Management Act 2000.

24. The parties advise that the development application was referred to Water NSW and its General Terms of Approval (GTA’s) were provided on 6 December 2023 and then re-issued on 11 October 2024 following re-referral of the DA, as amended.

Other External Referrals

25. On 4 August 2023, the Respondent referred the DA to Mindaribba Local Aboriginal Land Council, Transport for NSW (TfNSW) and Ausgrid. No comments were received from the Mindaribba Local Aboriginal Land Council.

26. On 22 August 2023, Ausgrid responded to the referral providing its consent to the proposed development subject to conditions.

27. On 28 August 2023, TfNSW responded to the referral and raised no objections to or requirements for the proposed development.

Maitland Local Environmental Plan 2011

28. The Maitland Local Environmental Plan 2011 (the LEP) applies to the site and to the proposed development. Under the LEP provisions:

1. The site is zoned R1 General Residential Zone, RU2 Rural Landscape Zone and C2 Environmental Conservation Zone pursuant to cl 2.2 of the LEP; and

1. The parties advise that consideration has been given to the objectives of R1 General Residential Zone, RU2 Rural Landscape Zone and C2 Environmental Conservation Zone as required by cl 2.3(2) of the LEP and that the proposed development achieves the objectives of the zones; and

2. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

2. Pursuant to cl 2.6(1) of the LEP, the site can be subdivided with development consent.

3. Pursuant to cl 4.1 of the LEP, the site is subject to a 450m² minimum lot size for all land in the R1 zone and 40ha minimum lot size for all land in the RU2 and C2 zone. The parties advise that the proposed development is wholly compliant with this lot size control. All residential lots in the R1 zone have a minimum lot size of 450m² and the residue lot comprising land in the RU2 and C2 zones is greater than 40ha.

4. Clause 5.10 of the LEP relates to heritage conservation. The parties advise that part of the site is subject to an existing Aboriginal Heritage Impact Permit (AHIP), however:

1. It is noted that all artefacts have been salvaged, and that the Applicant has provided an Aboriginal Due Diligence Assessment, prepared by McCardle Cultural Heritage, dated 14 June 2022; and

2. The parties submit that subject to the Applicant complying with the recommendations contained within the above report, the parties agree that the Proposed Development satisfies the considerations within cl 5.10.

5. Clause 5.16 of the LEP relates to the subdivision of, or dwellings on, land in certain rural, residential or conservation zones and applies to the subject site; and

1. The parties advise that the Proposed Development does not include subdivision to occur within the RU2 or C2 zone and therefore the parties agree that cl 5.16(4) is not applicable to the proposed development.

6. Clause 5.21 of the LEP relates to flood planning. The parties advise that parts of the site are identified on the LEP map as being located in the Flood Planning Area and parts of the site are also affected by the 1% AEP flood event; and

1. The Applicant has provided a revised Flood Impact Assessment, revision 4, prepared by Torrent Consulting, dated 23 September 2024 (the Flood Assessment), and flood modelling was also undertaken for the proposed development to confirm that that the development does not result in significant redistribution of the flow around the site, or significant changes in peak flood levels either within or outside of the site;

2. The parties agree that the proposed development satisfies the considerations within cl 5.21 and that the Flood Assessment states that the development will not cause any significant or unacceptable flood impacts, and that the flood safety risks of the occupants of future dwellings can be managed appropriately; and that the Flood Assessment provides a detailed assessment of the impacts of flooding events on the proposed development and surrounding area and confirms that the requirements of cl 5.21 of the LEP have been satisfied; and

3. Accordingly, the parties agree that the consent authority can be satisfied that the proposed development:

1. is compatible with the flood function and behaviour on the land having regard to:

1. proposed development flood immunity is achieved in accordance with adopted flood planning levels;

2. proposed development does not result in significant changes to existing flood conditions and does not result in adverse impact to other parts of the floodplain; and

3. the modelling undertaken addresses the requirements of the LEP, Maitland Development Control Plan (DCP) and NSW Flood Risk Management Manual;

2. will not adversely affect flood affectation or behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties;

3. 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. The Flood Assessment details evacuation strategy and routes to ensure appropriate safe occupation and efficient evacuation;

4. incorporates appropriate measures to manage risk to life in the event of a flood because it uses the ‘rising road access’ available within the subdivision design and is consistent with the evacuation approach used for all new dwellings in the area; and

5. will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses. The proposed detention basins designs incorporate specific erosion control measures for the basin outlet and spillway discharges.

7. Part 6 of the LEP relates to Urban Release areas. The site is identified as being part of the Thornton North Stage 2 Urban Release Area on the LEP Urban Release Area Map 006A. Clause 6.1 of the LEP relates to arrangements for designated State public infrastructure; and

1. The Applicant has provided a letter received from the Department of Planning and Environment on 30 June 2015 which confirms that the developers in the Thornton North Stage 2 Urban Release Area will not be required to enter into planning agreements to contribute to State infrastructure;

2. Subsequently, the Applicant received a Satisfactory Arrangements Certificate, dated 23 September 2023, and has provided the letter to the Respondent which confirms that pursuant to cl 6.1(2) satisfactory arrangements have been made for the proposed development to contribute to the provision of designated State public infrastructure; and

3. The parties agree that the proposed development satisfies cl 6.1.

8. Clause 6.2 of the LEP relates to public utility infrastructure. The parties advise that cl 6.2 of the LEP is satisfied as follows:

1. The Applicant has made adequate arrangements to make public utility infrastructure available for the proposed development; and

2. The Applicant has provided a services plan which details the location of the services, and the Notice of Formal Requirements from Hunter Water, dated 14 April 2023, which confirm that adequate arrangements have been made to satisfy cl 6.2 that essential infrastructure will be made available.

9. Clause 6.3 of the LEP relates to the preparation of a development control plan for urban release areas. The DCP includes the Thornton North Urban Release Area at Part F.7 of the DCP; and

1. Part of the site is located within the Thornton North Urban Release Area and specifically is located within the Waterford County North Precinct Plan. Part F.7 of the DCP provides for the matters specified in cl 6.3(3) and applies to part of the site; and

2. The parties advise that specific controls have been prepared for the land and cl 6.3 of the LEP is satisfied.

10. Clause 7.1 of the LEP relates to acid sulfate soils. The site is identified on the LEP Maps as being affected by class 2 and class 5 acid sulfate soils; and

1. The Applicant has provided a Preliminary Site Investigation, revision 3, dated 5 June 2024, prepared by EP Risk, that confirms that the Proposed Development requires an Acid Sulfate Soil Management Plan. The Applicant has provided an Acid Sulfate Soil Management Plan dated 15 October 2024, prepared by EP Risk; and

2. The parties agree that the proposed development satisfies the considerations within cl 7.1 and that the site is suitable for the proposed development.

11. Clause 7.2 of the LEP relates to earthworks. The parties advise that:

1. The Applicant has provided a Stormwater Management Plan, revision F, dated September 2024, prepared by ADW Johnson (Stormwater Management Plan), Aquatic Ecology Assessment document, dated 23 September 2024, prepared by AEP (Aquatic Ecology Report) and Aboriginal Due Diligence Assessment prepared by McCardle Cultural Heritage, dated 14 June 2022, in order to satisfy cl 7.2 of the LEP to ensure that the earthworks will not have a detrimental impact on the environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land;

1. The Stormwater Management Plan assesses and provides a consideration of the matters listed at cl 7.2(3)(a)-(g);

2. The Stormwater Management Plan concludes that the development including associated stormwater basins are designed, sited and can be managed to avoid any significant adverse impact from increased stormwater flows. The Aquatic Ecology Report concludes that the proposed overflows from the two detention basins will have limited to no impact on the highly degraded Type 3 fish habitat and Class 3 waterway and that post construction there will be no direct impacts as the proposed regeneration works are likely to significantly improve water quality, water flows, availability of fish habitat and riparian and instream vegetation; and

3. The parties agree that the proposed development satisfies the considerations within cl 7.2(3) and that the site is suitable for the proposed development.

12. Clause 7.4 of the LEP relates to riparian land and watercourses. The site contains land identified as Watercourse Land on the LEP Watercourse Map and the proposed development is within 40 metres of the Watercourse Land; and

1. The parties agree that the proposed development satisfies the considerations within cl 7.4(3) of the LEP and that the site is suitable for the proposed development.

Biodiversity Conservation Act 2016

29. The Applicant provided a Biodiversity Development Assessment Report, dated 23 September 2024, prepared by AEP (the BDAR). The parties advise that:

1. The BDAR complies with s 6.12 of the Biodiversity Conservation Act 2016 (the BC Act) and satisfies the requirements of the BC Act. The BDAR concludes that the proposed development will result in a nature positive outcome as follows:

2. The proposed development has been designed and sited to avoid impacts to areas of higher biodiversity value within the Site (including habitat trees occupied by Barn Owls) and has been subject to several design iterations which respond to and minimise biodiversity impacts by increasing the number of hollow bearing trees to be retained;

3. To minimise the impact of the proposed development, a Biodiversity Management Plan dated 23 September 2024, has been prepared and provides for the regeneration of 29ha of floodplain vegetation, which includes planting of native groundcovers and pocket planting surrounding nest box poles. Based on these actions, Council accepts that the Applicant has taken sufficient steps to seek to “avoid” and “minimise” biodiversity impacts; and

4. The proposed development includes the retention of 25 trees, the dedication of part of Lot 2 DP 1295677 to Council which will be used as public reserve to be regenerated and maintained as a biodiverse land subject to the Biodiversity Management Plan, the installation of 140 nestboxes and the retirement of ecosystem credit retirement and species credit retirement; and

State Environmental Planning Policy (Biodiversity and Conservation) 2021

30. The parties advise that Ch 3 of the State Environmental Planning Policy (Biodiversity & Conservation) 2021 (the Biodiversity SEPP) applies to the part of the site that is zoned RU2 as the proposed development is located in the Local Government Area of ‘City of Maitland’ as specified in Sch 2 of the Biodiversity & Conservation SEPP.

31. Part 3.2 of the Biodiversity SEPP applies to the land zoned RU2 as Ch 3 applies, and the DA has been made in relation to the land and has an area of more than 1 hectare.

32. The site has an area of at least 1 hectare and does not have an approved koala plan of management and therefore, s 4.9 of the Biodiversity & Conservation SEPP applies.

33. The Applicant provided a BDAR, dated 23 September 2024, prepared by AEP (refer to para [27] above), prepared by a suitably qualified and experienced person, which details the surveys and assessment undertaken for the site. The site does contain trees belonging to the koala use tree species listed in Sch 2 of the Biodiversity SEPP, however the parties advise that the BDAR assessed and confirmed that that the site is unlikely to be a Core Koala Habitat.

34. Therefore, under s 4.9(5) of the Biodiversity SEPP the parties advise that the Court can be satisfied that as the site is not a potential koala habitat it does not prevent the Court from granting development consent for the Proposed Development.

State Environmental Planning Policy (Resilience and Hazards) 2021

35. In relation to the provisions of the State Environmental Planning Policy (Resilience and Hazards) 2021 (the Resilience SEPP), s 4.6 requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use.

36. The parties advise that the Applicant provided a Preliminary Site Investigation, dated 5 June 2024, prepared by EP Risk which confirms that additional investigation of imported fill will be undertaken prior to development and an unexpected finds protocol will be prepared and implemented to address any unidentified contamination during development. The Applicant has also provided an Acid Sulfate Soil Management Plan to address the acid sulfate soils present on the site.

37. The parties advise, and I agree, that the investigation detailed in the Preliminary Site Investigation and measures proposed by the Acid Sulfate Soil Management Plan satisfy the requirements under s 4.6 of the Resilience SEPP and that the site is suitable for the proposed development

State Environmental Planning Policy (Transport and Infrastructure) 2021

38. The proposed development includes the subdivision of more than 200 lots and the opening of a public road, therefore under Sch 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (the Infrastructure SEPP) it constitutes as a traffic generating development and is required to be referred to TfNSW.

39. The proposed development is a traffic-generating development which pursuant to s 2.122(4) of the Infrastructure SEPP required the Respondent as the consent authority to give written notice of the application to TfNSW and to take into account any response received to the notice. The parties advise that the Applicant provided a Traffic Impact Assessment, dated 22 February 2023, prepared by Intersect Traffic which details that the site is accessible and the proposed development will not result in any potential traffic safety, road congestion or parking implications.

40. On 28 August 2023, Transport for NSW issued a letter to the consent authority which raised no objection to or requirements for the proposed development.

41. The parties agree that s 2.122 of the Infrastructure SEPP is satisfied, and the site is suitable for the proposed development.

42. Section 2.48 of the Infrastructure SEPP relates to development likely to affect an electricity transmission or distribution network. The proposed development includes the placement of power lines underground and the construction of new power lines with agreement from the electrical authority (Ausgrid) and the consent authority.

43. The Respondent gave written notice to Ausgrid in relation to the Proposed Development and on 22 August 2023. Ausgrid responded to the referral providing its consent to the proposed development subject to conditions.

44. The parties submit that s 2.48 of the Infrastructure SEPP is satisfied, subject to the Applicant complying with the conditions provided by Ausgrid.

Conclusion

45. Having considered the advice of the parties provided above at [12]-[44], I am satisfied that:

1. the Applicant’s amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

3. approval of the proposed development is in the public interest.

46. Further, 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.

47. 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.

48. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

49. The Court notes that:

1. Maitland City Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 has approved the application for an amendment to development application No. 2023/497 made on 18 December 2024 to rely on the documents specified below:

Tab

Document

Date

1.

Biodiversity Development Assessment Report, revision 9, prepared by AEP

23 September 2024

2.

Biodiversity Management Plan – Retained Land, revision 3, prepared by AEP

23 September 2024

3.

Aquatic Ecology Assessment document, revision 5, prepared by AEP

23 September 2024

4.

Arborist inspection and report prepared by AEP

15 October 2024

5.

Subdivision Plans, prepared by ADW Johnson as follows:

Drawing No.	Drawing Name	Rev.
DA-101	Cover Sheet & Drawing Index	H
DA-102	Locality Plan – Maitland LGA	H
DA-103	Locality Plan - Local Context	H
DA-104	Existing Site Natural Surface Plan	H
DA-105	Overall Masterplan	H
DA-106	Detail Plan – Sheet 1	H
DA-107	Detail Plan – Sheet 2	H
DA-108	Detail Plan – Sheet 3	H
DA-109	Detail Plan – Sheet 4	H
DA-110	Detail Plan – Sheet 5	H
DA-111	Detail Plan – Sheet 6	H
DA-112	Detail Plan – Sheet 7	H
DA-113	Lot Size Plan	H
DA-114	Zoning & Flood Mapping Plan	H
DA-115	Lot Diversity Plan	H
DA-116	Acid Sulphate Soils Mapping Plan	H
DA-117	Walkability Plan	H
DA-118	Subdivision Staging Plan A	H
DA-119	Subdivision Staging Plan B	H
DA-120	Subdivision Staging Plan C	H

9 October 2024

6.

Concept Engineering Plans, prepared by ADW Johnson as follows:

Drawing No.	Drawing Name	Rev.
190433(81-83)-CENG-001	Cover Sheet, Index of Drawings & Locality Sketch	G
190433(81-83)-CENG-002	Overall Site Plan	G
190433(81-83)-CENG-103	Demolishing & Tree Removal Plan	G
190433(81-83)-CENG-101	Detail & Services Plan – Sheet 1	G
190433(81-83)-CENG-102	Detail & Services Plan – Sheet 2	G
190433(81-83)-CENG-103	Detail & Services Plan – Sheet 3	G
190433(81-83)-CENG-104	Detail & Services Plan – Sheet 4	G
190433(81-83)-CENG-105	Detail & Services Plan – Sheet 5	G
190433(81-83)-CENG-106	Detail & Services Plan – Sheet 6	G
190433(81-83)-CENG-107	Detail & Services Plan – Sheet 7	G
190433(81-83)-CENG-201	Typical Road Profiles & Kerb Details	G
190433(81-83)-CENG-211	Road Longitudinal Section - Stillwater Parade – Sheet 1	G
190433(81-83)-CENG-212	Road Longitudinal Section - Stillwater Parade – Sheet 2	G
190433(81-83)-CENG-213	Road Longitudinal Section - Stillwater Parade – Sheet 3	G
190433(81-83)-CENG-214	Road Longitudinal Section - Stillwater Parade – Sheet 4	G
190433(81-83)-CENG-215	Road Longitudinal Section - Goldring Street – Sheet 1	G
190433(81-83)-CENG-216	Road Longitudinal Section - Goldring Street – Sheet 2	G
190433(81-83)-CENG-217	Road Longitudinal Section - Goldring Street – Sheet 3	G
190433(81-83)-CENG-218	Road Longitudinal Section - Malachite Street – Sheet 1	G
190433(81-83)-CENG-219	Road Longitudinal Section - Malachite Street – Sheet 2	G
190433(81-83)-CENG-220	Road Longitudinal Section - Caldera Street – Sheet 1	G
190433(81-83)-CENG-221	Road Longitudinal Section - Caldera Street – Sheet 2	G
190433(81-83)-CENG-222	Road Longitudinal Section – Aquata Street	G
190433(81-83)-CENG-223	Road Longitudinal Section – Darkmouth Street	G
190433(81-83)-CENG-224	Road Longitudinal Section – Dasher Way	G
190433(81-83)-CENG-225	Road Longitudinal Section – Fontana Street	G
190433(81-83)-CENG-226	Road Longitudinal Section – Glasspond Street	G
190433(81-83)-CENG-227	Road Longitudinal Section – Road No 1 & Road No 2	G
190433(81-83)-CENG-228	Road Longitudinal Section – Road No 3 & Road No 4	G
190433(81-83)-CENG-229	Road Longitudinal Section – Road No 5	G
190433(81-83)-CENG-230	Road Longitudinal Section – Road No 6	G
190433(81-83)-CENG-231	Road Longitudinal Section - Road No 7 – Sheet 1	G
190433(81-83)-CENG-232	Road Longitudinal Section - Road No 7 – Sheet 2	G
190433(81-83)-CENG-233	Road Longitudinal Section – Road No 8	G
190433(81-83)-CENG-501	Site Regrade Plan – Sheet 1	G
190433(81-83)-CENG-502	Site Regrade Plan – Sheet 2	G
190433(81-83)-CENG-503	Site Regrade Plan – Sheet 3	G
190433(81-83)-CENG-511	Site Section – Sheet 1	G
190433(81-83)-CENG-512	Site Section – Sheet 2	G
190433(81-83)-CENG-513	Site Section – Sheet 3	G
190433(81-83)-CENG-551	Retaining Wall Detail Plan – Sheet 1	G
190433(81-83)-CENG-552	Retaining Wall Detail Plan – Sheet 2	G
190433(81-83)-CENG-553	Retaining Wall Detail Plan – Sheet 3	G
190433(81-83)-CENG-601	Erosion & Sediment Control Plan – Sheet 1	G
190433(81-83)-CENG-602	Erosion & Sediment Control Plan – Sheet 2	G
190433(81-83)-CENG-603	Erosion & Sediment Control Plan – Sheet 3	G
190433(81-83)-CENG-611	Erosion & Sediment Control Details & Notes – Sheet 1	G
190433(81-83)-CENG-612	Erosion & Sediment Control Details & Notes – Sheet 2	G
190433(81-83)-CENG-701	Services Plan – Sheet 1	G
190433(81-83)-CENG-702	Services Plan – Sheet 2	G
190433(81-83)-CENG-703	Services Plan – Sheet 3	G
190433(81-83)-CENG-704	Services Plan – Sheet 4	G
190433(81-83)-CENG-705	Services Plan – Sheet 5	G
190433(81-83)-CENG-706	Services Plan – Sheet 6	G
190433(81-83)-CENG-707	Services Plan – Sheet 7	G

9 October 2024

7.

Flood Impact Assessment, revision 4, prepared by Torrent Consulting

23 September 2024

8.

Preliminary Site Investigation, revision 3, prepared by EP Risk

5 June 2024

9.

Flood Modelling (provided electronically to Council)

10.

Updated Stormwater Management Plan, revision F, prepared by ADW Johnson

September 2024

11.

Building Envelope Plans, prepared by ADW Johnson

Drawing No	Drawing Name	Rev
190433(JEN)-ESK-039 – Sheet 1 of 5	Potential Building Envelopes Overview Plan	D
190433(JEN)-ESK-039 – Sheet 2 of 5	Potential Building Envelopes Detail Plan 1	D
190433(JEN)-ESK-039 – Sheet 3 of 5	Potential Building Envelopes Detail Plan 2	D
190433(JEN)-ESK-039 – Sheet 4 of 5	Potential Building Envelopes Detail Plan 3	D
190433(JEN)-ESK-039 – Sheet 5 of 5	Potential Building Envelopes Detail Plan 4	D

14 October 2024

12.

Acid Sulfate Soil Management Plan prepared by EP Risk

15 October 2024

Class 1 Application Documents (not superseded and Tab references)

Tab

Document

Date

2.

Consent Letter from AVID Property Group Pty Ltd, AVID RESIDENTIAL ESTATES PTY LTD and Roslyn Maree Jensen

19 October 2020, 5 June 2023 and 7 July 2022

3.

Statement of Environmental Effects, prepared by ADW Johnson

5 June 2023

6.

Landscape Plans, prepared by ADW Johnson

Drawing No.	Drawing Name
LA001	Coversheet
LA002	Project Overview
LA101	General Arrangement Plan
LA102	Part Site Plan 1
LA103	Part Site Plan 2
LA104	Part Site Plan 3
LA200	Typical Section
LA300	Typical Details
LA400	Street Tree Imagery & Plant Schedules
LA401	Embankment Imagery & Plant Schedules
LA402	Marginal & Basin Imagery & Plant Schedules

Undated

8.

Hunter Water Stamped Plans (Detail plan sheet 1 – 7) reference number 80511

11 April 2023

9.

Revision 28 – Master Plan

14 February 2023

10.

Deposited Plans of Subdivision

11.

Certificates of Title:

Lot 4 DP 1222785

Lot 2425 DP 1224017

Lot 2531 DP 1224018

Lot 2726 DP 1237666

Lot 3001 DP 1264314

Lot 6121 DP 1268036

Lot 6131 DP 1268036

Lot 6140 DP 1284398

Lot 112 DP 734271

12.

Lot Width Table

14.

Traffic Impact Assessment, prepared by Intersect Traffic

22 February 2023

15.

Archaeological Due Diligence Assessment, prepared by McCardle Cultural Heritage

14 June 2022

16.

Aboriginal Heritage Impact Permit C0001352

10 September 2015

17.

Bushfire Assessment Report, prepared by Bushfire Planning Australia

8 May 2023

18.

Preliminary Geotechnical Assessment, prepared by EP Risk

28 February 2023

19.

White-bellied Sea-Eagle nest, Chisholm: Final Report prepared by Stephen Debus

16 December 2022

20.

DCP Compliance Table - Maitland City Wide Development Control Plan 2011

21.

Correspondence from DPE, Satisfactory Arrangements Certificate

30 June 2015

22.

Letter from Hunter Water – Requirements for your Development Application

14 April 2023

23.

Subsidence advisory consent - Remediation of Old Mine Workings

18 July 2022

24.

Cost Estimate

24 May 2023

RFI Documents

25.

Initial request for additional information from Council

11 August 2023

26.

Response to request for information prepared by ADW Johnson

12 October 2023

27.

Satisfactory Arrangements Certificate and letter from Department of Planning and Environment

Certificate dated 23 September 2023

28.

Submission from Addisons in response to RFI

11 October 2023

29.

Further request for information

26 September 2023

30.

Response cover letter prepared by AEP

24 November 2023

50. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment to the development application, in the agreed amount of $45,000, such amount to be paid within 28 days of the date of this order.

2. The appeal is upheld.

3. Development consent is granted to development application No. 2023/497 as amended for the Subdivision of Two Hundred & Eighty one (281) Residential Torrens Title Lots in 3 Stages with staged residue lots, including the construction and dedication of roads and drainage facilities, vegetation removal, bulk earthworks/regrading and retaining, landscaping and provision of services (including drainage, sewer, water, electrical, telecommunications, and gas) at 7 Caldera Street, 29 Stillwater Parade, 40 Goldring Street, 3 Caldera Street, 18 Darkmouth Street, 16 Darkmouth Street, 9 Rockmaster Street, Emperor Parade And 261 Settlers Boulevard, Chisholm, legally known as Lot 2 DP 1295677, Lot 6121 DP1268036, Lot 6140 DP1284398, Lot 6283 DP1295797, Lot 3001 DP1264314, Lot 2726 DP1237666, Lot 2531 DP1224018, Lot 2425 DP1224017, Lot 2426 DP124017 and Lot 4 DP1222785 subject to the conditions at Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A Part 1

Annexure A Part 2

**********

Decision last updated: 04 April 2025