BMF Prosperity Pty Ltd v Cessnock City Council

[2025] NSWLEC 1135

Land and Environment Court

New South Wales

Medium Neutral Citation:

BMF Prosperity Pty Ltd v Cessnock City Council [2025] NSWLEC 1135

Hearing dates:

Conciliation conferences held on 30 October and 12 November 2024

Date of orders:

11 March 2025

Decision date:

11 March 2025

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The request pursuant to cl 4.6 of the Cessnock Local Environmental Plan 2011 to vary the development standard for the minimum subdivision lot size contained within cl 4.1 thereof, as prepared by hdb planning design development dated February 2025, is upheld.

(2) The appeal is upheld.

(3) Development consent is granted to development application DA8/2023/335/1, as amended, for a 2 into 14 lot Torrens title subdivision at 17 White Street (legally known as Lot 304 DP257424) and 88 Florence Street (legally known as Lot 303 DP257424), Greta NSW, subject to the conditions of consent in Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 4.17, 4.47, 8.3, 8.7, 8.10, Pt 4, Div 4.8, Sch 1

Land and Environment Court Act 1979, s 34

Roads Act 1993

Rural Fires Act 1997, s 100B

Water Management Act 2000, s 91

Cessnock Local Environmental Plan 2011, cll 2.2, 2.3, 2.7, 4.1, 4,6, 5.16, 5.21, 7.2

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

Texts Cited:

Cessnock Development Control Plan 2010

Category:

Principal judgment

Parties:

BMF Prosperity Pty Ltd (First Applicant)
88 Florence Pty Ltd (Second Applicant)
Cessnock City Council (Respondent)

Representation:

Counsel:
P Jayne (Solicitor) (Applicant)
A McKelvey (Solicitor) (Respondent)

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

File Number(s):

2024/167602

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 conditions contained in the development consent issued by the Cessnock City Council for Development Application No 8/2023/335/1 (the DA).

2. These proceedings relate initially to the Respondent’s refusal of the DA on 29 November 2023. The DA was lodged with Cessnock City Council (Council) on 8 May 2023. The DA sought development consent pursuant to Pt 4 of the EPA Act for a 2 into 15 lot Torrens title subdivision at 17 White Street (legally known as Lot 304 DP257424) and 88 Florence Street (legally known as Lot 303 DP257424), Greta NSW (the site).

3. On 12 March 2024 the Applicants lodged an application for review of the Respondent’s decision to refuse the DA pursuant to s 8.3(1) of the EPA Act (Review Application). The parties advise that these proceedings were commenced on 6 May 2024, within the six-month appeal period pursuant to s 8.10 of the EPA Act.

4. The parties advise that during the period of the Respondent’s assessment of the Review Application, the Applicants made amendments to the DA. On 22 August 2024, following consideration of the Review Application, Council granted development consent to the amended DA, subject to conditions.

5. The Application for Review pursuant to s 8.7 of the EPA Act had already been lodged with the Court on 6 May 2024.

6. The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 21 June 2024.

7. The Applicants filed their Statement of Facts and Contentions (Applicant’s SOFAC) on 3 October 2024. In this document the Applicant advised the Court that the development consent for the DA had been issued and that the Applicant was contesting Condition 9 and Condition 15 of this development consent.

8. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30 October 2024. I presided over the conciliation conference, which commenced with an onsite view, attended by two submitters who made verbal submissions.

9. Following discussions before and during the conciliation conference, the parties advised that they have resolved the issues relating to these two contested conditions. An amended agreement under s 34(3) of the LEC Act was filed with the Court on 12 February 2025. The agreement is supported by an amended agreed jurisdictional statement provided to the Court on 14 February 2025. The plans for the amended DA were lodged with the Court on 24 February 2025.

10. The parties specified in the s 34 agreement that the Court issue the development consent with the deletion of Condition 9 and the imposition of a new Condition 9A (rather than as a modification of the DA).

11. 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.

12. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA (with amended conditions of consent).

13. 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

Environmental Planning and Assessment Act 1979

Owner’s consent

14. The DA was lodged with the consent of the First and Second Applicants who are owners of the site as tenants in common.

Community Participation (Sch 1, Div 2, subs 7(1) EPA Act)

15. The DA was publicly exhibited between 24 May 2023 and 22 June 2023. Three submissions were received raising concerns about the proposed development. Two of the submitters made submissions on the proposed development at the on-site view for the s 34 conciliation conference.

Integrated Development

16. The parties advise that the proposed development is integrated development for the purposes of Div 4.8 of the EPA Act because it requires a Bushfire Safety Authority under s 100B of the Rural Fires Act 1997 and a controlled activity approval under s 91 of the Water Management Act 2000. Section 4.47(2) of the EPA Act provides that the consent authority must obtain General Terms of Approval (GTAs) from any relevant approval body before granting development consent. Section 4.47(3) provides that any consent granted must be consistent with any GTAs.

17. GTAs were issued by the NSW Rural Fire Service (RFS) on 16 June 2023 and by the Department of Planning and Environment – Water (DPE Water) on 23 June 2023. The parties advise that RFS and DPE Water have confirmed that the GTAs issued continue to apply to the amended DA. The GTAs are attached to the Development Consent, which is consistent with those terms.

Conditions

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

Cessnock Local Environmental Plan 2011

19. The Cessnock Local Environmental Plan 2011 (the LEP) applies to the site and to the proposed development. Under the LEP provisions, the site is zoned R5 Large Lot Residential Development pursuant to cl 2.2 of the LEP; and

1. The proposed development is permitted with consent under cl 2.3 of the LEP;

2. Demolition is permitted with consent under cl 2.7 of the LEP;

3. The parties agree that the DA is consistent with the R5 Large Lot Residential Development zone objectives pursuant to cl 2.3 of the LEP;

4. 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.

20. Clause 4.1 of the LEP provides that the size of any lot resulting from subdivision is not to be less than the minimum lot size, as shown on the Lot Size Map in the LEP. All of the proposed lots, except Lot 213, comply with the minimum lot size of 2,000m2 in the R5 zone; and

1. An application to vary the minimum subdivision lot size development standard under cl 4.6 of the LEP prepared by hdb planning design development dated February 2025 was submitted with the amended DA. The parties advise that this statement demonstrates that compliance with the minimum subdivision lot size standard is unreasonable or unnecessary in the circumstances of this case and that there are sufficient environmental planning grounds to justify contravening the development standard;

2. I am satisfied that the Applicant’s amended cl 4.6 written request is well founded and that the variation to the minimum subdivision lot size development standard is acceptable noting that:

1. The proposed Lot 213 has been designed around the existing significant structures on the site (a house with a double garage, inground pool, and landscaped areas). The area of 1834 m² for proposed Lot 213 has been considered sufficient, allowing the existing structures to be sited comfortably without compromising the setbacks, car parking, public open space (POS), and other requirements under the DCP;

2. The proposed variation to the minimum lot size for one lot will not create any additional environmental impacts; and

3. There are urban services available to the site from the established Greta township.

4. I am satisfied that compliance with the minimum subdivision lot size development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP because the proposed development achieves the objectives of the minimum subdivision lot size development standard notwithstanding the minimum subdivision lot size not being met for one lot in the proposed subdivision, for the reasons provided within the Applicant’s written request, which I adopt;

5. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the minimum subdivision lot size development standard, as required under cl 4.6(3)(b) of the LEP, for the following reasons:

1. The subdivision has been designed considering the environmental constraints associated with the site i.e. flooding, existing vegetation, and the water dam, to achieve the most sustainable outcome for the site;

2. the proposed variation is only 8.3% for one lot in the proposed 14 lot subdivision, which is considered minimal and will not impose any additional environmental impacts on the area; and

3. The proposed subdivision will serve to meet future housing demand in the area, utilising the existing urban infrastructure and services already available to the site;

6. Approval of the proposed development will be in the public interest for the reasons provided above (at [20(2)(e)] above), and because the proposed development is consistent with the objectives for the minimum subdivision lot size development standard and for development within the R5 – Large Lot Residential zoning of the subject site, for reasons provided within the Applicant’s written request, which I also adopt.

21. Clause 5.16 of the LEP provides the matters a consent authority is to take into account in determining whether to grant development consent to development on R5 zoned land for the purposes of subdividing the land which is to be used for the purposes of a dwelling.

22. Clause 5.21 of the LEP provides circumstances in which development consent cannot be granted if the subject land is within a flood planning area. Part of the Site is mapped as a flood planning area. The Respondent advises that it is satisfied the proposed development complies with cl 5.21(2) of the LEP.

23. Clause 7.2(3) provides the matters that a consent authority must consider before granting development consent for earthworks.

24. The parties advise generally that:

1. To the extent merit issues are raised in the Respondent’s SOFAC (filed 21 June 2024) they have been satisfactorily addressed; and

2. The parties agree that the merit issues raised in the Applicants’ SOFAC (filed 3 October 2024) about Condition 9 have been addressed by the amended Condition 9A.

State Environmental Planning Policy (Resilience and Hazards) 2021

25. The parties have advised that:

1. The Respondent has considered whether the land is contaminated and whether it requires remediation under s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021; and

2. In relation to any potential contamination of the land, the Applicant relies on the Soil Assessment, prepared by ESP Environmental Safety Professionals, Job No J46562, dated 3 June 2022.

Roads Act 1993

26. The amended Condition 9A relates to road works on Florence Street, a local road, and the parties advise that Council is the relevant roads authority under the Roads Act 1993.

Cessnock Development Control Plan 2010

27. In granting the original development consent, the Respondent also considered the controls contained in the Cessnock Development Control Plan 2010 and advised that it was satisfied the proposed development could be approved subject to conditions.

Conclusion and orders

28. As the parties’ decision is within the Court’s power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with the parties’ decision.

29. The Court orders that:

1. The request pursuant to cl 4.6 of the Cessnock Local Environmental Plan 2011 to vary the development standard for the minimum subdivision lot size contained within cl 4.1 thereof, as prepared by hdb planning design development dated February 2025, is upheld.

2. The appeal is upheld.

3. Development consent is granted to development application DA8/2023/335/1, as amended, for a 2 into 14 lot Torrens title subdivision at 17 White Street (legally known as Lot 304 DP257424) and 88 Florence Street (legally known as Lot 303 DP257424), Greta NSW, subject to the conditions of consent in Annexure A.

……………………….

G Kullen

Acting Commissioner of the Court

Annexure A

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Decision last updated: 11 March 2025