Johnson Property Group Pty Ltd v Cessnock City Council

[2020] NSWLEC 1197

Land and Environment Court

New South Wales

Medium Neutral Citation:	Johnson Property Group Pty Ltd v Cessnock City Council [2020] NSWLEC 1197
Hearing dates:	Conciliation conference on 17 April 2020
Date of orders:	30 April 2020
Decision date:	30 April 2020
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	Refer to orders below at [8]
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Cessnock Local Environmental Plan 2011 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy (Koala Habitat Protection) 2019 State Environmental Planning Policy No 44—Koala Habitat Protection State Environmental Planning Policy No 55—Remediation of Land
Category:	Principal judgment
Parties:	Johnson Property Group Pty Ltd (Applicant) Cessnock City Council (Respondent)
Representation:	Counsel: C Gough (Solicitor) (Applicant) S Puckeridge (Solicitor) (Respondent)   Solicitors: Storey and Gough (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2019/26786
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings are an appeal brought by the applicant under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against the deemed refusal of Development Application No. 8/2018/859/1 (‘DA’) by Cessnock City Council (‘Council’).

2. According to Council’s statement of facts and contentions (filed 20 May 2019), the site is located at Ruby Street, Bellbird, and is more particularly described as Part Lot 1 DP327785. The site is part of a larger land holding, on which development for residential purposes is to occur in stages.

3. The DA sought consent for Torrens Title subdivision creating 103 residential lots and one residue lot, to occur in three stages. Consent for ancillary works was also sought, comprising: removal of vegetation, landscaping, bulk earthworks and drainage infrastructure works, construction of new roads, installation of associated servicing infrastructure including water, sewer, power and telecommunication services. The development is defined as integrated development under s4.46 of the EPA Act.

4. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (‘LEC Act’), which was held on 17 April 2020. I presided over the conciliation conference.

5. At the conciliation conference, the parties provided evidence of an 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 and granting development consent to the development application, subject to conditions.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it 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 DA. The parties indicate that the decision is one that the Court can make in the proper exercise of its functions and I so agree, in particular noting the following (having regard to Justification Statement provided by the parties by email to the Court dated 27 April 2020):

1. The development is integrated development because it requires the approvals listed immediately below, and general terms of approval have been issued by the relevant approval bodies and accommodated in the proposed conditions of consent:

• a bush fire safety authority, under s 100B of the Rural Fires Act 1997;

• a controlled activity approval under the Water Management Act 2000;

• a permit under s 90 of the National Parks and Wildlife Act 1974.

2. The development is permissible and does not contravene any development standards in the Cessnock Local Environmental Plan 2011. With respect to permissibility, and an original question in regard to the permissibility of certain stormwater detention works, the advice of the parties is noted that State Environmental Planning Policy (Infrastructure) 2007 (cl 111A) makes development for the purposes of a stormwater management system permissible with consent on the subject land notwithstanding the zoning. It is also considered that the detention basins have a dual purpose of being both for residential development and development for the purposes of a stormwater management system. Consequently, the basins are permissible in the zone and the contention is resolved.

3. The development application was notified in accordance with Council’s notification policy. Submissions were received. I am advised of the general content of the submissions. I am satisfied that Council has considered the submissions, and I have also taken them into consideration.

4. Having regard State Environmental Planning Policy No 55— Remediation of Land (‘SEPP 55’) and in particular cl 7, consideration has been given to whether the land is contaminated. A preliminary risk report has been prepared. This report, and further information supplied by the applicant, has resulted in Council being satisfied that considerations relating to contamination can be addressed through the imposition of a deferred commencement condition. Due consideration of contamination has occurred with respect to cl 7 of SEPP 55.

5. State Environmental Planning Policy No 44—Koala Habitat Protection (‘SEPP 44’) was repealed by cl 18 of State Environmental Planning Policy (Koala Habitat Protection) 2019 (‘SEPP Koala Habitat Protection’) with effect from 1 March 2020. The savings provisions at cl 15 of SEPP Koala Habitat Protection provide that a development application “made, but not finally determined, before the commencement of SEPP Koala Habitat Protection”, such as the subject application, must be determined as if SEPP Koala Habitat Protection had not commenced. In turn SEPP 44 is a consideration with respect to the application. There had been an earlier contention, which went to jurisdiction, in regard to the possibility of the land containing core koala habitat. Further research has demonstrated to Council’s satisfaction that the site does not constitute core koala habitat. On the basis of the statement from the parties in regard to this I am also satisfied that the site is not core koala habitat and that there is no prevention from granting consent to the development application under cl 8 of SEPP 44.

7. On the basis of the above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

8. The Court orders that:

1. The Appeal is upheld.

2. The Applicant is granted leave to rely on an amended application by including the following plans and materials as plans and materials relied upon for the purpose of the development application:

1. Drawing No. 239233(6)-PSK-013-A, by ADW Johnson dated 17 September 2019;

2. Drawing No. 239233(6)-TREE-001-A, by ADW Johnson dated 21 November 2019;

3. Statement of Environmental Effects, by ADW Johnson dated 22 November 2018;

4. Additional Stormwater Management & Flood Information, by ADW Johnson dated 14 May 2019.

3. Development application DA008/2018/859/1, being for staged residential subdivision of Lot 1 DP327785 to create 103 residential lots and 1 residue lot at Ruby Street, Bellbird, is approved subject to the conditions set out in Annexure “A”.

…………………………

P Walsh

Commissioner of the Court

Annexure A (386 KB)

Plans (10.1 MB)

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Decision last updated: 30 April 2020