Plenty Company Pty Ltd v Coffs Harbour City Council

[2025] NSWLEC 1430

Land and Environment Court

New South Wales

Medium Neutral Citation:

Plenty Company Pty Ltd v Coffs Harbour City Council [2025] NSWLEC 1430

Hearing dates:

Conciliation conference on 13 June 2025

Date of orders:

18 June 2025

Decision date:

18 June 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. 0364/23DA for the establishment and operation of a temporary asphalt plant at 55 Englands Road, North Boambee Valley for the purpose of producing up to 200,000 tonnes of asphalt per year, is determined by the refusal of consent.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act1979, ss 4.10, 4.16, 8.8, 8.13

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, Sch 3, s 38

Category:

Principal judgment

Parties:

Plenty Company Pty Ltd ACN 638075359 (Applicant)
Coffs Harbour City Council (First Respondent)
Colas New South Wales Pty Ltd (Second Respondent)

Representation:

Counsel: N Nadj (Applicant)
J Ede (First Respondent)
A Chryssochoides (Second Respondent)

Solicitors:
Scheib Legal (Applicant)
Wilshire Webb Staunton Beattie (First Respondent)
Piper Alderman (Second Respondent)

File Number(s):

2024/231703

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise from an appeal by an objector of a designated development application, for which consent was granted by Coffs Harbour City Council. Development Application 0364/23DA was made by Colas NSW Pty Ltd, seeking consent for the establishment and operation of a relocatable asphalt plant for the purpose of producing up to 200,000 tonnes of asphalt per year on Lot 2 DP 717056, known as 55 New Englands Road, North Boambee Valley.

2. The proposed development is designated development pursuant to s 4.10 of the Environmental Planning and Assessment Act1979 (EPA Act), and Sch 3, Pt 2 s 8 of the Environmental Planning and Assessment Regulation 2021, as it is a bitumen pre-mix and hot mix facility with an intended production capacity of more than 30000 tonnes per year, and is located within 250 metres of three residential properties not associated with the development.

3. These proceedings have been brought to the Court pursuant to s 8.8 of the EPA Act as an appeal by an objector of a designated development application. As required under s 8.8(2), the applicant, Plenty Company Pty Ltd (Plenty Company), made a submission by way of objection on 9 February 2023, which was during the public exhibition period of the development application of between 12 January and 9 February 2023.

4. The Council determined the application by way of consent subject to conditions on 30 May 2024, and it is this determination that Plenty Company is appealing.

5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 13 June 2025. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings, which involved the Court upholding the appeal and determining development application by way of refusal. Pursuant to s 8.13(1) of the EPA Act, the consent ceased to have effect upon the lodgement of this appeal and so, pursuant to s 8.13(4) the effect of this decision is that the consent continues to have no effect.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. In this instance, the parties’ decision involves the Court exercising the function under. s 4.16 of the EPA Act to refuse consent of the development application. As the decision results in the refusal of the application, beyond the provisions already noted, there are no further jurisdictional prerequisites that must be satisfied before this function can be exercised.

Conclusion

7. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, and subsequently, 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:

1. The appeal is upheld.

2. Development Application No. 0364/23DA for the establishment and operation of a temporary asphalt plant at 55 Englands Road, North Boambee Valley for the purpose of producing up to 200,000 tonnes of asphalt per year, is determined by the refusal of consent.

E Washington

Commissioner of the Court

**********

Decision last updated: 18 June 2025