Presland v Cessnock City Council

[2025] NSWLEC 1362

Land and Environment Court

New South Wales

Medium Neutral Citation:

Presland v Cessnock City Council [2025] NSWLEC 1362

Hearing dates:

Conciliation conference 20 May 2025

Date of orders:

20 May 2025

Decision date:

20 May 2025

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. 8/2022/1085/1 PAN-288075 for a dwelling, detached shed and swimming pool at Lot 4 DP 541198 known as 860 Old Maitland Road, Bishops Bridge, is determined by a grant of consent subject to conditions contained in Annexure A.

Catchwords:

APPEAL – appeal against grant of development consent subject to conditions – dwelling house – conciliation conference – agreement reached – orders made

Legislation Cited:

Biodiversity Conservation Act 2016

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Cessnock Local Environmental Plan 2011, cll 4.2A, 5.16, 5.21, 7.2, 7.14, 7.15

Environmental Planning and Assessment Regulations 2021, s 27

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4, s 4.9

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

Cases Cited:

McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category:

Principal judgment

Parties:

Mark Allyn Presland (Applicant)
Cessnock City Council (Respondent)

Representation:

Counsel:
P Jayne (Solicitor) (Applicant)
G Long (Solicitor) (Respondent)

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

File Number(s):

2024/431006

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal against the determination of Cessnock City Council to grant development consent for the construction of a dwelling house at 860 Old Maitland Road, Bishops Bridge, subject to conditions. The applicants were dissatisfied with conditions 9 and 12A, which required the registration of a positive covenant for the protection of native vegetation and the preparation of a Vegetation Management Plan, prior to the issue of a construction certificate. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [8] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 20 May 2025. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement reflects that which was filed on 12 May 2025.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent that require the public positive covenant over part of the site (rather than the whole site), and that allow the applicants time and flexibility concerning the implementation of the Vegetation Management Plan. The conditions also contain some other changes that cause them to differ from those that formed part of the Council’s determination the subject of the appeal. The signed agreement is supported by a Jurisdictional Statement (provided on 20 May 2025) that sets out a number of jurisdictional pre-requisites to the grant of development consent (the Statement). I have considered the contents of the Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the respondent’s Record of Assessment updated on 8 May 2024 with a peer review on 20 May 2024 (Final Record of Assessment). Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

1. The development works are for the purposes of a dwelling house, which is a permissible use in the RU2 Rural Landscape zone in which the site is located, pursuant to the Cessnock Local Environmental Plan 2011 (CLEP).

2. The proposed development complies with the minimum lot size for the construction of a dwelling house, which applies pursuant to cl 4.2A of the CLEP.

3. Based on the proposed location of the dwelling house and the surrounding land uses, I have taken into account the matters in cl 5.16(4) of the CLEP.

4. Clause 5.21 of the CLEP, concerning flood planning, applies to the site, and development consent must not be granted unless the Court, exercising the functions of the consent authority, is satisfied of the matters in cl 5.21(2). The development application was accompanied by a Flood Risk Assessment prepared by Torrent dated 18 December 2023 and a Flood Levels Survey Plan dated 4 July 2023. Based on the contents of those documents and the Final Record of Assessment, I have considered the matters in cl 5.21(3) of the CLEP and I am satisfied of the matters in cl 5.21(2).

5. The development application includes earthworks for the creation of a building pad for raising the dwelling floor level above natural ground level, as well as minor excavation for the pool. Based on the Statement of Environmental Effects dated 2024, the construction notes in the Section plan DA04 dated 22 March 2024, the sedimentation plan dated 4 July 2023 and the waste management plan, I have considered the matters set out in cl 7.2(3) of the CLEP.

6. Based on the Final Record of Assessment, I am satisfied that the essential services required by cl 7.14(2) are either presently available or will be available when required, and that the proposed onsite sewage management system will avoid adverse environmental impacts as required by cl 7.15(4).

7. Consistent with the requirements of s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021), the development application is accompanied by the BASIX certificate dated 20 March 2024.

8. Section 4.14 of the EPA Act applies to the site, as it is mapped as bush fire prone land. Based on the Updated Bushfire Threat Report dated February 2024 and the recommended conditions issued by the NSW RFS on 8 April 2024, I am satisfied that the development conforms to the specifications and requirements of the Planning for Bush Fire Protection 2019, as required by s 4.14(1)(a).

9. The proposed development includes the clearing of vegetation, but, based on the Updated Ecological Assessment dated March 2024, a biodiversity development assessment report is not required pursuant to the Biodiversity Conservation Act 2016, and there are no candidate species for which a serious and irreversible impact could arise.

10. Chapter 4 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), which concerns koala habitat protection, applies to the site. Based on the Updated Ecological Assessment dated March 2024, I am satisfied that the development is likely to have low or no impact on koalas or koala habitat, in satisfaction of s 4.9(3) of the SEPP B&C.

11. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of being used as uncleared fringe lands to farming purposes, it is unlikely to be contaminated.

12. Pursuant to the respondent’s Community Participation Plan, the development application was not required to be notified.

6. Having reached the state of satisfaction that the decision is one that the Court could have made in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

8. The Court orders that:

1. The appeal is upheld.

2. Development Application No. 8/2022/1085/1 PAN-288075 for a dwelling, detached shed and swimming pool at Lot 4 DP 541198 known as 860 Old Maitland Road, Bishops Bridge, is determined by a grant of consent subject to conditions contained in Annexure A.

J Gray

Commissioner of the Court

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Annexure A (193 KB, pdf)

Decision last updated: 20 May 2025