Land and Environment Court New South Wales Medium Neutral Citation: Stanford Main No. 2 Pty Ltd v Cessnock City Council [2021] NSWLEC 1521 Hearing dates: Conciliation conference on 30 August 2021 Date of orders: 6 September 2021 Decision date: 06 September 2021 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is upheld. (2) Development Application No. 8/2020/20648/1, for a two lot boundary adjustment and heritage conservation works to existing buildings on the land at 53 and 63 Milfield Road, Paxton (Lots 3 and 4 in DP 1181682) is approved, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – boundary adjustment between existing lots – local heritage item – conciliation conference – agreement between the parties – orders Legislation Cited: Cessnock Local Environmental Plan 2011, cll 2.6, 4.1, 5.10 Environmental Planning and Assessment Act 1979, s 4.16 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy No 55—Remediation of Land, cl 7 Texts Cited: NSW Rural Fire Service, Planning for Bushfire Protection, 2019 Category: Principal judgment Parties: Stanford Main No. 2 Pty Ltd (Applicant) Cessnock City Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) L Mulligan (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2020/359057 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the conditions of consent of Development Consent No. 8/2020/20648/1, for a two lot boundary adjustment and heritage conservation works to existing buildings on the land (the proposal) at 53 and 63 Millfield Road, Paxton (Lots 3 and 4 in DP 1181682) (the site) by Cessnock City Council (the Council). 2. 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 August 2021. I presided over the conciliation conference. 3. The Council consented to the applicant amending the application and the amended application was lodged on the NSW planning portal, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, prior to the s 34 conciliation conference and the amended application was filed with the Court. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 4. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 5. There are jurisdictional preconditions to the exercise of power to grant development consent for the proposal. Jurisdictional pre-conditions to the grant of development consent 1. The site is zoned R5 Large Lot Residential pursuant to the Cessnock Local Environmental Plan 2011 (LEP 2011). I am satisfied that the proposal is consistent with the objectives of the R5 zone, which are: • To provide residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality. • To ensure that large residential lots do not hinder the proper and orderly development of urban areas in the future. • To ensure that development in the area does not unreasonably increase the demand for public services or public facilities. • To minimise conflict between land uses within this zone and land uses within adjoining zones. 1. Development consent is required for subdivision pursuant to cll 2.6(1) and 5.10(2)(f) of LEP 2011. 2. The site includes elements of a local heritage item (Item 215, Pt 1, Sch 5 to LEP 2011) described as, "Collieries of the South Maitland Coalfields/Greta Coal Measures". Clause 5.10(4) of LEP 2011 requires the consent authority, or the Court exercising the functions of the consent authority, to consider the effect of the proposal on the heritage significance of the item. The application included a Heritage Impact Statement and Schedule of Conservation Works. I am satisfied, on the bases of those findings and commitments in those documents and the conditions of consent, that the proposal will contribute to conserving the heritage significance of the local heritage item. 3. The site has an area of 8.056 hectares (Ha). The minimum lot size development standard for the site is 4 Ha (cl 4.1 and Lot Size Map - Sheet LSZ_006D of LEP 2011). The resulting lots from the proposed boundary adjustment comply with the minimum lot size development standard for the site as each lot will have an area of 4.028 Ha. 4. Pursuant to cl 7(1) of the State Environmental Planning Policy No 55 – Remediation of Land, I accept the Council's submission that the site has been inspected and no evidence of contamination has been observed and that there is no historical evidence of the site being used for a purpose which would result in the land being contaminated. 5. The site is identified as Bushfire Prone Land Category 1 and Category 3. A Bushfire Hazard Assessment confirmed that the proposal can meet the requirements of Planning for Bushfire Protection. The application was referred to the NSW Rural Fire Services and the general terms of approval have been incorporated into the conditions of consent at Annexure A. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. 8/2020/20648/1, for a two lot boundary adjustment and heritage conservation works to existing buildings on the land at 53 and 63 Millfield Road, Paxton (Lots 3 and 4 in DP 1181682) is approved, subject to the conditions of consent at Annexure A. ____________ Susan O'Neill Commissioner of the Court Annexure A (223332, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 September 2021