Kingshill Development No 1 Pty Ltd and Kingshill No 2 Pty Ltd v Port Stephens Council and Hunter and Central Coast Regional Planning Panel [2023] NSWLEC 1478

Land and Environment Court New South Wales

Medium Neutral Citation: Kingshill Development No 1 Pty Ltd and Kingshill No 2 Pty Ltd v Port Stephens Council and Hunter and Central Coast Regional Planning Panel [2023] NSWLEC 1478 Hearing dates: 20 February to 2 March 2023, 10 March 2023, 14 to 17 March 2023, 27 to 28 March 2023 Date of orders: 23 August 2023 Decision date: 23 August 2023 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1) Leave is granted to rely on amended plans and documents that amend Development Application 16-2018-772-1, as described in Exhibits P, Q and R, and parts of Exhibits A, B and D. (2) The appeal is dismissed. (3) Development Application 16-2018-772-1, relating to a concept proposal to define areas for residential precincts and conservation, and Stage 1 works to establish a conservation area and clear precinct areas for future development, on Lot 41 Deposited Plan 1037411, also known as 3221 Pacific Highway, Kings Hill, and Lot 4821 Deposited Plan 852073, also known as 35 Six Mile Road, Kings Hill is refused. (4) The exhibits are retained. Catchwords: DEVELOPMENT APPLICATION – staged development with concept proposal and first stage works – concept plan – establish a conservation area and future development footprint – assessed potential ecological and hydrological impact – threatened species impact assessment – insufficient satisfactory arrangements for designated State public infrastructure Legislation Cited: Biodiversity Conservation Act 2016, Sch 9 Biodiversity Conservation (Savings and Transition) Regulation 2017, Pt 7, cll 27, 28, 31 Environmental Planning and Assessment Act 1979, ss 4.5, 4.14, 4.15, 4.16, 4.22, 4.47, 5A, 5.16, 6.2, 8.7, 8.15, 78A, 79B, Pt 5 Environmental Planning and Assessment Regulation 2000, cll 49, 55 Fisheries Management Act 1994 Hunter Water Act 1991, s 51 Land and Environment Court Act 1979, s 39 Port Stephens Local Environmental Plan 2000, cll 9, 12, 13 Port Stephens Local Environmental Plan 2013, cll 2.3, 4.1, 5.10, 5.21, 6.1, 6.2, 6.3, 6.5, 6.6, 7.1, 7.2, 7.4, 7.6, 7.8, 7.9, 7.11 Rural Fires Act 1997, s100B State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 3.6, 3.7, 3.8, 3.9, 3.15 State Environmental Planning Policy (Planning Systems) 2021, s 20, Sch 6 s 2 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.7, 2.8, 2.10, 2.11, 4.6 State Environmental Planning Policy (Transport and infrastructure) 2021, ss 2.119, 2.120 Threatened Species Conservation Act 1995, ss 109, 110, 111, 112, Schs 1, 2, 3 Water Management Act 2000, s 91 Cases Cited: Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd (2021) 252 LGERA 221; [2021] NSWLEC 110 Ryan v Northern Regional Planning Panel (no 4) [2020] NSWLEC 55 The Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158 Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 Texts Cited: Land and Environment Court Practice Note – Class 1 Development Appeals NSW Department of Primary Industries, Threatened species assessment guidelines, February 2008 NSW Rural Fire Services, Planning for Bushfire Protection, November 2019 Port Stephens Communication and Engagement Strategy 2022 to 2027 Port Stephens Council Comprehensive Koala Plan of Management 2002 Port Stephens Development Control Plan 2014 Sydney Catchment Authority, Neutral or Beneficial Effect on Water Quality Assessment Guideline, January 2011 Category: Principal judgment Parties: Kingshill Development No 1 Pty Ltd (First Applicant) Kingshill No 2 Pty Ltd (Second Applicant) Port Stephens Council (First Respondent) Hunter and Central Coast Regional Planning Panel (Second Respondent) Representation: Counsel: T F Robertson SC with T To (First and Second Applicants) M Caban (Solicitor) (First Respondent) J Reid with L Nurpuri (Second Respondent)