Covercopy Pty Limited v Cessnock City Council [2011] NSWLEC 1136

Land and Environment Court New South Wales

Medium Neutral Citation: Covercopy Pty Limited v Cessnock City Council [2011] NSWLEC 1136 Hearing dates: 10 & 11 May 2011 Decision date: 27 May 2011 Jurisdiction: Class 1 Before: Morris C Decision: 1. The appeal is dismissed. 2. The application to modify Development Consent 8/2003/1737 is refused; 3. The exhibits, other than exhibit F and 6 are returned. Catchwords: Modification; subdivision; noise; dust; need for buffer area. Legislation Cited: Environmental Planning and Assessment Act 1979; Conveyancing Act 1919; Cessnock Local Environmental Plan 1989; Cessnock Development Control Plan 2006; State Environmental Planning Policy (Exempt and Complying Development Codes) 2008; Protection of the Environment Operations Act 1979. Cases Cited: Cooper v Wollondilly Shire Council [2004] NSWLEC 145; Bailey v Oberon Shire Council [2006] NSWLEC 815; Zhang v Canterbury City Council (2001) 115 LGERA 373 Texts Cited: Development Control Plan No. 43; Approved Methods for the Modelling and Assessment of Air Pollutants in New South Wales. Category: Principal judgment Parties: Covercopy Pty Limited (Applicant) Cessnock City Council (Respondent) Representation: G Williams (Applicant) MRM Thompson Norrie

J Cole (Respondent) HWL Ebsworth Lawyers File Number(s): 10960 of 2010

Judgment 1This is an appeal pursuant to the provisions of s97AA of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Cessnock City Council (the council) of an application made under s96(2) of the Act to modify development consent 8/2003/1737 (the consent) granted by the council on 16 November 2004 for the staged subdivision of land, being Lot 2 DP 553057, into 50 residential lots and a drainage reserve lot. 2The council, on 19 December 2005, modified the consent to alter the lot layout through the consolidation of approved lots 38 and 39 and the creation of one additional residential lot. Other modifications, not relevant to the proceedings, have also been approved. 3The application before the Court seeks to remove condition 1 of the Stage 2 consent conditions and to reconfigure the ten lots within that stage to create six lots for immediate release for residential dwelling houses and a residue lot. Condition 1 of the stage 2 conditions prevented the release of those ten lots until such time as the concrete batching works on adjacent land to the west have ceased operation. The reason the council gave for this condition is to ensure that future residents are not exposed to undue noise. At the time of determining the application, the council was aware that the operators of the plant had obtained development consent to relocate the facility to Tunnel Road and estimated that would occur within 12 months, noting that the timing was dependant upon progress of construction and dealings with other authorities, particularly the RTA.