Land and Environment Court New South Wales Medium Neutral Citation: Johnson Property Group v Cessnock City Council [2019] NSWLEC 1274 Hearing dates: Conciliation conference on 14 June 2019 Date of orders: 18 June 2019 Decision date: 18 June 2019 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The Applicant is given leave to amend the modification application by: (a) substituting the following plan as the plan relied upon for the purpose of the modification application Subdivision Plan prepared by Royal HaskoningDHV, Job Number PA1879; Dwg. PA1879-DA2-002, Rev. D, dated 28/5/19. (b) deleting the request to amend Condition 32 to require the upgrade of the Abbotsford Street road alignment and bridge upgrade as part of Stage 3B and substituting a request that the Note to Condition 32 be deleted. (c) deleting the request to amend Condition 60 as set out in the statement of environmental effects dated August 2018 prepared by ADW Johnson Pty Limited and substituting a request that the condition be amended as set out in condition 60 of Annexure "A" hereto. (2) The appeal is upheld. (3) Modification Application DA 8/2011/836/3 to amend Development Consent DA 8/2011/836/1 as amended, for the subdivision of land into 62 lots at Ruby Street, Bellbird being Lot 1 DP327785, Lot 1 DP328498 and Lot 1 DP597226 is approved subject to the conditions set out in Annexure "A" hereto. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Johnson Property Group (Applicant) Cessnock City Council (Respondent) Representation: Solicitors: C Gough, Storey & Gough Lawyers (Applicant) S Puckeridge, Lindsay Taylor Lawyers (Respondent) File Number(s): 2018/319751 Publication restriction: No Judgment 1. COMMISSIONER: The applicant seeks approval to modify Development Consent No. 2011/836 which authorised the subdivision of land at Ruby Street, Bellbird into 62 lots in three stages. The proposed modifications include minor amendments to the lot layout, the removal of stages of the development and the amendment of Section 7.11 contributions. 2. The proceedings have been brought to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) and 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 14 June 2019. I presided over the conciliation conference. 3. 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. This decision involved the Court upholding the appeal and granting consent to the amended modification application subject to conditions. 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 application. Before that can happen, I must be satisfied about any jurisdictional prerequisites. In this case, the parties have identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 4.55 of the EPA Act to modify consent. Based on the evidence, I am satisfied that the development to which consent as modified relates is substantially the same development as the development for which consent was originally granted as required by s 4.55(2)(a). 5. Accordingly, as the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 6. The Court orders: 1. The Applicant is given leave to amend the modification application by: 1. substituting the following plan as the plan relied upon for the purpose of the modification application Subdivision Plan prepared by Royal HaskoningDHV, Job Number PA1879; Dwg. PA1879-DA2-002, Rev. D, dated 28/5/19. 2. deleting the request to amend Condition 32 to require the upgrade of the Abbotsford Street road alignment and bridge upgrade as part of Stage 3B and substituting a request that the Note to Condition 32 be deleted. 3. deleting the request to amend Condition 60 as set out in the statement of environmental effects dated August 2018 prepared by ADW Johnson Pty Limited and substituting a request that the condition be amended as set out in condition 60 of Annexure "A" hereto. 1. The appeal is upheld. 2. Modification Application DA 8/2011/836/3 to amend Development Consent DA 8/2011/836/1 as amended, for the subdivision of land into 62 lots at Ruby Street, Bellbird being Lot 1 DP327785, Lot 1 DP328498 and Lot 1 DP597226 is approved subject to the conditions set out in Annexure "A" hereto. ……………………… S Dixon Senior Commissioner of the Court Annexure A (76.7 KB, pdf) Subdivision Plan (331 KB, 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: 18 June 2019