Johnson Property Group Pty Limited v Cessnock City Council [2019] NSWLEC 1307

Land and Environment Court New South Wales

Medium Neutral Citation: Johnson Property Group Pty Limited v Cessnock City Council [2019] NSWLEC 1307 Hearing dates: Conciliation conference on 14 June 2019 Date of orders: 05 July 2019 Decision date: 05 July 2019 Jurisdiction: Class 1 Before: Dixon SC Decision: See orders at [8] below Catchwords: DEVELOPMENT APPLICATION – subdivision of land – conciliation conference – agreement between the parties – orders Legislation Cited: Cessnock Local Environmental Plan 2011 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Johnson Property Group Pty Limited (Applicant) Cessnock City Council (Respondent) Representation: Solicitors: C Gough, Storey & Gough (Applicants) S Puckeridge, Lindsay Taylor Lawyers (Respondent) File Number(s): 2019/26877 Publication restriction: No

Judgment 1. COMMISSIONER: The applicant, Johnson Property Group Pty Limited, has appealed against the Council's deemed refusal of a development application made pursuant to s 4.12 of the Environmental Planning and Assessment Act 1979 (EPA Act) for the staged Torrens title subdivision of land at Ruby Street, Bellbird being Lot 1 DP 597226 and Lot 1 DP 327785 to create 145 lots, 1 residue lot and ancillary works. 2. The appeal is brought under s 8.7 of the Environmental Planning & Assessment Act 1979 (EPA Act) and is based on an amended application. 3. The chronology of events leading to the amendments is outlined in the Council's Statement of Facts and Contentions (SOFC) along with the relevant planning controls. The SOFC describes the site as being part of a release area known as Bellbird North which is located to the north of Bellbird Village. It records that the land is zoned part R2 Low Density Residential, part SP2 Infrastructure and part RE 1 Public Recreation under the Cessnock Local Environmental Plan 2011. The proposed residential lots on the site are wholly contained within the R2 Low Density Residential zoned land, and the detention basins, required for the stormwater management, are with the RE1 zone. The proposal is permissible with consent. 4. The DA was publicly exhibited and no submission was received. The RFS and NRAR have provided their General Terms of Approval which have been incorporated into the consent. 5. Before the matter proceeded to hearing, the matter was referred to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) on 14 June 2019. I was the presiding Commissioner and at that time I was told that the parties had 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 development consent to the amended development application subject to conditions. 6. 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. I am told by the parties there are no outstanding jurisdictional prerequisites that must be satisfied before this function can be exercised and I am satisfied of that fact. 7. 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. 8. The Court orders: 1. The Applicant is given leave to amend the development application by substituting the following plans as the plans relied upon for the purpose of the development application: Proposed Subdivision Cover Sheet prepared by ADW Johnson, Dwg ref: 239233P(3)-PSK-001-B, dated 14.05.2019. Proposed Subdivision Showing Stages plan prepared by ADW Johnson, Dwg ref:239233P(3)-PSK-004-C, dated 18.06.2019. Proposed Stage 1 plan prepared by ADW Johnson, Dwg ref:239233P(3)-PSK-005-B, dated 14.05.2019. Proposed Stage 2 plan prepared by ADW Johnson, Dwg ref:239233P(3)-PSK-006-B, dated 14.05.2019. Proposed Stage 3 plan prepared by ADW Johnson, Dwg ref:239233P(3)-PSK-007-B, dated 14.05.2019. Proposed Stage 5 plan prepared by ADW Johnson, Dwg ref:239233P(3)-PSK-008-B, dated 14.05.2019. Proposed Residual Areas plan prepared by ADW Johnson, Dwg ref:239233P(3)-PSK-020-B, dated 14.05.2019. Proposed APZ Buffer for Proposed Subdivision plan prepared by ADW Johnson, Dwg ref:239233P(3)-PSK-021-B, dated 14.05.2019. Proposed Subdivision Bushfire Buffer plan prepared by ADW Johnson, Dwg ref:239233P(3)-PSK-022-B, dated 14.05.2019. Proposed Shared Pathway Plan prepared by ADW Johnson, Dwg ref:239233P(3)-PSK-023-B, dated 14.05.2019. Proposed Land Dedication Plan prepared by ADW Johnson, Dwg ref:239233P(3)-PSK-009-B, dated 18.06.2019. 1. The Applicant is given leave to amend the development application by including the Addendum to Stormwater Details prepared by ADW Johnson dated 14 May 2019. 2. The Applicant is given leave to amend the development application by including the Ecological Assessment Addendum Letter prepared by MJD Environmental Pty Limited dated 14 May 2019. 3. The Applicant is given leave to amend the development application by including the Interim Advice 1 – Ruby Street, Bellbird, NSW: Review of Preliminary Assessment audit advice prepared by Arcadis Australia Pacific Pty Limited dated 31 May 2019. 4. The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) in the sum of $3,500.00 within 28 days. 5. The appeal is upheld. 6. Development Application DA 8/2018/650/1 for the subdivision of land into 154 residential lots, 1 residue lot and ancillary works in four stages at Ruby Street, Bellbird being Lot 1 DP597226 and Lot 1 DP327785 is approved subject to the conditions set out in Annexure "A" hereto.