Land and Environment Court New South Wales Medium Neutral Citation: Baileys Lane Pty Ltd v Cessnock City Council [2019] NSWLEC 1336 Hearing dates: Conciliation conference on 28 May 2019 Date of orders: 16 July 2019 Decision date: 16 July 2019 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders: (1) Leave is granted to the Applicant to amend the application, as set out in Annexure A, to modify the Development Consent granted by the Respondent on 2 May 2018 ("the Development Consent") for a twenty four (24) lot subdivision of the land being Lot 790 Deposited Plan 257363 known as 65 Baileys Lane Abermain NSW including the construction of a new internal road, stormwater drainage, earthworks and vegetation removal. (2) The appeal is upheld and the modifications sought to the Development Consent are approved. (3) As a consequence of Order (2) above, the Development Consent is now subject to the modified conditions as set out in Annexure B. Catchwords: MODIFICATION APPLICATION – conditions of development consent – contributions - 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: Baileys Lane Pty Ltd (Applicant) Cessnock City Council (Respondent) Representation: Solicitors: G Christmas, Apex Planning & Environment Law (Applicant) D Grant, Sparke Helmore Lawyers (Respondent) File Number(s): 2018/309387 Publication restriction: No Judgment 1. COMMISSIONER: This appeal concerns an application by Baileys Lane Pty Ltd to modify a development consent granted by Cessnock City Council for a twenty-four lot subdivision of the land known as 65 Baileys Lane Abermain, including the construction of a new internal road, stormwater drainage, earthworks and vegetation removal. The application seeks to amend or delete a number of conditions of the development consent (outlined in Annexure A), principally concerning the payment of developer contributions and the carrying out of works on existing roads. Following the expiry of the period after which a modification application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal, outlined in [6] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. 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 28 May 2019. I presided over the conciliation conference. 3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for the amendment of the modification application and the grant of that application, pursuant to s 4.55(2) of the EPA Act. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the reason that quantitatively there is no change to the subdivision the subject of the development consent, and qualitatively the change to the conditions does not change the "essence" of the development as the changes concern developer contributions and bonds for improvement of existing roads (rather than changes to the approved development). 4. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 5. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under s 4.55(3) and s 4.15(1) of the EPA Act. 6. The Court orders that: 1. Leave is granted to the Applicant to amend the application, as set out in Annexure A, to modify the Development Consent granted by the Respondent on 2 May 2018 ("the Development Consent") for a twenty-four (24) lot subdivision of the land being Lot 790 Deposited Plan 257363 known as 65 Baileys Lane Abermain NSW including the construction of a new internal road, stormwater drainage, earthworks and vegetation removal. 2. The appeal is upheld and the modifications sought to the Development Consent are approved. 3. As a consequence of Order (2) above, the Development Consent is now subject to the modified conditions as set out in Annexure B. ……………………… J Gray Commissioner of the Court Annexure A (47.8 KB, pdf) Annexure B (111 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: 16 July 2019