Australia, June 7 -- New South Wales Land and Environment Court issued text of the following judgement on May 6:

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Cessnock City Council, of Development Application 8/2023/270/1 which seeks consent for a 29 lot subdivision and associated works at 35, 31 and 0 Government Road, Cessnock. The site is legally described as Lot 35 DP 1288491 (Lot 35), Lot 34 DP 1004648 (Lot 34) and Lot 2 DP 1067096 (Lot 2).

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. 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 7 and 27 March 2025. I presided over the conciliation conference.

4. After the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application. These amendments included:

1) Increase the number and size of Asset Protection Zones (APZs) and the erection of a 1.8m colorbond fence on the southern boundary of Lot 34

2) The provision of a flood access report

3) Amended civil engineering drawings

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that decision is one 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties outlined in a jurisdictional note, and from this I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the owners of the land. The application as amended now includes works to the following land:

1) 31 Government Rd, Cessnock NSW 2325 (LOT: 2 DP: 1067096)

2) 35 Government Rd, Cessnock NSW 2325 (LOT: 35 DP: 1288491);

3) 33 Government Rd, Cessnock NSW 2325 (LOT 36 DP 1288491);

4) 0 Government Rd, Cessnock NSW 2325 (LOT: 34 DP: 1004648); and

5) 29 Government Rd, Cessnock NS2 2325 (LOT 1 DP: 1067096).

8. The application was adequately notified between 9 and 23 May 2023. Amended plans were also notified between 3 October and 17 October 2023. No submissions were received during either period.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1968f8f646ebf235044eeaad)

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