Access Strata Pty Ltd v Central Coast Council - [2024] NSWLEC 1402

Land and Environment Court

New South Wales

Medium Neutral Citation: Access Strata Pty Ltd v Central Coast Council [2024] NSWLEC 1402
Hearing dates: Conciliation Conference 21 May, 13 June and 3 July 2024
Date of orders: 16 July 2024
Decision date: 16 July 2024
Jurisdiction: Class 1
Before: Targett C
Decision:
The Court orders that:
(1) The applicant is to pay the respondent’s costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.
(2) The appeal is upheld.
(3) Development consent is granted to Development Application No. DA/1847/2023, as amended, for the demolition of existing structures, amalgamation of two land parcels, removal of identified trees, and the construction of a single storey 85 place centre based child care facility with basement level parking on land legally described as Lot 22, Lot 23 and Lot 24 in Deposited Plan 21348, subject to the conditions at Annexure A.

Catchwords:
APPEAL – Development application - child care centre - conciliation conference – agreement between the parties - orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.10, 8.11, 8.14, 8.15
Land and Environment Court Act 1979, ss 17, 34
Central Coast Local Environmental Plan 2022, cll 4.3, 4.4, 7.1, 7.6
Children (Education and Care Services) Supplementary Provisions Regulation 2012
Education and Care Services National Regulations 2011, cll 107, 108
State Environmental Planning Policy (Biodiversity and Conservation) 2021
State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.23, 3.26,

Cases Cited:
Stewart v Inner West Council [2023] NSWLEC 136

Texts Cited:
Central Coast Development Control Plan 2022
Child Care Planning Guideline 2021

Category: Principal judgment
Parties: Access Strata Pty Ltd (Applicant)
Central Coast Council (Respondent)
Representation:
Counsel:
E Fleming (Solicitor) (Applicant)
S Simington (Solicitor) (Respondent)
Solicitors:
Macpherson Kelley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/68499
Publication restriction: Nil

Judgment

COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s development application DA/1847/2023 (Development Application) seeking consent for the demolition of existing structures, amalgamation of two land parcels, removal of identified trees and the construction of a single storey 85 place child care centre with basement level parking, on land legally described as Lot 22 (Lot 22) and Lot 23 (Lot 23) in Deposited Plan 21348 and known as 11-13 Brougham Street, East Gosford.
The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The Development Application

The Development Application was lodged with the respondent on 8 November 2023.
On 21 February 2024, the applicant commenced proceedings in relation to the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.
The Court arranged a conciliation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWLEC 1402
Decision Date: 16 July 2024

CaseChat Overview and Summary

Access Strata Pty Ltd sought judicial review of a decision by the Central Coast Council to refuse development consent for a proposed childcare centre. The Supreme Court of New South Wales was tasked with reviewing the Council's decision and determining whether it was lawful, reasonable, and procedurally fair. The legal issues before the Court involved assessing whether the Council's decision to refuse consent was justified under the relevant planning and environmental legislation and whether procedural fairness was observed. The Court had to consider the merits of the proposal, the relevant planning policies and guidelines, and the evidence presented by both parties.

The Court found that the Council's decision was not supported by sufficient evidence and was therefore unreasonable. The Court was critical of the Council's failure to adequately consider the merits of the proposal and the evidence presented by the applicant. The Court also found that the Council had not properly considered the relevant planning policies and guidelines, which required the proposal to be assessed on its merits. The Court held that the refusal of consent was unlawful and that the proposal should be approved subject to certain conditions. The Court emphasised the importance of proper consideration of planning applications and the need for decisions to be based on evidence and relevant policies.

In light of the above findings, the Court allowed the appeal and granted development consent to the applicant. The Court ordered that the applicant is to pay the respondent’s costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. The Court also made orders for the conditions to be imposed on the development consent. The Court held that the proposal was consistent with the relevant planning policies and guidelines and would not have a significant adverse impact on the surrounding environment or community. The Court emphasised the importance of proper planning and the need for decisions to be based on evidence and relevant policies.

Orders

Orders of the court

The Court orders that:

(1) The applicant is to pay the respondent’s costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. DA/1847/2023, as amended, for the demolition of existing structures, amalgamation of two land parcels, removal of identified trees, and the construction of a single storey 85 place centre based child care facility with basement level parking on land legally described as Lot 22, Lot 23 and Lot 24 in Deposited Plan 21348, subject to the conditions at Annexure A.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Access Strata Pty Ltd v Central Coast Council [2024] NSWLEC 1402
Hearing dates:	Conciliation Conference 21 May, 13 June and 3 July 2024
Date of orders:	16 July 2024
Decision date:	16 July 2024
Jurisdiction:	Class 1
Before:	Targett C
Decision:	The Court orders that: (1) The applicant is to pay the respondent’s costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (2) The appeal is upheld. (3) Development consent is granted to Development Application No. DA/1847/2023, as amended, for the demolition of existing structures, amalgamation of two land parcels, removal of identified trees, and the construction of a single storey 85 place centre based child care facility with basement level parking on land legally described as Lot 22, Lot 23 and Lot 24 in Deposited Plan 21348, subject to the conditions at Annexure A.
Catchwords:	APPEAL – Development application - child care centre - conciliation conference – agreement between the parties - orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.10, 8.11, 8.14, 8.15 Land and Environment Court Act 1979, ss 17, 34 Central Coast Local Environmental Plan 2022, cll 4.3, 4.4, 7.1, 7.6 Children (Education and Care Services) Supplementary Provisions Regulation 2012 Education and Care Services National Regulations 2011, cll 107, 108 State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.23, 3.26,
Cases Cited:	Stewart v Inner West Council [2023] NSWLEC 136
Texts Cited:	Central Coast Development Control Plan 2022 Child Care Planning Guideline 2021
Category:	Principal judgment
Parties:	Access Strata Pty Ltd (Applicant) Central Coast Council (Respondent)
Representation:	Counsel: E Fleming (Solicitor) (Applicant) S Simington (Solicitor) (Respondent) Solicitors: Macpherson Kelley (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2024/68499
Publication restriction:	Nil