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

1. 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.

2. 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

3. The Development Application was lodged with the respondent on 8 November 2023.

4. 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.

5. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 21 May 2024 and adjourned on two occasions. During the course of the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

6. Amended plans and further documents were filed on 5 July 2024 (Amended Development Application) cited at [56]. The Amended Development Application primarily comprised:

1. confirmation of landowner’s consent in relation to the proposed stormwater easement and associated works on Lot 24 in Deposited Plan 21348 also known as 15 Brougham Street (Lot 24) by way of deed (tab 14 of the Amended Development Application);

2. an amended Statement of Environmental Effects (Amended SEE) (tab 6 of the Amended Development Application);

3. updated architectural, engineering and landscaping plans (tabs 1 to 4 of the Amended Development Application);

4. a supplementary traffic and parking report (tab 12 of the Amended Development Application);

5. a supplementary acoustic report (tab 7 of the Amended Development Application);

6. an in-situ permeability report (tab 8 of the Amended Development Application);

7. an updated plan of management (tab 9 of the Amended Development Application);

8. a combined demolition/construction and operational (ongoing) waste management plan (tab 11 of the Amended Development Application); and

9. an updated aboricultural impact assessment (tab 13 of the Amended Development Application).

7. The decision agreed upon by the parties is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

8. 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.

Jurisdictional considerations

9. 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 for the reasons that follow.

Owners’ consent

10. The applicant is the registered proprietor of Lot 23 in Deposited Plan 21348. Landowner’s consent from the registered proprietors of Lot 22 in Deposited Plan 21348 to the Development Application is contained within Tab 5 of the Amended Development Application.

11. In addition to Lot 22 and Lot 23, the Amended Development Application also proposes the removal of the trees identified as Trees 8, 9 and 11 which are located on the boundary of Lot 23 and Lot 24. Lots 22, 23 and 24 will collectively be referred to as the Subject Land.

12. Landowners’ consent from the registered proprietors of Lot 24 to the removal of Trees 8, 9 and 11 has been provided (see Tab 5 of the Amended Development Application). For completeness, Tree 8 has been approved for removal under separate Development Consent No. DA59275/2020.

13. In addition, the Amended Development Application proposes that drainage works be carried out on, and a drainage easement established over, Lot 24 (Easement Works). The applicant relies on an executed deed (undated) between the registered proprietor of Lot 24 and the applicant which provides landowners’ consent for the Easement Works on Lot 24 (see tab 14 of the Amended Development Application).

State Environmental Planning Policy (Resilience and Hazards) 2021

14. Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:

1. it has considered whether the land is contaminated; and

2. if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

3. if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

15. Section 4.6(2) of the RH SEPP provides that “before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subs (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines”. Relevantly, subs (4)(c) includes land to the extent to which it is proposed to carry out development for child care purposes in relation to which there is no (or incomplete) knowledge as to whether certain development for a purpose of carrying out activities that may cause contamination had been carried out and on which it would have been lawful to carry out such development.

16. The Amended Development Application includes a Detailed Site Investigation prepared by NEO Consulting dated 25 July 2023 (DSI) (see Tab 10 of the Class 1 Application). The DSI undertakes a site investigation of Lot 22 and Lot 23 (which also considers surrounding properties) and considers the analytical results of sampling undertaken on those lots. The DSI concludes that “based on the site investigation and analytical results, NEO Consulting considers that the potential for significant contamination of soil to be low. NEO Consulting finds that the site is suitable for the proposed development and Residential (A) use, providing the recommendations within Section 16 of this report are undertaken”.

17. Condition 1.1 of the Agreed Conditions relevantly requires the proposed development to be carried out in accordance with the DSI. Further, the Agreed Conditions also require that demolition and excavation works are to be performed in accordance with relevant Australian Standards.

18. The parties agree that the requirements of s 4.6(1) and (2) of the RH SEPP are satisfied.

19. Having regard to the DSI and Agreed Conditions, I am satisfied that the Subject Land is suitable, or can be made suitable, for the purposes for which development consent is sought.

20. In addition, Chapter 2 (Coastal Management) of the RH SEPP applies to the Subject Land, being located wholly within the Coastal Environment Area (s 2.10) and partially within the Coastal Use Area (s 2.11).

21. Section 2.10(1) of the RH SEPP relevantly provides that development consent must not be granted to development on land within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on various matters. Section 2.10(2) relevantly provides that development consent must not be granted to development unless the consent authority is satisfied of specified matters.

22. The parties agree that the respondent has considered the impact of the proposed development on land within the coastal environment area and coastal use area, and is satisfied that the Amended Development Application will not cause an adverse impact on the land.

23. In determining the Amended Development Application, I confirm that I have considered the matters listed in ss 2.10(1) and 2.11(1)(a) and (c) of the RH SEPP and, having regard to the parties’ agreement, am satisfied of the matters listed in ss 2.10(2) and 2.11(1)(b) of the RH SEPP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

24. The Amended Development Application proposes the removal of trees to facilitate the proposed development.

25. The parties agree that as the Amended Development Application seeks development consent to remove the identified trees, Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) relating to permits, is not enlivened due to the BC SEPP regulating a different and separate scheme to seeking development consent under the EPA Act (see Stewart v Inner West Council [2023] NSWLEC 136).

26. The parties agree, and I accept, that there is no matter that would prevent consent being granted for the removal of the identified trees proposed to facilitate the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

27. Section 3.23 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TISEPP) relevantly provides that before determining a development application for the purpose of a centre-based child care facility, the consent authority must take into consideration any applicable provisions of the Child Care Planning Guideline (Guidelines) in relation to the proposed development.

28. The proposed development’s compliance with the Guidelines has been addressed in the Amended SEE (see pages 32 to 57).

29. It is noted that s 3.1 of Pt 3 of the Guidelines requires consideration of the site selection and location for child care centres. In particular, Consideration C2 requires a consideration of the compatibility of the land use as a child care centre with surrounding land uses.

30. The Subject Land is located directly opposite the Gosford Fire Station and the car park to the Elanora Hotel, a licensed premises for alcohol sales and gambling. The Amended SEE, at pp 58-61, addresses any potential impacts from these surrounding land uses and concludes that the location of the proposed development is acceptable for the purposes of the Guideline.

31. The parties agree that the location is acceptable, as it is sufficiently distant from the Elanora Hotel and the Amended DA proposes satisfactory acoustic treatments to address noise from the Gosford Fire Station.

32. Section 3.2 of the Guidelines requires that the design of child care facilities consider the local character and minimise adverse impacts on the built environment and local character of the area. The parties agree that the Amended Development Application proposes acoustic treatments to the side boundaries and therefore satisfactorily addresses this matter.

33. Section 3.8 of the Guidelines requires pedestrian circulation and safe access to the site. In particular, Consideration C35 requires a safe and connected environment for pedestrians both on and around the site be provided. The parties agree that he Amended Development Application and Agreed Conditions achieve this and satisfactorily address this matter.

34. In determining the Amended Development Application, I confirm that I have taken into consideration the applicable provisions of the Guidelines in relation to the proposed development for the purpose of s 3.23 of the TISEPP.

35. Section 3.26 of the TISEPP sets out non-discretionary development standards for the purpose of s 4.15(2) and (3) of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. Namely, s 3.26(2)(b) of the TISEPP provides the requirements for indoor or outdoor space.

36. The Amended Development Application provides at least 3.25m² of unencumbered indoor play space and at least 7m² of unencumbered outdoor play space which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations (2011 SI 653) (Education and Care Regulations) and the Children (Education and Care Services) Supplementary Provisions Regulation 2012, both of which require 3.25m² of unencumbered indoor (play) space and 7m² of unencumbered outdoor (play) space.

37. Chapter 3 of the TISEPP is addressed at pp 28-31 of the Amended SEE.

38. In determining the Amended Development Application, I am satisfied that the matters outlined in Ch 3 of the TISEPP have been considered and addressed.

Education and Care Service National Regulations (2011 SI 653)

39. The Education and Care Regulations provides extensive controls and requirements in addition to that of the TISEPP, Central Coast Local Environmental Plan 2022 (CLEP) and Central Coast Development Control Plan 2022 (CDCP).

40. Compliance with the Education and Care Regulations is assessed at pp 62-64 of the Amended SEE.

Central Coast Local Environmental Plan 2022

41. The Subject Land is zoned R1 General Residential under the CLEP. Accordingly, the proposed development, being a “centre-based child care facility” is permissible with consent in the R1 zone. I have had regard to the zone objectives which are extracted below:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To promote best practice in the design of multi dwelling housing and other similar types of development.

• To ensure that non-residential uses do not adversely affect residential amenity or place unreasonable demands on services.

42. An assessment of the proposed development against the R1 zone objectives is set out at pp 66-67 of the Amended SEE. The parties agree that the Amended Development Application is consistent with the objectives of the R1 zone.

43. Clause 4.3 of the CLEP prescribes a maximum building height of 8.5m. The parties agree that the Amended Development Application complies with this development standard.

44. Clause 4.4 of the CLEP prescribes a maximum floor space ratio (FSR) of 0.5:1. The parties agree that the Amended Development Application complies with this development standard.

45. Clause 7.1 of the CLEP relevantly provides that development consent is required for the carrying out of specified works on land shown on the Acid Sulfate Soils Map. The parties agree that the Subject Land is mapped as Class 5 Acid Sulfate Soils (ASS). The Amended Development Application proposes a basement carpark which has a maximum extent of cut depth of 2 metres below the natural ground surface. The Subject Land is located within 500m of Class 1 and Class 2 land.

46. However, the parties agree that:

1. considering the small scale of the development and extent of cut across the Subject Land, the water table is unlikely to be lowered below 1m Australian Height Datum on the adjacent Class 1 and Class 2 land; and

2. the Amended Development Application does not involve works that require the preparation of an Acid Sulfate Soils management plan in accordance with cll 7.1(2) and (3) of the CLEP.

47. Therefore, I am satisfied that the relevant provisions in cl 7.1 of the CLEP have been adequately addressed by the Amended Development Application and there is no impediment to the grant of development consent on the basis of cl 7.1.

48. Clause 7.6 of the CLEP relevantly provides that development consent must not be granted to development unless the consent authority is satisfied that all of the services essential for the development are available or that adequate arrangements have been made to make them available when required. In determining the Amended Development Application, I am satisfied of the matters required in cl 7.6 of the CLEP on the basis that:

1. the Subject Land is already serviced by all essential services;

2. a driveway is provided off Brougham Street to provide vehicular access to the development and is supported by a Traffic and Parking Impact Assessment (tab 7 of the Class 1 Application);

3. the Amended Development Application is accompanied by stormwater engineering plans (tabs 3 and 4 of the Amended Development Application) and all necessary landowners’ consent for the proposed drainage easement have been obtained (see [13] above);

4. the Amended Development Application is accompanied by an Operational (Ongoing) Waste Management Plan (tab 11 of the Amended Development Application); and

5. the Agreed Conditions require relevant certificates and approvals to be obtained.

Central Coast Development Control Plan 2022

49. The parties are satisfied that all relevant provisions of the CDCP have been taken into consideration in the assessment and determination of the Amended Development Application.

Remaining matters under s 4.15(1) of the EPA Act

50. The parties agree that the matters listed in s 4.15(1) subs (b), (c) and (e) are considered generally in the Amended SEE.

51. In respect of s 4.15(1)(d) of the EPA Act, the Development Application was publicly exhibited between 24 November 2023 and 18 December 2023. One written submission objecting to the proposed development was received in response to the notification of the proposal.

52. The Amended Development Application was not re-notified on the basis that the respondent formed the view that the amendments did not increase environmental impacts.

50. I am satisfied that the written submission has been taken into consideration in the assessment and determination of the Amended Development Application.

Conclusion

54. 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.

55. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

56. The Court notes that:

1. The respondent has approved, under cl 38(1) of the Environmental Planning and Assessment Regulation 2021, the applicant amending Development Application No DA/1847/2023 in accordance with the following amended plans and documents:

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1	Drawing No: DA000 Issue J Revision 10	Cover Page and Sheet List	Greenscape Design & Associates	31 May 2024
	Drawing No: DA001 Issue J Revision 10	Site + Demolition Plan		31 May 2024
	Drawing No: DA002 Issue J Revision 10	Basement		31 May 2024
	Drawing No: DA003 Issue J Revision 10	Ground Floor Plan		31 May 2024
	Drawing No: DA005 Issue J Revision 10	Roof Plan		31 May 2024
	Drawing No: DA006 Issue J Revision 10	Elevations		31 May 2024
	Drawing No: DA007 Issue J Revision 10	Sections		31 May 2024
	Drawing No: DA008 Issue J Revision 10	3D View		31 May 2024
	Drawing No: DA009 Issue J Revision 10	Mid Winter Shadow		31 May 2024
	Drawing No: DA010 Issue J Revision 10	Mid Winter Sun Eye Views		31 May 2024
	Drawing No: DA011 Issue J Revision 10	FSR Plans		31 May 2024
	Drawing No: DA012 Issue J Revision 10	Unencumbered Area Plans		31 May 2024
	Drawing No: DA013 Issue J Revision 10	Gross Floor Area		31 May 2024
	Drawing No: DA014 Issue J Revision 10	Tree Retention Plan		31 May 2024
	Drawing No: DA015 Issue J Revision 10	Detail Retaining Wall		31 May 2024
	Drawing No: DA016 Issue J Revision 10	Building Site Plan		31 May 2024
	Drawing No: DA017 Issue J Revision 10	Vehicle Ramp Detail		31 May 2024
	Drawing No: DA018 Issue J Revision 10	Notification Plans		31 May 2024
Landscape Plans
2	Drawing No DA_01 Revision E	Site Context Plan	Greenscape Architecture + Landscape Design	4 June 2024
	Drawing No DA_02 Revision E	GF Playspace Plan		4 June 2024
	Drawing No DA_03 Revision E	GF Planting Plan		4 June 2024
	Drawing No DA_04 Revision E	GF Planting Plan		4 June 2024
	Drawing No DA_05 Revision E	GF Planting Plan		4 June 2024
Engineering Plans
3	Drawing No C00.01 Revision D	General Notes	Engineering Studio Civil & Structural	7 June 2024
	Drawing No C01.01 Revision D	Sediment & Erosion Control Plan		7 June 2024
	Drawing No C01.02 Revision D	Sediment & Erosion Control Details		7 June 2024
	Drawing No C02.01 Revision D	Stormwater Drainage Plan		7 June 2024
	Drawing No C02.02 Revision D	Basement Drainage Plan		7 June 2024
	Drawing No C02.03 Revision D	Stormwater Details Sheet 1		7 June 2024
	Drawing No C02.04 Revision D	Stormwater Details Sheet 2		7 June 2024
	Drawing No C02.05 Revision D	Stormwater Details Sheet 3		7 June 2024
	Drawing No C02.06 Revision D	Stormwater Details Sheet 4		7 June 2024
	Drawing No C02.07 Revision D	Stormwater Details Sheet 5		7 June 2024
	Drawing No C03.01 Revision D	Bulk Earthworks Plan		7 June 2024
Engineering Plans - Easement
4	Drawing No: C10.01 Revision C	General Notes	Engineering Studio Civil & Structural	4 June 2024
	Drawing No: C11.01 Revision C	Easement Stormwater Plan		4 June 2024
	Drawing No: C11.02 Revision C	Easement Detail Sheet		4 June 2024
Reports / documents
5	Landowner’s Consent - Lot 22 DP21348		Julie Anne Votano	20 May 2024
	Landowner’s Consent - Lot 23 DP21348		Access Strata Pty Ltd	20 May 2024
	Landowner’s Consent - Lot 24 DP21348 (Tree Removal - Trees 8 and 9)		Gelareh Fazelzadeh Haghighi and Pouyan Omidian	7 May 2024
	Landowner’s Consent - Lot 24 DP21348 (Tree Removal - Tree 11)		Gelareh Fazelzadeh Haghighi and Pouyan Omidian	7 May 2024
6	Amended Statement of Environmental Effects		Think Planners	7 May 2024
7	Acoustic Impacts of Fire Engine Pass-Bys Ref: 7820-2.1L		Day Design Pty Ltd	4 June 2024
8	In-Situ Permeability Report Ref No: 69545-MHM		Ideal Geotech	April 2024
9	Plan of Management - Revision 2		3 June 2024
10	Letter of Advice - Proposed Grant of Easement		Axiom Spatial Surveyors	Undated
11	Combined Demolition/Construction and Operational (Ongoing) Waste Management Plan - Rev 1.2		BRP Consulting	June 2024
12	Supplementary Traffic and Parking Advice		McLaren Traffic Engineering	11 June 2024
13	Arboricultural Impact Assessment		McArdle Arboricultural Consultancy	5 June 2024
14	Deed of Agreement to Grant Easement and Access Licence (Ref No. 3446-5864-1677v3)		Gelareh Fazelzadeh and Pouyan Omidian	30 May 2024
	Redacted Deed of Agreement to Grant Easement and Access Licence (Ref No. 3446-5864-1677v3)		Dominic Votano and Julie Votano

2. The applicant filed the amended plans and documents outlined above with the Court on 5 July 2024.

Orders

57. 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.

……………………….

N Targett

Commissioner of the Court

Annexure A

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Decision last updated: 16 July 2024