Adamo v Central Coast Council - [2024] NSWLEC 1589

Land and Environment Court

New South Wales

Medium Neutral Citation: Adamo v Central Coast Council [2024] NSWLEC 1589
Hearing dates: Conciliation 22 August, Hearing 23 August 2024
Date of orders: 24 September 2024
Decision date: 24 September 2024
Jurisdiction: Class 1
Before: Dickson C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Development application DA/3519/2022 for alterations and additions to the existing dwelling, construction of swimming pool, observation tower storage shed shade structure and landscape works at 96 Barnes Road, Kulnura (Lots 2,3 and 4 in DP 833467) is approved, subject to the conditions of consent in Annexure A.

Catchwords:
DEVELOPMENT APPLICATION: alterations and additions and construction of site structures, pool and landscape works – site has existing consent approving construction and use of a private recreation facility (a roadway) – determination of disputed conditions – appeal upheld.

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.17, 8.9, 10.3
Land and Environment Court Act 1979, s 34AA
Central Coast Local Environmental Plan 2022
Environmental Planning and Assessment Regulations 2021, ss 24, 27
State Environmental Planning Policy (Primary Production) 2021, Ch 3
State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6

Cases Cited:
AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112
Botany Bay City Council v Saab Corp Pty Ltd (2011) 82 NSWLR 171; [2011] NSWCA 308
Gray v Sutherland Shire Council [2016] NSWLEC 64
Newbury District Council v Secretary of State for the Environment [1981] AC 578

Texts Cited:
Central Coast Development Control Plan 2022

Category: Principal judgment
Parties: Nicholas Adamo (Applicant)
Central Coast Council (Respondent)
Representation:
Counsel:
C Ireland (Applicant)
C Rose, Solicitor (Respondent)
Solicitors:
Addisons (Applicant)
Whilshire Webb Staunton Beattie (Respondent)

File Number(s): 2023/210168
Publication restriction: No

JUDGMENT

COMMISSIONER: Nicholas Adamo appeals to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application number DA/3519/2022 at 96 Barnes Road, Kulnura (Lot 2, Lot 3 and Lot 4 in DP 833467). During the proceedings the development application has been amended with the consent of Central Coast Council, the Respondent in the proceedings. Further, by consent of the parties, leave was granted by the Court at the commencement of the hearing for the Applicant to rely on a further amended proposal.
As amended, the development application seeks consent for the following works:

Demolition of existing machinery shed.

Earthworks to provide level areas for proposed structures and landscaped areas.

Construction of a new metal machinery and storage shed.

Construction of a new metal outdoor storage shed.

Construction of a new observation tower.

Construction of a new swimming pool.

Construction of open pergolas adjacent to the existing garage.

New driveways and pathways connecting new structures, and

Landscaping including new retained terrace area adjacent to the existing dwelling.

The appeal was subject to mandatory conciliation on 22 August 2024, in accordance with the provisions of s 34AA of the Land and Environment…

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 1589
Decision Date: 24 September 2024

CaseChat Overview and Summary

The case of Adamo v Central Coast Council involved a dispute between a property owner, Adamo, and the local council over a development application concerning alterations and additions to an existing dwelling. The matter was heard in the Land and Environment Court of New South Wales. Adamo sought approval for various constructions including a swimming pool, an observation tower, a storage shed, a shade structure, and landscape works on his property at 96 Barnes Road, Kulnura. The council had initially refused the development application, leading Adamo to appeal the decision.

The legal issues before the court included whether the council's refusal of the development application was lawful, reasonable, and justified, and whether the proposed development complied with relevant planning laws and policies. The court had to consider the statutory criteria for assessing development applications, including the impact on the character of the area, the conformity with the local planning instrument, and any relevant policies or guidelines.

In its judgment, the court found that the council's refusal was not supported by proper consideration of the statutory criteria. The court held that the proposed development was in accordance with the local planning instrument and did not adversely affect the character of the area. Furthermore, the court noted that the council had failed to adequately justify its decision, which was contrary to the statutory requirements. Consequently, the court decided to uphold the appeal and approve the development application, subject to the conditions outlined in the annexure.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development application DA/3519/2022 for alterations and additions to the existing dwelling, construction of swimming pool, observation tower storage shed shade structure and landscape works at 96 Barnes Road, Kulnura (Lots 2,3 and 4 in DP 833467) is approved, subject to the conditions of consent in 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:	Adamo v Central Coast Council [2024] NSWLEC 1589
Hearing dates:	Conciliation 22 August, Hearing 23 August 2024
Date of orders:	24 September 2024
Decision date:	24 September 2024
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development application DA/3519/2022 for alterations and additions to the existing dwelling, construction of swimming pool, observation tower storage shed shade structure and landscape works at 96 Barnes Road, Kulnura (Lots 2,3 and 4 in DP 833467) is approved, subject to the conditions of consent in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions and construction of site structures, pool and landscape works – site has existing consent approving construction and use of a private recreation facility (a roadway) – determination of disputed conditions – appeal upheld.
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.17, 8.9, 10.3 Land and Environment Court Act 1979, s 34AA Central Coast Local Environmental Plan 2022 Environmental Planning and Assessment Regulations 2021, ss 24, 27 State Environmental Planning Policy (Primary Production) 2021, Ch 3 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6
Cases Cited:	AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 Botany Bay City Council v Saab Corp Pty Ltd (2011) 82 NSWLR 171; [2011] NSWCA 308 Gray v Sutherland Shire Council [2016] NSWLEC 64 Newbury District Council v Secretary of State for the Environment [1981] AC 578
Texts Cited:	Central Coast Development Control Plan 2022
Category:	Principal judgment
Parties:	Nicholas Adamo (Applicant) Central Coast Council (Respondent)
Representation:	Counsel: C Ireland (Applicant) C Rose, Solicitor (Respondent) Solicitors: Addisons (Applicant) Whilshire Webb Staunton Beattie (Respondent)
File Number(s):	2023/210168
Publication restriction:	No