Angolet Pty Ltd v Central Coast Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Angolet Pty Ltd v Central Coast Council [2023] NSWLEC 1346

Hearing dates:

6, 7 February and 14 April 2023

Date of orders:

05 July 2023

Decision date:

05 July 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Modification application DA/52083/2017/4 seeking consent for alterations and additions to the approved development at 5-7 Church Street, Terrigal (Lots 19 and 20 in DP 7861) principally by the addition of a new level (sixth storey), containing a single penthouse apartment and alterations to the approved terraces on Level 5 is determined by the way of refusal.

(3) Exhibits are returned with the exception of exhibits 2, A, C, D.

Catchwords:

MODIFICATION APPLICATION – Additional floor to approved shop top housing development –the development as modified is substantially the same as the development approved –the view impacts arising from the modification are unacceptable – application should be refused on merit – appeal dismissed

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.2, 8.9

Central Coast Local Environmental Plan 2022, cl 1.8A

Gosford Local Environmental Plan 2014, cll 4.3, 4.4, 4.6

Land and Environment Court Act 1979, s 34

Cases Cited:

Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) LGERA 114; [2022] NSWCA 227

Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280

North Sydney Council v Michael Standley & Associates Pty Ltd [1998] NSWSC 163

Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8

Texts Cited:

Gosford Development Control Plan 2013

Category:

Principal judgment

Parties:

Angolet Pty Ltd (First Applicant)
Natva Investments Pty Ltd (Second Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
P Tomasetti SC (First and Second Applicant)
H Irish (Respondent)

Solicitors:
Solomon Tudehope Solicitors (First and Second Applicant)
McCullough Robertson (Respondent)

File Number(s):

2022/135714

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicants, Angolet Pty Ltd and Natva Investments Pty Ltd are the owners of two adjoining lots known as 5 - 7 Church Street, Terrigal (Lots 19 and 20 in DP 7861). The subject site is currently a construction site following the approval and commencement of development consent DA/52083/2017 (the original consent) which granted consent for the erection of a five-storey shop top housing development. That consent has subsequently been modified by the Applicants and the current proceedings relate to DA/52083/2017/4 (the modification application) which seeks the following modifications:

• Addition of a new level (sixth storey), containing a single penthouse apartment (195m² of gross floor area (GFA));

• Increase in the number of units from 12 (the original consent) to 13;

• Enlargement of the size of the terraces on Level 5 and a subsequent reduction of approved setbacks as follows:

• Church Street boundary setback reduced by 1.7m,

• Hudson Lane setback reduced by 1.1m,

• North west side boundary reduced by 0.6m,

• South east side boundary reduced by 0.6m.

• Increase in the approved maximum building height of the proposed roof from RL…