Artmade Architectural Pty Ltd v Central Coast Council

[2025] NSWLEC 1249

Land and Environment Court

New South Wales

Medium Neutral Citation:

Artmade Architectural Pty Ltd v Central Coast Council [2025] NSWLEC 1249

Hearing dates:

12-14 March 2025

Date of orders:

16 April 2025

Decision date:

16 April 2025

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court directs that:

(1)   The parties are to approach the Registrar within three days of these orders for the matter to be listed before me for the parties to address me on potential final orders in the proceedings in light of these interim findings.

(2)   Pending the making of final orders, liberty is granted to restore the matter to the Court on two days’ notice.

(3)   The exhibits are returned with the exception of Exhibits A and 8.

Catchwords:

DEVELOPMENT APPLICATION – centre based childcare centre – joint expert conferences – merit concerns resolved with amended plans and additional information – contention that the appeal was lodged prior to the right to appeal arose – appeal not competent.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.4, 4.15, 4.46, 8.7, 8.10. 8.11, 8.12, Div 4.8

Land and Environment Court Act 1979, s 34

Water Management Act 2000, s 91, Div 4

Environment Planning and Assessment Regulation 2021, s 91, Div 4

Cases Cited:

Maule v Liporoni (2002) 122 LGERA 140; [2002] NSWLEC 25

Stroud v CMZZJ Investments Pty Ltd [2025] NSWLEC 16

Category:

Procedural rulings

Parties:

Artmade Architectural Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
R O’Gorman-Hughes (Applicant)
M Fraser (Respondent)

Solicitors:
Project Lawyers (Applicant)
MBM Legal (Respondent)

File Number(s):

2024/181994

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by Artmade Architectural Pty Ltd (the Applicant) against the deemed refusal of their development application DA/409/2024. The development application, as amended, seeks consent for the demolition of existing structures, removal of trees, and construction of a new two and part three storey childcare centre for 70 children. The development is proposed at 24 Waratah Street, East Gosford (Lot 9 DP 31250).

2. 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 11 September 2024. Following the conciliation conference, the Applicant made amendments to their development application responsive to the Respondent’s contentions, however the conciliation was ultimately terminated and the matter listed for hearing.

3. Notwithstanding the termination of the conciliation conference, the parties continued to negotiate in relation to the appropriate form of the development and conditions of consent. These negotiations were productive. The Applicant further amended the development application in January 2025, seeking to address the Council’s concerns.

4. At the start of the hearing, following the amendment and the joint expert reporting process, the Respondent confirmed that all contentions raised in the proceedings in their Statement of Facts and Contentions (SOFC) had been resolved, except for one. That being whether the appeal to the Court was filed at a time when the development applications appeal rights were available.

5. In addition, the Court was addressed by a number of local residents who expressed concern with the proposed development and its impacts. Those concerns focussed on the merits of the proposed childcare centre. If the Court is satisfied that the Applicant’s appeal is properly made (the remaining contention), the parties have reached agreement that the development application should be determined by the grant of development consent subject to conditions.

The remaining issue

6. The Respondent maintains that the appeal should be dismissed on the grounds that the appeal was filed at a time when the appeal rights were not available. Their reasoning is as follows:

1. The development application is for integrated development: s 4.46 of the EPA Act.

2. The Applicant’s appeal was filed with the Court before the right of appeal arose under ss 8.10 and 8.12 of the EPA Act as it was filed 41 days after the development application was lodged with the Respondent. The Respondent argues that pursuant to s 91(2)(b) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the right of appeal did not arise until 61 days had elapsed from the lodgement of the development application.

3. Accordingly, the Respondent argues that as the development application is for integrated development, the right to appeal did not commence until 4 June 2024, after the appeal was filed with the Court. As such the Court’s power in s 8.14(1) of the EPA Act is not engaged and the appeal should be dismissed.

The remaining contention: is the appeal competent?

7. The development application the subject of the appeal was lodged with the Respondent on 5 April 2024. (Exhibit 4). The appeal under s 8.7 of the EPA Act was filed with the Court on 16 May 2024, some 41 days after it was lodged. At the time of the filing of the appeal, and relevantly at the time of the hearing, the development application had not been determined by the Council.

8. As the development application was undetermined, s 8.11 of the EPA Act details the circumstances in which consent is taken to have been refused for purposes of appeal rights. They are:

(1)  A consent authority that has not determined an application for development consent (or for the modification of a development consent) within the period prescribed by the regulations for the determination of the application is, for the purpose only of this Division, taken to have determined the application by refusing development consent (or refusing to modify development consent) when that period ends.

9. Section 8.11(2) states that subs (1) does not prevent a consent authority from determining an application after the end of that period.

10. The appeal periods are detailed in Div 4 the EPA Reg. Relevantly s 91 states:

91   Time for determining development applications

(1)  A consent authority is taken to have refused development consent if it has not determined the development application within the assessment period calculated in accordance with this Division.

(2)  The assessment period is 60 days for a development application—

(a)  for designated development, or

(b)  for integrated development, other than integrated development that is Class 1 aquaculture development, or

(c)  for development requiring concurrence, or

(d)  that is accompanied by a biodiversity development assessment report under the Biodiversity Conservation Act 2016 that proposes to reduce the number of biodiversity credits required to be retired.

(3)  The assessment period is 90 days for a development application for State significant development.

(4)  The assessment period is 40 days for all other development applications, other than a Crown development application referred to in section 95.

11. The assessment period for a development application commences on the day on which the development application is lodged.

12. I note the relevant development application form for the development application includes a query, under the heading of “Related planning information”, “Is the application for integrated development?”. The applicant’s response was “no”.

13. The development application includes a Geotechnical Investigation Report that identifies that the basement excavation is likely to encounter groundwater, and that dewatering may be required. On the basis of the agreement of the planning experts, it is an agreed fact in the proceedings that an “Aquifer Interference Approval” is required under s 91 of the Water Management Act 2000 (WM Act).

Legislative provisions

14. Integrated development is addressed at Div 4.8 of the EPA Act. The division applies to development which is “integrated development”. At s 1.4 of the EPA Act, “integrated development” is defined as:

integrated development has the meaning given by section 4.46.

15. Section 4.46: ‘What is integrated development’ states:

4.46   What is “integrated development”? (cf previous s 91)

(1)  Integrated development is development (not being State significant development or complying development) that, in order for it to be carried out, requires development consent and one or more of the following approvals—

Act ...	Provision	Approval
Water Management Act 2000	ss 89, 90, 91	water use approval, water management work approval or activity approval under Part 3 of Chapter 3

…

16. The remaining sections in Div 4.8 detail the requirements for the assessment and processing of applications for development which is integrated development.

Submissions

17. Both parties provided the Court with written submissions in relation to the remaining contention. In making these findings I have read and had regard to those, and the oral submissions made.

18. Mr O’ Gorman-Hughes, for the Applicant, submits that the statutory provisions should be construed in context, having regard to the mischief the statute was intended to remedy.

19. Relying on the decision of Maule v Liporoni (2002) 122 LGERA 140; [2002] NSWLEC 25 (“Maule v Liporoni”), Mr O’Gorman-Hughes submits that, firstly, the integrated development provisions are intended to be beneficial and facultative and, secondly, that the Applicant has not applied for integrated development. He submits that the choice by the Applicant for their development application to be processed as integrated development is an election that is made by the Applicant. No such election was made in this case.

20. The relevant section of Maule v Liporoni is at [83]-[87]:

“[83] The provisions of Pt 4, Div 5 of the EP&A Act are beneficial and facultative. They were enacted to overcome delays and duplications where there is more than one consent or approval body for a particular development so that an applicant for consent would not have to go through the whole process again for each application. The beneficial and facultative nature of the legislation is explained by the Minister’s second reading speech on the relevant Bill which introduced the legislation:

“The solutions contained in the bill focus on reducing necessary delays and duplication, simplifying the assessment process as much as possible and achieving consistency and certainty across multiple environmental approvals.…

While there will still be a need for the applicant to obtain the other relevant approvals, greater certainty for the applicant and the community will be provided as multiple assessment processes will be collapsed into the one overall framework.”

(Hansard, Legislative Assembly, 15 October 1997, pp 821-832)

[84] If a development application is made for integrated development, the effect of any subsequent development consent is that an approval body, following notification of the development application, and which then fails to inform the consent authority whether or not it will grant the approval or to inform it of the general terms of its approval, cannot subsequently refuse to grant approval to an application for approval in respect of that development and any such approval must not be inconsistent with the development consent (s 91A(5)). The provisions relating to integrated development are there for the benefit of applicants for development consent and not to hinder them.

[85] As noted in the second reading speech, the granting of development consent for integrated development does not avoid the need to obtain any other relevant approvals. Even if the development application had been processed as integrated development and a development consent had been granted on that basis, Mr Liporoni would still have had to apply for and obtain a permit under Pt 3A of the Rivers and Foreshores Improvement Act assuming for the moment that the site of the building was on “protected land”.

[86] In making the development application Mr Liporoni did not tick the box in the application form to indicate that consent was being sought for an integrated development approval. In so doing he elected to have his development application processed as if it were not an application for integrated development. That was his choice. There was and is no compulsion on an applicant to make an application for an integrated development approval, if he or she choses not to do so.

[87] There is nothing unlawful in an applicant for development consent so electing. There is nothing unlawful in the making of the development application in the present case, neither is the anything unlawful in the council’s failure to process the development application as if it were for integrated development.”

21. As the Applicant did not elect for their development application to be integrated development, Mr O’Gorman-Hughes argues that the applicable appeal right detailed in s 91 of the EPA Reg is 40 days (s 91(4)). As such, the appeal, lodged at 41 days, is a competent appeal.

22. In the alternative, Mr Fraser submits that the decision in Maule v Liporoni should not be followed for the following reasons:

1. The legislative regime for integrated development in the EPA Act is clear and unambiguous. As the interpretation is clear on the face of the provisions, there is no requirement to have regard to caselaw to construe the legislation.

2. In contrast to the current proceedings, Maule v Liporoni and other decisions that followed it were judicial review proceedings examining the validity of determinations of development applications.

23. Mr Fraser submits that applying s 4.46(1) of the EPA Act to the facts of the development application it is clear that the development application is integrated development as:

1. Dewatering will be necessary during excavation and construction of the basement, and

2. That consequently an aquifer interference approval will be required under s 91(3) of the WM Act.

24. Further, Mr Fraser submits that applying s 91 of the EPA Reg, the applicable assessment period for the development application is 60 days, therefore not being concluded until 4 June 2024. He argues the appeal right did not arise until after the appeal was lodged with the Court. On this reasoning he concludes that the right to engage the court’s jurisdiction on appeal had not arisen at the time the appeal was lodged and the Court’s jurisdiction has not been lawfully engaged.

Findings

25. I note that in the decision Stroud v CMZZJ Investments Pty Ltd [2025] NSWLEC 16 (“Stroud and Anor v CMZZJ Investments”) at [30]-[33], Robson J helpfully summarised the legal principles applicable to statutory interpretation. I have extracted the relevant paragraphs of the judgment below:

“[30] In the modern approach to statutory interpretation, the importance of context has routinely been emphasised: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2; SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] (‘SZTAL’).

[31] Kiefel CJ, Nettle and Gordon JJ in SZTAL at [14], observed that:

“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.” (Citations omitted.)

[32] And, as Bell P (as the Chief Justice then was) noted in Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 (‘Sydney Seaplanes’) at [31]:

“Words, whether used in a statute or more generally, always exist in and take their meaning from the particular context in which they are used. That context may expose any mischief which a statute is directed towards redressing and may reveal the purpose underpinning the enactment. That purpose, in turn, guides the preferred meaning to be given to the words being construed. The process of statutory interpretation may thus be seen as a holistic one or, as Campbell JA has identified both judicially and extra-judicially, as one involving something akin to hermeneutic reasoning…” (Citations omitted.)

[33] Under s 34(2)(f) of the Interpretation Act 1987 (NSW), extrinsic aids, such as a second reading speech (now the “Agreement in Principle Speech”), may be used to discover the underlying purpose or object of the Act: D C Pearce & R S Geddes, Statutory Interpretation in Australia, (10th ed, 2024) at [3.9], [3.27].”

26. The starting point in determining the meaning of a statutory provision is the text of the statute itself, its context and purpose.

27. Applying the principles of statutory interpretation summarised in Stroud and Anor v CMZZJ Investments, the provisions of the EPA Act, including the definition at s 1.4 (at [14] and [15]) and s 4.46, to the facts of these proceedings I find as follows:

1. The development for which the development application seeks consent includes carrying out work which includes the excavation of the site for basement parking.

2. The development application includes a Geotechnical Investigation Report that identifies that the basement excavation required to create the basement parking is likely to encounter groundwater and that dewatering may be required.

3. It is an agreed fact in the proceedings that an “Aquifer Interference Approval” is required under s 91 of the WM Act in order for the development to be carried out.

4. An approval under s 91 of the WM Act is listed in s 4.46(1) as an approval to which the integrated development provisions apply.

5. None of the exclusions to the operation of the provisions which are listed at s 4.46(2) to s 4.46(4) apply.

6. When ss 1.4 and 4.46 of the EPA Act are read together, a development application is integrated development if it requires an approval of the kind listed at s 4.46(1), in addition to development consent, in order for the development to be carried out. This is a finding of fact that arises from the application of the provisions.

7. Whilst the development application form includes an option for an applicant to nominate that their development is integrated, in my view this does not subvert the effect of Div 4.8. In evaluating the development application under s 4.15 of the EPA Act, a consent authority is required to take into consideration such of the following matters as are of relevance to the development the subject of the development application. In this case, one of those matters is the application of s 4.46 of the EPA Act and a determination of whether the development application falls within the ambit of integrated development as defined by s 4.46(1) of the EPA Act.

28. Having made a finding that the development is integrated development I accept that the appeal was lodged with the Court at a time when the right to engage the Court’s jurisdiction on appeal had not arisen and was not yet available.

The merit issues are resolved.

29. I note that members of the public raised the following concerns with the development application at the commencement of the hearing and in written submissions to the Respondent during the assessment of the development application. Those issues can be summarised as:

1. Impacts to privacy and security of adjoining residential properties as play areas and proposed glazing will overlook adjoining properties. Further, the adjoining residential properties provide opportunities for overlooking the proposed childcare centre.

1. Inadequate fencing. The proposed 1.8m high fence is insufficient to ameliorate noise from a two-storey childcare centre. Further, the residents seek for the currently installed cat proofing to be reinstalled or replaced if the boundary fencing is to be replaced.

2. Noise.

1. The proposed design does not offer sufficient noise control to dampen the expected noise levels of up to 70 children playing simultaneously.

2. The noise generated will have significant detrimental impact on the adjoining properties and the enjoyment of their properties.

3. This noise impact is exacerbated by the colocation with the existing childcare centre, and the proposed extended trading hours (7am to 6pm).

4. The noise assessment was impacted by uncharacteristically loud background noise levels at the time of logging. In particular, the resident raises concern that these background levels were influenced by large numbers of lorikeets during the flowering season of the site’s vegetation.

4. Overshadowing. The two-storey childcare centre will overshadow the living rooms, bedrooms and outdoor entertainment areas.

5. Construction impacts. The development will cause noise and safety impacts during construction which will impact the adjoining properties, the street network and potentially local air quality.

6. Water table. The basement excavation risks intercepting the ground water table. The development lacks clarity as to how this water will be managed.

7. Parking provision inadequate and the movement of vehicles will add to disturbance and noise for adjoining properties. Further, vehicles exiting the site add to the risk of traffic accidents on Waratah Street.

8. External lighting. The development application does not clarify whether there is external lighting proposed out of hours.

9. Acid sulfate soils (ASS). The development application does not include a management plan for ASS and is not compliant with the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH).

10. Contamination. There is no detailed site investigation for the site.

11. Demand. There is no demand for an additional childcare centre in the locality.

12. Property price impacts. That the approval of the childcare centre will reduce the property price of the neighbouring properties.

30. Further, the following experts gave evidence in the proceedings:

• Town Planning: Jonathon Wood (for the Applicant) and Stephen McMahon (for the Respondent)

• Quantity surveying: Kristian Walkowsky (Applicant)

• Stormwater: Mark Boudib (for the Applicant) and Lara Davis (for the Respondent)

• Engineering: Ben Aggar (for the Applicant) and Leah Hitchenson (for the Respondent)

31. Each of the preceding pairs of experts prepared joint reports which were admitted into evidence. The experts have detailed their written agreement that the Respondent’s contentions were resolved. At the close of the preparation of expert evidence no merit issues remained with the development application. The experts were excused from giving oral evidence.

32. The parties confirm that each of the contentions raised by the Respondent in their SOFC have been adequately addressed through additional information and amendments to the development application. As such, there is no reason advanced by the Council that could form a basis upon which development consent should be refused. 

33. I note that the Respondent, in processing the development application referred it to WaterNSW, the authority responsible for the consideration and issue of aquifer interference approval under the WM Act. WaterNSW has issued general terms of approval dated 5 March 2025.

34. The proposed development is permissible on the site, the parties made an agreed submission to the Court that the relevant jurisdictional preconditions have been met. The evidence from the experts engaged in the proceedings do not identify any merit reasons which would support the refusal of the application. Further, the parties submit that the matters raised by the objectors have been satisfactorily addressed either through amendments to the development application or conditions of consent.

Directions

35. On the preceding basis, the appeal lodged by the Applicant was filed at a time when the appeal right was not available. However, development application remains undetermined by the Respondent. Accordingly, I make directions for the matter to be relisted before the parties to discuss potential final orders in light of my findings.

36. The directions of the Court are:

1. The parties are to approach the Registrar within three days of these orders for the matter to be listed before me for the parties to address me on potential final orders in the proceedings in light of these interim findings.

2. Pending the making of final orders, liberty is granted to restore the matter to the Court on two days’ notice.

3. The exhibits are returned with the exception of Exhibits A and 8.

D Dickson

Commissioner of the Court

**********

Decision last updated: 16 April 2025