Bayside Central Pty Ltd v Central Coast Council

[2024] NSWLEC 1775

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bayside Central Pty Ltd v Central Coast Council [2024] NSWLEC 1775

Hearing dates:

Conciliation Conference on 12 September 2024

Date of orders:

03 December 2024

Decision date:

03 December 2024

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application number DA48/2024 as amended for the demolition of existing structures and construction of four dwellings on the land at Lot 1, Lot 2 and Lot 3 in SP 15362 known as 40 Bogan Road, Booker Bay, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, Sch 1, Div 2, s 7

Land and Environment Court Act 1979, s 34

Central Coast Local Environmental Plan 2022, cll 2.2, 2.3, 2.7, 4.3, 4.4, 7.1

Environmental Planning and Assessment Regulation 2021, ss 27, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Texts Cited:

Central Coast Development Control Plan 2022

NSW Acid Sulfate Soil Management Advisory Committee, Acid Sulphate Soil Manual 1998

Category:

Principal judgment

Parties:

Bayside Central Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
D Tyrrell (Solicitor) (Applicant)
M Caban (Solicitor) (Respondent)

Solicitor:
Tyrrell’s Planning Law (Applicant)
Local Government Legal (Respondent)

File Number(s):

2024/105806

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Central Coast Council of development application DA48/2024 (the DA). The DA sought consent for multi-dwelling housing on land described as CP/SP15362, Lot 1, Lot 2 and Lot 3 in SP 15362 known as 40 Bogan Road, Booker Bay. (the site).

2. The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 23 April 2024.

3. 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 12 September 2024. I presided over the conciliation conference, which commenced with an onsite view, which was not attended by any submitters.

4. At the conciliation conference, the parties advised that they had reached an in- principle s 34 agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. A solar access plan was yet to be provided by the Applicant to the Respondent. Draft conditions of consent were provided to the Applicant by the Respondent at the conciliation conference.

5. The signed s 34 agreement and Annexure A (Conditions of Consent) was filed on 26 September 2024. Amended plans (the amended DA) were filed with the Court on 27 November 2024. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites (Jurisdictional Statement). The Jurisdictional Statement was provided to the Court on 19 September 2024.

6. The parties advise that the amended DA satisfactorily addresses the contentions raised by the Respondent in the SOFAC.

7. In particular, the changes in the amended DA included:

1. Removal of pergola from rear unit; and

2. Front unit set back behind building line.

3. Window treatments on the sides of the units have been altered;

4. Changes to landscaping plan; and

5. Changes to bin location and service area.

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. 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.

9. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Prerequisites

Environmental Planning and Assessment Act 1979

Owner’s consent

11. The DA was accompanied by owner’s consent forms signed by each of the owners of Units 1, 2 and 3 currently on the site.

Community Participation (Sch 1, Div 2, s 7(1) of the EPA Act)

12. The DA was publicly notified between 2 February to 23 February 2024. Two submissions were received objecting to the proposed development.

Conditions

13. The s 34 agreement includes the imposition of conditions which are imposed under subs 4.17(1) of the EPA Act.

Central Coast Local Environmental Plan 2022

14. The Central Coast Local Environmental Plan 2022 (the LEP) applies to the site and to the proposed development. Under the LEP provisions, the site is zoned R1 General Residential pursuant to cl 2.2 of the LEP; and

1. Clause 2.3 of the LEP permits a multi-dwelling housing with consent in the R1 General Residential zone;

2. Demolition is permitted with consent under cl 2.7 of the LEP;

3. the parties advise that the Court can be satisfied that the proposed development, as amended, is compatible with the R1 General Residential objectives; and

4. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

15. Clause 4.3 of the LEP relates to height of buildings. The site has a maximum building height of 8.5m under the LEP. The parties submit that the proposed development has a maximum building height of less than 8.26m, thus complying with cl 4.3 of the LEP.

16. Clause 4.4 of the LEP relates to floor space ratio (FSR). The site is subject to a maximum FSR of 0.5:1 under the LEP. The parties advise that the proposed FSR is 0.46:1, which complies with this requirement.

17. Clause 7.1 of the LEP relates to Acid Sulfate soils. The parties agree that:

1. The proposed development entails minimal excavation in relation to the construction for the building and does not require the preparation of an acid sulfate soils management and the proposal satisfies the requirements of cl 7.1 of the LEP; and

2. Should acid sulphate soils be encountered during construction works, Council would be notified immediately and an Acid Sulphate Soils Management Plan, written in accordance with the NSW Acid Sulphate Soil Manual 1998 would be to be submitted to Council. (It is noted that accompanying the DA is a Geotech Report from 5QS that has assessed the adjoining lot, which has same owner and is considered to provide information relevant to this DA given the proximity of the subject site).

State Environmental Planning Policy (Biodiversity and Conservation) 2021

18. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) applies to the site. The aims of Ch 2 of the Biodiversity SEPP are to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation.

19. The amended DA is acceptable with regard to the Biodiversity SEPP as it does not propose the removal of trees. The site is already developed with three residential units which are to be demolished as part of the proposed development.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

20. The Applicant submitted BASIX Certificate No 1731576M prepared by Building Sustainability Assessments dated 21 December 2024 with the DA. The parties advise that the BASIX Certificate satisfies the requirement in s 27 of the Environmental Planning and Assessment Regulation 2021 as it has been issued no earlier than 3 months before the date on which the DA was made.

State Environmental Planning Policy (Resilienceand Hazards) 2021

21. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use; and

1. The parties advise that the site has been used for residential purposes for a substantial number of years, and is proposed to remain residential, and that the Court can be satisfied that consideration of this matter can result in consent being granted; and

2. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

Central Coast Development Control Plan 2022

22. The parties advise that all of the matters contained in s 4.15 of the EPA Act (including the Central Coast Development Control Plan 2022) which are of relevance to the proposed development have been taken into consideration, and the amended DA is acceptable subject to conditions.

Conclusion

23. Having considered the advice of the parties provided above at [11]-[22], I am satisfied that:

1. the Applicant’s amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied;

3. approval of the proposed development is in the public interest.

24. Further, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. Accordingly, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

25. The Court notes:

1. that Central Coast Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA48/2024 made on 12 September 2024 to rely on the documents specified below:

Plan No.	Revision No.	Plan Title	Drawn By	Dated
Architectural Plans
DA000	B	Cover Page	ELK Architects	26/02/2024
DA010	P2	Site Analysis Plan	ELK Architects	14/02/2024
DA020	P2	Demolition Plan	ELK Architects	14/02/2024
DA030	P17	Site Plan	ELK Architects	22/08/2024
DA035	P11	Site Coverage Plan	ELK Architects	22/08/2024
DA040	P4	Perspectives	ELK Architects	22/08/2024
DA100	P14	Ground Floor	ELK Architects	22/08/2024
DA110	P12	First Floor	ELK Architects	22/08/2024
DA150	P5	Roof Plan	ELK Architects	22/08/2024
DA300	P14	Elevations	ELK Architects	22/08/2024
DA301	P8	Elevations	ELK Architects	22/08/2024
DA350	P7	External Finishes	ELK Architects	22/08/2024
DA400	P6	Sections	ELK Architects	22/08/2024
DA900	P6	External Shadow Diagrams	ELK Architects	22/08/2024
DA901	P6	External Shadow Diagrams	ELK Architects	22/08/2024
DA960	P2	Sediment Control	ELK Architects	14/02/2024
Landscape Plans
1 of 4	Site Analysis Plan	JK’s Garden Creations	20/06/2024
2 of 4	Landscape Plan	JK’s Garden Creations	20/06/2024
3 of 4	Specification Plan	JK’s Garden Creations	20/11/2023
4 of 4	Construction Street Tree	JK’s Garden Creations	20/11/2023
Engineering Plans
C01	4	Sedimentation and Erosion Control Plan - Sheet 1	MPC Consulting Engineers	12/07/2024
C02	4	Sedimentation and Erosion Control Plan - Sheet 2	MPC Consulting Engineers	12/07/2024
C03	3	Sedimentation and Erosion Control Details	MPC Consulting Engineers	21/06/2024
C04	4	Stormwater Plan – Sheet 1	MPC Consulting Engineers	12/07/2024
C05	4	Stormwater Plan – Sheet 2	MPC Consulting Engineers	12/07/2024
C06	3	Stormwater Details and Driveway Sections	MPC Consulting Engineers	21/06/2024
C07	4	Stormwater Calculation Summary	MPC Consulting Engineers	12/07/2024
T01	3	Turning Path Entry Plan – Sheet 1	MPC Consulting Engineers	21/06/2024
T02	3	Turning Path Entry Plan – Sheet 2	MPC Consulting Engineers	21/06/2024
T03	3	Turning Path Entry Plan – Sheet 3	MPC Consulting Engineers	21/06/2024
T04	3	Turning Path Entry Plan – Sheet 4	MPC Consulting Engineers	21/06/2024
T05	3	Turning Path Exit Plan – Sheet 1	MPC Consulting Engineers	21/06/2024
T06	3	Turning Path Exit Plan – Sheet 2	MPC Consulting Engineers	21/06/2024
T07	3	Turning Path Exit Plan – Sheet 3	MPC Consulting Engineers	21/06/2024
T08	3	Turning Path Exit Plan – Sheet 4	MPC Consulting Engineers	24/06/2024
Waste Management Plan
Waste Management Plan	Andrey Vinogradov	21/06/2024
Geotechnical Report
Geotechnical Report	5QS Consulting Group	1/07/2024

2. The amended DA was filed with the Court on 27 November 2024.

26. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application number DA48/2024 as amended for the demolition of existing structures and construction of four dwellings on the land at Lot 1, Lot 2 and Lot 3 in SP 15362 known as 40 Bogan Road, Booker Bay, subject to the conditions of consent in Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A

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Decision last updated: 03 December 2024