Blue Group Residential Pty Ltd v Central Coast Council

[2023] NSWLEC 1210

Land and Environment Court

New South Wales

Medium Neutral Citation:

Blue Group Residential Pty Ltd v Central Coast Council [2023] NSWLEC 1210

Hearing dates:

Conciliation Conference on 14 February, 11 April 2023

Date of orders:

04 May 2023

Decision date:

04 May 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) Leave is granted to the Application to amend the Development Application and rely on the plans listed at [8].

(2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the Development Application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(3) The appeal is upheld.

(4) Development Application number 481/2022 for the demolition of existing structures and construction of multi-dwelling housing and associated works at 6 Fielder Street, West Gosford is approved subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition and new multi dwelling housing – conciliation conference – amended plans – agreement between the parties – orders made

Legislation Cited:

Central Coast Local Environmental Plan 2022

Contaminated Land Management Act 1997, Pt 3 Div 2

Environmental Planning and Assessment Act 1979, ss 8.15, 8.7, 4.12

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Environmental Planning Policy (Precincts - Regional) 2021, Ch 5, ss 5.13, 5.17, 5.26, 5.28, 5.39, 5.45, 5.55

Land and Environment Court Act 1979, ss 34, 39

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

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.2, 2.10, 2.11, 2.12, 2.13, 4.6

State Environmental Planning Policy No 55-Remediation of Land

Texts Cited:

Cardno, Coastal Zone Management Plan for Brisbane Water Estuary, July 2012

Category:

Principal judgment

Parties:

Blue Group Residential Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
B Dyer (Solicitor) (Applicant)
K Mortimer (Solicitor) (Respondent)

Solicitors:
Maddocks (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/277728

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) by Blue Group Residential Pty Ltd (the Applicant) against the deemed refusal of Development Application DA/481/2022 by Central Coast Council (Respondent). The Development Application seeks consent for demolition of the existing structures and the construction of a multi-dwelling housing development comprising of 5 terraces at 6 Fielder Street, West Gosford (Lot B DP 329970, the Site).

2. A conciliation conference was held between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) on 14 February and 11 April 2023. I presided over the conciliation conference. Following the conciliation conference, the parties reached an agreement based on amended plans and documents that they considered resolved the contentions before the Court. That agreement is for the grant of the application, as amended, subject to conditions.

3. The amendments proposed by the Amended Plans primarily comprise the following:

1. The reduction in the number of proposed dwellings from 6 to 5;

2. reducing the floor space ratio (FSR) to approximately 10% exceedance of the FSR control;

3. Increasing the setbacks to the north, east and west of the proposed building to boundary to 3m – retaining the southern setback of 3.5m;

4. Changing the proposed siting of bins for proposed dwellings 2, 3 and 5 so that they are now located in a common location on the Site as to avoid any potential conflict between bin location and parking spaces;

5. Changes to footpath location to Fielder Street, and extension of footpath along Hely Street;

6. Provision of 2 visitor parking spaces on the Site;

7. Increase in landscaping and planting in the northern and eastern setbacks;

8. Including a lift to the adaptable dwelling, no. 5;

9. Changing the design presentation to Fielder Street to provide further articulation, and providing change in presentation of the proposed western elevation as well as a sliding gate that is proposed to be on a timer as to it being opened and closed.

4. 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 on the basis that:

1. The Site is owned by the Applicant. For the purposes of s 4.12 of the EP&A Act and s 23 of Environmental Planning and Assessment Regulation 2021 (EP&A Regulation), the owner’s consent to the making of the development application is included with the Development Application.

2. The Development Application was notified to nearby and adjoining properties between 20 May and 10 June 2022. No submissions were received.

3. In determining the Development Application, consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP). I am satisfied that the likelihood of contamination is low and that the Site will be suitable for the proposed development given:

1. Council’s records indicate that the Site has only been used for residential uses;

2. the subject site and surrounding land are currently not zoned to allow for any uses or activities listed in Table 1 of the contaminated land planning guidelines of State Environmental Planning Policy No 55-Remediation of Land; and

3. the Site does not constitute land declared to be an investigation area by a declaration of force under Div 2 of Pt 3 of the Contaminated Land Management Act 1997.

4. there is no change of use of the Site proposed by the Development Application.

4. Pursuant to Chapter 2: Coastal Management of the Hazards SEPP, the Site is identified as a Coastal Environment Area and Coastal Use Area. I accept the agreement of the parties that the subject application is consistent with the Aim of the Chapter and meets the requirements of s 2.10 (Development on land within the coastal environment area) and s 2.11 (Development on land within the coastal use area) of the Hazards SEPP. Given the distance of the Site from the Brisbane Water, I can be satisfied of the matters in ss 2.10(2) and 2.11(1)(b) of the Hazards SEPP with the reasons that follow.

• By reason of being in the Coastal Environment Area and Coastal Use Area, the Site is within the coastal zone and ss 2.12 and 2.13 of the Hazards SEPP apply. Given the distance of the Site from Brisbane Water, I am satisfied that the development is not likely to cause an increased risk of coastal hazards on the Site or on other land.

• Section 2.13 of the Hazards SEPP requires the consent authority to take into consideration the relevant provisions of any certified coastal management program that applies to the land.

• The Coastal Zone Management Plan for Brisbane Water Estuary dated July 2012 (CZMP), continues to have effect until 31 December 2023. The CZMP is taken to be a certified coastal management program pursuant to s 2.2 of the Hazards SEPP.

• The Site is located within the Catchment Boundary shown in Figure 1.1 of the CZMP, but is not marked as being subject to any Management Actions in the relevant Zone.

5. The development is BASIX affected development pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX). The Development Application is accompanied by the required BASIX certificate.

6. The Central Coast Local Environmental Plan 2022 has no effect as a result of the application of Chapter 5 – Gosford City Centre of State Environmental Planning Policy (Precincts - Regional) 2021 (Precincts SEPP). Pursuant to s 5.13(2) of the Precincts SEPP, in determining the Development Application I must have regard to the objectives of the R1 General Residential Zone, which provide:

1 Objectives of zone

• 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 ensure that development is compatible with the desired future character of the zone.

• 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 demands on services beyond the level reasonably required for multi dwelling housing or other similar types of development.

7. Development for the purpose of multi-dwelling housing is permitted with consent in the zone.

8. Pursuant to s 5.17 of the Precincts SEPP, the demolition of a building may only be carried out with a development consent. The Development Application is seeking consent for demolition.

9. Section 5.26 of the Precincts SEPP provides that the maximum FSR for a building on any land is not to exceed the FSR shown for the land on the Floor Space Ratio Map. The FSR shown on the relevant map identifies the Site as having an FSR of 2:1. However, s 5.55(3) provides for additional standards that apply to the Site, which because the Site has an area of less than 1,000m² effectively reduces the FSR specified for the Site to 0.75:1. The application relies on a written request to vary the FSR standard pursuant to s 5.28 of the Precincts SEPP. I have reviewed the request and, in accordance with s 5.28 of the Precincts SEPP I am satisfied that:

• The written request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary as the objectives of the height development standard are met, notwithstanding the noncompliance (s 5.28(3)(a) of Precincts SEPP).

• The written request adequately establishes sufficient environmental planning grounds that justify the breach of the height standard (s 5.28(3)(b) of Precincts SEPP).

• On the preceding basis, I am satisfied that the requirements of s  5.28 (4)(a)(i) of Precincts SEPP are met.

• For the reasons outlined in the written request, I am satisfied that the development is in the public interest as it is consistent with the objectives of the R1 General Residential zone and the FSR standard. On this basis, I am satisfied that the requirements of s 5.28(4)(a)(ii) of Precincts SEPP are met.

• Pursuant to s 5.28(5) of Precincts SEPP, I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

• The states of satisfaction required by s 5.28 of the Precincts SEPP have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the control.

10. Pursuant to s 5.39 Acid Sulfate Soils of Precincts SEPP, the Site is identified as Category 5 Acid Sulfate Soils. For Category 5 land, an acid sulfate soils management plan is required where works are within 500m of adjacent Class 1-4 land that is below 5m Australian Height Datum (AHD) and where the water table is likely to be lowered below 1m AHD. The Proposed Development on the Site is not below 5m AHD and the works are not considered likely to lower the water table. No further assessment is required, and the section is satisfied.

11. Section 5.45(3) of the Precinct SEPP provides that development consent must not be granted for development to which this section applies unless the consent authority considers that the development exhibits design excellence. Section 5.45(4) of the Precinct SEPP sets out those matters that the Court must have regard to. The parties have submitted an assessment addressing the requirements of s 5.45(4) of the Precincts SEPP. Having considered the statement, the architectural plans and the matters at s 5.45(4) of the Precincts SEPP, I am satisfied that the development exhibits design excellence.

5. Based on the amended plans and supporting documents to the application, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

6. 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.

7. 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.

8. In the agreed orders the parties seek the Court, pursuant to s 39(2) of the LEC Act, as consent authority under cl 38(1) of the EP&A Regulation, to approve the application to amend their Development Application. Order 1 is to that effect. The relevant documents are as follows:

Architectural Plans by EMBECE Architects

Plan No.	Revision No.	Plan Title	Dated
0000	I	Cover Sheet	17/03/2023
0001	C	Photomontage	03/03/2023
0500	G	Demolition Plan	30/03/2023
1101	O	Proposed Level 1 Plan	17/04/2023
1102	K	Proposed Level 2 Plan	17/04/2023
1103	K	Proposed Level 3 Plan	17/04/2023
1104	K	Proposed Roof Plan	17/04/2023
1105	F	Adaptable Unit Plans	03/03/2023
2000	H	Proposed North and South Elevations	04/04/2023
2010	H	Proposed East and West Elevations	04/04/2023
3000	H	Proposed Sections	04/04/2023
8101	D	Shadow Diagrams – Plan	03/03/2023
8102	D	Shadow Diagrams – 3D	03/03/2023
9013	G	Area Calculations	17/04/2023

Civil Engineering Plans by Burgess, Arnott & Gravia

Plan No.	Revision No.	Plan Title	Dated
2021-193-H1	J	Stormwater Drainage Site/Ground Floor Plan	05/04/2023
2021-193-H2	I	Stormwater Drainage Level 2 & Level 3 Plans and Driveway Section	05/04/2023
2021-193-H3	H	Stormwater Drainage Roof Plan and Details	05/04/2023
2021-193-H4	H	Stormwater Drainage OSD Plan and Section	05/04/2023
2021-193-H5	C	Stormwater Drainage Central Coast Council Standard Details Sheet	05/04/2023
2021-193-P1	F	Site Soil and Water Management Site Plan & Details	05/04/2023
2022-193-C1	D	Civil Drawing Sheet 1 of 5 – Site Dimensions Plan	05/04/2023
2022-193-C2	D	Civil Drawing Sheet 2 of 5 – Hely St Centreline & Kerb Sections Sheet	05/04/2023
2022-193-C3	D	Civil Drawing Sheet 3 of 5 – Driveway sections Sheet + Council Standard Details Sheet 1	05/04/2023
2022-193-C4	D	Civil Drawing Sheet 4 of 5 – Council Standard Details Sheet 2	05/04/2023
2022-193-C5	D	Civil Drawing Sheet 5 of 5 – Council Standard Details Sheet 3	05/04/2023

Landscape Plans by Arcadia Landscape Architecture

Revision No.	Plan Title	Dated
E	Landscape Plan_Level 1	April 2023
E	Canopy Cover Comparison_Level 1	April 2023
E	Landscape Plan_Level 2 and 3	April 2023
E	Section AA - From Fuilder Street to Boundary	April 2023
E	Section BB - Fielder Street	April 2023
E	Section CC - Hely Street	April 2023
E	Planting Palette	April 2023

Document Title	Prepared by	Dated
Basix Certificate	Efficient Living	17 March 2023
Traffic Report	Stanbury Traffic Planning	March 2022
Waste Management Plan	David Sawkins	16 March 2023
Arborists Report	Urban Arbor	23 March 2022
Access Report	BCA Access	8 March 2022
Geotechnical Report	AW Geotechnics	30 November 2021

Orders

9. The Court orders that:

1. Leave is granted to the Application to amend the Development Application and rely on the plans listed at [8].

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the Development Application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The appeal is upheld.

4. Development Application number 481/2022 for the demolition of existing structures and construction of multi-dwelling housing and associated works at 6 Fielder Street, West Gosford is approved subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

22.277728 Annexure A (283303, pdf)

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Decision last updated: 04 May 2023