Bruce Kerr Pty Ltd v Central Coast Council

[2025] NSWLEC 1515

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bruce Kerr Pty Ltd v Central Coast Council [2025] NSWLEC 1515

Hearing dates:

Conciliation Conferences on 18 December 2024 and 5 May 2025

Date of orders:

22 July 2025

Decision date:

22 July 2025

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment to the development application, in the agreed amount of $5,000, such amount to be paid within 28 days of the date of this order.

(2) The appeal is upheld.

(3) Development consent is granted to development application number DA/1371/2023, as amended, for the Stage 1 subdivision of Lot 1 DP 1175842 identified as No. 260 Empire Bay Drive, Empire Bay, into four (4) rural allotments being proposed Lot 1 to proposed Lot 4 and demolition of the existing dwelling house and ancillary structures, and the Stage 2 subdivision of proposed Lot 4 created under stage 1 into two allotments being proposed Lot 41 and proposed Lot 42, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – Interim Development Order 112 - orders

Legislation Cited:

Biodiversity Conservation Act 2016, ss 6.12, 6.15,7.2, 7.3, 7.7, 7.12, 7.16

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 4.17, 8.7, 8.15, Sch 1, Div 2, s 7, Div 4.8

Land and Environment Court Act 1979, s 34

Local Government Act 1993

Roads Act 1993, s 138

Rural Fires Act 1997, s 100B

Biodiversity Conservation Regulation 2017, cl 7.2

Central Coast Local Environmental Plan 2022, cll 2.6, 4.1, 4.6, 5.10, 5.21, 7.1

Central Coast Development Control Plan 2022, Chs 2.4, 2.14, 2.17; 3.1, 3.5

Environmental Planning and Assessment Regulation 2021, s 38

Interim Development Order 122, cll 4, 5, 18

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch 6

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119

Texts Cited:

Central Coast Development Control Plan 2022

Category:

Principal judgment

Parties:

Bruce Kerr Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
A McKelvey (Solicitor) (Applicant)
M Ball (Solicitor) (Respondent)

Solicitor:
Sparke Helmore (Applicant)
MBM Legal and Conveyancing (Respondent)

File Number(s):

2024/244663

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 DA/1371/2023 (the DA). The DA sought consent for the subdivision of land to create 5 rural residential lots (and necessary associated infrastructure) on land described as Lot 1 DP 1175824 and identified as No. 260 Empire Bay Drive, Empire Bay (the site).

2. The DA was lodged with the Respondent on 6 November 2023. The Respondent lodged a Class 1 Application with the Court on 3 July 2024.

3. The Respondent filed its Statement of Facts and Contentions (the SOFAC) with the Court on 7 August 2024. The Applicant filed its Statement of Facts and Contentions in reply on 27 August 2024.

4. 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 18 December 2024. I presided over the conciliation conference, which commenced with an on-site view. No submissions were made in response to the public notification of the DA and thus no submitters attended the on-site view.

5. At the s 34 conciliation conference, the parties advised that they wished to continue to reach a s 34 agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The s 34 conciliation conference was adjourned a number of times until the parties reached an agreement on amendments to the DA that were acceptable to both parties.

6. A signed s 34 agreement and Annexure A (Conditions of Consent) were filed with the Court on 5 May 2025. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites (Jurisdictional Statement).

7. An amended s 34 agreement and Annexure A were filed with the Court on 7 May 2025. Annexure A was amended to include a Housing and Productivity Contribution (the contribution) condition of consent No. 7.19 in Stage 1 and condition of consent 7.10 in Stage 2 to allow for payment of the contribution to be split across Stage 1 and Stage 2 subdivisions.

8. The parties advise that the DA, as amended, has resolved the Respondent’s contentions and prompted the parties to settle the matter by entering into a s 34 Agreement, subject to the conditions of consent at Annexure A to the s 34 Agreement.

9. The parties advise that the key changes in the amended DA are as follows:

1. revised lot layout;

2. revised indicative dwelling locations;

3. revised access to proposed lots;

4. revised emergency access;

5. amended Vegetation Management Plan;

6. the provision of additional information regarding:

1. tree removal and retention;

2. servicing; and

3. bushfire.

10. 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.

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

12. 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

13. The parties advise that the Applicant is the registered proprietor of the land. The owner’s consent is included in the Class 1 Application.

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

14. The DA was publicly notified between 17 November 2023 to 18 December 2023. No submissions were received in response to the notification of the proposed development.

Referrals

15. The parties advise that:

1. DA was referred to Transport for NSW (TfNSW) under s 138 of the Roads Act 1993; and

2. the DA was referred to the NSW Rural Fire Service under s 100B of the Rural Fires Act 1997.

Conditions

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

17. The parties advise that the conditions of consent include a condition imposed under cl 18(5)(b) of former Interim Development Order 122 (the former IDO) reflecting the agreement of the Applicant to make the contribution in accordance with cl 18(4)(b)(ii) to enliven the jurisdiction to grant consent to subdivide the site so as to create 4 lots of less than 2 ha.

Biodiversity Conservation Act 2016

18. Part 7 of the Biodiversity Conservation Act 2016 (the BC Act) requires biodiversity assessment where development or activity is “likely to significantly affect threatened species” pursuant to s 7.2 of the BC Act. The test for determining whether proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats, is at s 7.3 of the BC Act

19. A proposed development is “likely to significantly affect threatened species” if:

1. it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in s 7.3 of the BC Act; or

2. the development exceeds the Biodiversity Offsets Scheme (BOS) threshold if the BOS applies to the impacts of the development on biodiversity values; or

3. it is carried out in a declared area of outstanding biodiversity value.

20. Development will exceed the BOS threshold where clearing is proposed on land contained on a Biodiversity Values Map made under the Biodiversity Conservation Regulation 2017 (‘BC Reg’), or areas of vegetation are cleared that exceed those specified in cl 7.2 of the BC Reg.

21. If a proposed development is likely to significantly affect threatened species, the application for development consent is to be accompanied by a Biodiversity Development Assessment Report pursuant to s 7.7(2) BC Act.

22. The parties advise that:

1. the proposed development includes the clearing of native vegetation to an extent that exceeds 0.25 ha and so the BOS is triggered;

2. consistent with s 7.7 of the BC Act an amended Biodiversity Development Assessment Report dated June 2024, prepared by AEP (the BDAR) has been provided which properly assesses the biodiversity values of the site and the impact of the proposed subdivision as required by s 6.12 of the BC Act; and

3. The parties are satisfied that the BDAR has been properly certified by an accredited person as required by s 6.15 of the BC Act.

23. The parties consider that the proposed development implements appropriate avoidance and minimisation measures for the following reasons:

1. The proposed development avoids impacts on biodiversity values by:

1. not removing any native vegetation in the part of the site formerly zoned 7(a) Conservation and Scenic Protection zone under Interim Development Order 122 (the IDO);

2. having a lot layout which provides for indicative dwelling locations and associated asset protection zones which minimise tree removal and retain the most significant trees in the balance of the site; and

3. providing where possible for shared access to proposed lots to minimise further loss of vegetation associated with access driveways.

2. The BDAR further recommends the implementation of mitigation measures through the Vegetation Management Plan (VMP) and concludes that the VMP will enhance and protect that vegetation, and that biodiversity credits will offset other residual impacts; and

3. native vegetation in an area of approximately 23000 m² of the Site is to enhanced under the VMP. This vegetation forms part of a vegetation corridor connecting with adjoining privately owned land as well as the adjoining national park.

24. The parties advise that:

1. Concurrence of the Environment Agency Head is not required under s 7.12(2) of the BC Act as the BDAR has been prepared and Condition 3.7 of the agreed conditions of consent require the applicant to retire biodiversity credits to offset the residual impact on biodiversity values of at least the number and class specified in the BDAR;

2. Section 7.13(2) of the BC Act provides that the consent authority, when determining an application under Pt 4 of the EPA Act, is “to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application”. The Court is able to take into consideration the likely impact of the subdivision as amended on biodiversity values set out in the BDAR and can be satisfied that the impacts are acceptable;

3. If consent is granted and the BOS applies to the proposed development, the conditions of consent must require the Applicant to retire biodiversity credits to offset the residual impact on biodiversity values of the number and class specified in the report: s 7.13(3) BC Act. Agreed condition 3.7 requires biodiversity credits to be retired in accordance with the BDAR; and

4. The Court can be satisfied that the proposed development is unlikely to have serious and irreversible impacts on biodiversity values under s 7.16(2) BC Act.

25. The Court is satisfied the requirements of the BC Act have been met and that the site is suitable for the proposed development with the conditions of consent as imposed in the development consent.

Roads Act

26. Condition 3.3 of the Stage 1 conditions of consent imposes requirements for roadworks required to Empire Bay Drive, and for the Applicant to obtain a Road Act Works Approval for all works required within the road reserve.

Rural Fires Act 1997

27. The proposed development includes the subdivision of bush fire prone land which can be lawfully used for residential purposes. Under s 100B of the Rural Fires Act 1997, a Bush Fire Safety Authority is required for the proposed development.

28. The parties advise that on 18 July 2024, the NSW Rural Fire Service issued General Terms of Approval (GFA’s) under Div 4.8 of the EPA Act and a Bush Fire Safety Authority for the proposed subdivision. Condition 1.2 of the conditions of consent requires compliance with these GFA’s.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

29. The parties advise that:

1. The site is not located within any of the local government areas listed in s 2.3(1) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) and accordingly, Ch 2 of the Biodiversity SEPP is not applicable.

2. The site is not located within any of the specified water catchments in s 6.1 of the Biodiversity SEPP and accordingly, Ch 6 Water Catchments of the Biodiversity SEPP does not apply.

State Environmental Planning Policy (Resilience and Hazards) 2021

30. Chapter 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) relates to Coastal Management. The site is mapped as “Coastal Environment Area” and the provisions of s 2.10 of the Resilience SEPP apply. The parties are satisfied that the proposal does not have an adverse impact on any of the matters set out in s 2.10(1) of the Resilience SEPP.

31. The site is also mapped as “Coastal Use Area” and the provisions of s 2.11 of the Resilience SEPP apply. The parties are satisfied that the proposal does not have an adverse impact on the matters set out in s 2.11(1) of the Resilience SEPP.

32. Section 4.6 of the Resilience 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 the consent authority is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that:

1. The Statement of Environmental Effects, prepared by Interface Planning dated June 2023 confirms that the site is not identified as a contaminated site and the historic uses of the site do not suggest any likelihood of contamination;

2. Furthermore, there are no known previous uses that would lead to the site being contaminated or unsuitable for the proposed use; and

3. The Court can be satisfied that no further investigation is warranted and the matters set out in s 4.6 of the Resilience SEPP are satisfied.

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

State Environmental Planning Policy (Transport and Infrastructure) 2021

34. Empire Bay Road is a two-lane classified State Road. Section 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (the Transport SEPP) applies.

35. The parties advise that:

1. The issues requiring consideration under s 2.119 of the Transport SEPP are addressed at page 16 of the traffic report of McLaren Traffic Engineering and Road Safety Consultants (McLaren report) dated 9 June 2023 which was submitted with the DA;

2. The parties are satisfied about the matters in s 2.119(2)(a) and (b) of the Transport SEPP for the reasons outlined in the McLaren report and agree that it is open to the Court to also be satisfied;

3. The parties also agree that the proposed development, being subdivision, is not of a type that is sensitive to traffic noise or vehicle emissions; and

4. To the extent future development might be sensitive, the parties agree that building envelopes have been designed and located to ameliorate those issues allowing the Court to be satisfied of the matters required by s 2.119(2)(c) of the Transport SEPP.

Interim Development Order 122

36. At the conclusion of the s 34 conciliation conference, the environmental planning instrument that applied to the site was the former IDO.

37. However, the Central Coast LEP Amendment No. 8 (the LEP Amendment) came into effect on Friday 9 May 2025. The LEP Amendment relates to the Deferred Lands Planning Proposal, repeals the former IDO and applies the Central Coast Local Environmental Plan 2022 (the LEP) to the site with a zoning of C2, C3 and C4.

38. The parties advise that the development application the subject of this appeal is to be determined as if this amended LEP had not been made, pursuant to new cl 1.8A(3) in the LEP. 

39. The parties advise that the relevant provisions of the former IDO are as follows:

1. The site is zoned partly 7(a) Conservation and Scenic Protection (Conservation) and partly 7(c2) Conservation and Scenic Protection (Scenic Protection – Rural Small Holdings) pursuant to cl 4 of the former IDO;

2. Pursuant to cl 5 of the former IDO, the consent authority must not grant consent unless:

1. It has taken into consideration the objectives of the zone and the consistency of the development within those objectives as well as the objectives of the Local Government Act 1993 relating to sustainable development;

2. it has taken into consideration the character of the development site and the surrounding area, where, for the purpose of this provision, character means the qualities that distinguish each area and the individual properties located within that area.

40. The parties submit that the proposed development is consistent with the objectives of the 7(a) (Conservation) zone and 7(c2) (Scenic Protection – Rural Small Holdings) zone in the former IDO.

41. The parties advise that the proposed subdivision for which consent is sought is permissible with consent, pursuant to clause 18(4) and (5) of the former IDO.

Central Coast Local Environmental Plan 2022

42. The LEP now applies to the site and to the proposed development. The parties advise that the following provisions of the LEP when in draft form had been considered pursuant to s 4.15(1)(a)(ii) of the EPA Act in the assessment of the DA:

1. Clause 2.6 (Subdivision – consent requirements) – subdivision of land zoned C4, C3 and C2 is permissible with consent.

2. Clause 4.1 (Minimum subdivision lot sizes) – minimum lot sizes of 2 ha for land in the C4 zone, and 40 ha for land in the C3 and C2 zones apply.

3. Clause 4.6 (Exceptions to development standards) – cl 4.6(6) prohibits subdivision of land zoned C2, C3 or C4 which would result in 2 or more lots of less than the applicable minimum lot size and subdivision of land which will result in a lot that is less than 90% of the applicable minimum lot size. Accordingly, consent could not be granted to the proposed subdivision under the LEP unless it contained, when made, a savings provision for development applications made but not finally determined before the Draft LEP is made. This savings provision is contained at cl 1.8A(3) in the LEP which is now made.

4. Clause 5.10 (Heritage conservation) – the site does not contain a heritage item and is not located within a heritage conservation area. Accordingly, cl 5.10 of the LEP is not enlivened.

5. Clause 5.21 (Flood Planning) – cl 5.21 of the LEP applies to land identified as “Flood planning area” on the Flood Planning Map and land at or below the flood planning level and provides that development consent must not be granted to development unless the consent authority is satisfied of the matters listed subclause (2). Parts of the site are subject to the 1% AEP flood event. However, each proposed lot in the subdivision will have areas which are not subject to flooding for future residential development.

1. Clause 7.1 (Acid Sulfate Soils) – the site is not mapped as being affected by acid sulfate soils. It is within 400m of Class 4 acid sulphate soils and as such is considered Class 5 acid sulphate soil. The parties agree there are no constrains arising for the proposed development arising from the site’s classification as Class 5 acid sulphate soils. Accordingly, the parties are satisfied that the requirements of cl 7.1, to the extent they apply, are met.

Central Coast Development Control Plan 2022

43. The parties advise that they are satisfied that the proposed development complies with the following relevant provisions of the Central Coast Development Control Plan (the DCP):

1. Chapter 2.4 – Subdivision;

2. Chapter 2.14 – Site Waste Management;

3. Chapter 2.17 – Character and Scenic Quality;

4. Chapter 3.1 – Floodplain Management and Water Cycle Management; and

5. Chapter 3.5 – Tree and Vegetation Management.

Conclusion

44. Having considered the advice of the parties provided above at [13]-[43], 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.

45. 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.

46. 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 DA/137/2023 made on 5 May 2025 to rely on the documents specified below:

Plan No.	Revision No.	Plan Title	Drawn By	Dated
1F	Stage 1 Subdivision Layout Plan – Sheet 2 of 3 Sheets	Bissett & Wright	4/02/2025
1F	Stage 2 Subdivision Layout Plan - Sheet 3 of 3 Sheets	Bissett & Wright	4/02/2025
1G	-	Building Area and APZ Plan All Lots - Sheet 1 of 2 Sheets	Bissett & Wright	4/02/2025
1G	-	Building Area and APZ Plan With Trees - Sheet 2 of 2 Sheets	Bissett & Wright	4/02/2025
1F	-	Overall Subdivision Plan Layout – Sheet 1 of 3 Sheets	Bissett & Wright	4/02/2025

Document Title	Version No.	Prepared by	Dated
Statement of Environmental Effects	B	Interface Planning	June 2023
Bushfire Assessment Report	-	Integrated Site Planning	June 2024
Supplementary Bushfire Assessment Report	-	Integrated Site Planning	January 2025
Hydraulic Drainage Design Concept	-	Ibrahim Stormwater Consultants	May 2024
Waste Management Plan	-	Chris smith	Undated Provided June 2024
Traffic and Parking Impact Assessment	A	McLaren – Traffic Engineering & Road Safety Consultants	9/06/2023
Due Diligence Report For Aboriginal Objects	-	Integrated Site Planning	April 2023
Biodiversity Development Assessment Report	03	Anderson Environment & Planning (AEP)	June 2024
Arboricultural Impact Assessment	-	Advanced Treescape Consulting	7/02/2025
Vegetation Management Plan	5	AEP (Ref: 3152)	19/03/2025
Concept Access Driveway Plan - Long Section, Plan View, Location Plan – Sheet 1 of 3 (Plan 1C )	-	Bissett & Wright	18/01/2025
Concept Access Driveway Plan - Cross Sections, Construction Notes – Sheet 2 of 3 (Plan 1C )	-	Bissett & Wright	18/01/2025
Concept Access Driveway Plan – Cross Sections, Construction Notes – Sheet 2 of 3 (Plan 1C )	-	Bissett & Wright	18/01/2025
Cost Estimate	-	DIG4U Earthworks	20/10/2023

47. The Court orders that:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment to the development application, in the agreed amount of $5,000, such amount to be paid within 28 days of the date of this order.

2. The appeal is upheld.

3. Development consent is granted to development application number DA/1371/2023, as amended, for the Stage 1 subdivision of Lot 1 DP 1175842 identified as No. 260 Empire Bay Drive, Empire Bay, into four (4) rural allotments being proposed Lot 1 to proposed Lot 4 and demolition of the existing dwelling house and ancillary structures, and the Stage 2 subdivision of proposed Lot 4 created under stage 1 into two allotments being proposed Lot 41 and proposed Lot 42, subject to the conditions of consent in Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A (318 KB, pdf)

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Decision last updated: 22 July 2025