Burgess v Central Coast Council

[2024] NSWLEC 1227

Land and Environment Court

New South Wales

Medium Neutral Citation:

Burgess v Central Coast Council [2024] NSWLEC 1227

Hearing dates:

Conciliation conference 29 April 2024

Date of orders:

10 May 2024

Decision date:

10 May 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application Number DA/1719/2022 for the construction of an attached dual occupancy and 2 Lot Torrens Title subdivision on the land at 62 Thompson Street, Long Jetty (Lot 8 Sec 1 DP 12043), subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – attached dual occupancy and subdivision – amended plans and additional information – agreement between the parties – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation, s 23

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

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

Wyong Local Environmental Plan 2013, cll 2.3, 4.1D, 4.3, 4.4, 5.21, 7.1, 7.9

Texts Cited:

Wyong Development Control Plan 2013

Category:

Principal judgment

Parties:

Mark Burgess (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
D Tyrrell, solicitor (Applicant)
M Cottom, solicitor (Respondent)

Solicitors:
Tyrells Planning Law (Applicant)
Local Government Legal (Respondent)

File Number(s):

2023/343960

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of development application DA/1719/2022. The development application is proposed at 62 Thompson Street, Long Jetty.

2. The Court arranged a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on 29 April 2024. I presided over the conciliation conference. At the conciliation conference the parties reached an agreement as to the resolution of the contentions in the proceedings. The parties’ agreement is for the grant of consent to the application, as amended, subject to conditions. 

3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its function (this being the test applied by s 34(3) of the LEC Act). I am satisfied for the reasons that follow:

1. The Applicant is the registered proprietor of the site, and has given consent to the development application: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation)

2. The development application was notified by the Respondent between 10-24 November 2023. One submission was received. The plans proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by submissions. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: subs 4.15(1)(d) of the EPA Act.

3. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise the land has been historically utilised for residential use and there are no known previous uses that would lead to the site being contaminated or unsuitable for the proposed ongoing use for residential purposes. The development application does not propose a change of use. The parties agree and I accept that s 4.6 of SEPP RH is satisfied.

4. The development application was lodged, but not finally determined prior to 1 October 2023. Hence, the now repealed State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies to the application rather than State Environmental Planning Policy (Sustainable Buildings) 2022. Pursuant to SEPP BASIX and the EPA Regulation, the development application is a BASIX affected development. A BASIX certificate has been provided as part of the development application, satisfying this requirement.

5. The site is zoned R3 Medium Density Residential pursuant to Wyong Local Environmental Plan 2013 (LEP 2013). As required by cl 2.3 of LEP 2013 I have considered the zone objectives in determining the development application. Development for the purposes of an attached dual occupancy is permitted with consent in the zone.

6. Pursuant to cl 4.1D ‘Minimum Lot Sizes for Dual Occupancies’ of LEP 2013 the minimum lot size for an attached dual occupancy is 550m². The subject site has a overall size of 676m², compliant with the development standard.

7. Pursuant to cl 4.3 ‘Height of Buildings’ of LEP 2013 prescribes a maximum building height for the site of 12m. The proposed development has a maximum height of 7.5m which is compliant with the development standard.

8. Pursuant to cl 4.4 ‘Floor Space Ratio’ of LEP 2013 the subject site has a maximum floor space ratio (FSR) of 0.9:1. The proposed development has an FSR of 0.587:1, which complies with the development standard.

9. Pursuant to cl 5.21 ‘Flood Planning’ of LEP 2013 the site is located within a flood planning area. Development consent must not be granted to development on land within a floor planning area unless the consent authority is satisfied that:

(a)  is compatible with the flood function and behaviour on the land, and

(b)  will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

(c)  will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

(d)  incorporates appropriate measures to manage risk to life in the event of a flood, and

(e)  will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

10. In reaching the satisfaction required by subcl 5.21(2) of LEP 2013, the consent authority must consider the matters listed at subcl (3). The parties advise that the flood affectation of the subject site is minor, arising from overland flows. The development application is accompanied by Stormwater Engineering Plans which incorporates onsite detention and the provision of rainwater tanks and gravity discharge to the kerb. Having reviewed the development application and considered the matters at subcl (3), I accept the agreement of the parties that cl 5.21 of LEP 2013 is satisfied.

11. The site is identified as being affected by Class 5 acid sulfate soils and within 500m of adjacent classes on the Acid Sulfate Soil Map in cl 7.1 LEP 2013. The proposed development involves minimal excavation, predominately to accommodate footings. The subject site has a minimum relative level of RL 23.00 to Australian Height Datum (AHD). I accept I can be satisfied that the proposed development will not result in lowering of the water table below 1 metre AHD on adjacent Class 1, 2, 3 or 4 land.

12. Clause 7.9 ‘Essential Services’ requires the consent authority to be satisfied that the site has access to all essential services for the development including water, electricity, management of sewage, drainage and suitable vehicular access. The survey which forms part of the development application indicates the location of existing services. I accept the agreed position of the parties that cl 7.9 of LEP 2013 is satisfied.

13. Wyong Development Control Plan 2013 (DCP 2013) applies to the site. The statement of environmental impacts filed with the application details the compliance of the proposed development with DCP 2013. In determining the development application, I have considered the provisions of the development control plan: subs 4.15(1) of the EPA Act.

4. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, subs 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (subs 34(3)(b)).

5. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

6. The Court notes that:

1. The Respondent has approved, pursuant to s 38 of the EPA Regulation the Applicant amending development application DA/1719/2002 to rely on the following amended documents and additional information:

Plan No.	Revision No.	Plan Title	Drawn By	Dated
Sheet 2	A	Site Plan	Coast Aligned Building Design	Jan 2024
Sheet 3	A	Subdivision Concept Plan	Coast Aligned Building Design	Jan 2024
Sheet 4	A	Driveway layout -right hand side car manoeuvring	Coast Aligned Building Design	Jan 2024
Sheet 5	A	Driveway layout -left hand side car manoeuvring	Coast Aligned Building Design	Jan 2024
Sheet 6	A	Unit 1 courtyard plan	Coast Aligned Building Design	Jan 2024
Sheet 7	A	Unit 2 courtyard plan	Coast Aligned Building Design	Jan 2024
Sheet 8	A	Ground floor plan overall layout	Coast Aligned Building Design	Jan 2024
Sheet 9	A	First floor plan -unit 1 & 2 overall layout	Coast Aligned Building Design	Jan 2024
Sheet 10	A	Ground floor plan -unit 1 dimensioned	Coast Aligned Building Design	Jan 2024
Sheet 11	A	First floor plan -unit 1 dimensioned	Coast Aligned Building Design	Jan 2024
Sheet 12	A	Ground floor plan -unit 2 dimensioned	Coast Aligned Building Design	Jan 2024
Sheet 13	A	First floor plan -unit 2 dimensioned	Coast Aligned Building Design	Jan 2024
Sheet 14	A	First floor plan - unit 1 highlight wall & window layout	Coast Aligned Building Design	Jan 2024
Sheet 15	A	First floor plan - unit 2 highlight wall & window layout	Coast Aligned Building Design	Jan 2024
Sheet 16	A	Ground floor roof plan	Coast Aligned Building Design	Jan 2024
Sheet 17	A	First floor roof plan	Coast Aligned Building Design	Jan 2024
Sheet 18	A	Window Schedule	Coast Aligned Building Design	Jan 2024
Sheet 19	A	Sections	Coast Aligned Building Design	Jan 2024
Sheet 20	A	Elevations	Coast Aligned Building Design	Jan 2024
Sheet 21	A	Elevations	Coast Aligned Building Design	Jan 2024
Sheet 22	A	Site coverage/soft planting area diagram	Coast Aligned Building Design	Jan 2024
22-01CC	D	Landscape Plan	Brian Filby Landscape Design	April 2024
C01	1	Stormwater Plan	CivilCol Consulting Pty Ltd	September 2023
C02	1	Stormwater Plan	CivilCol Consulting Pty Ltd	September 2023
C03	1	Stormwater Plan	CivilCol Consulting Pty Ltd	September 2023
C04	2	Stormwater Plan	CivilCol Consulting Pty Ltd	March 2024
C05	2	Stormwater Plan	CivilCol Consulting Pty Ltd	March 2024
C06	1	Stormwater Plan	CivilCol Consulting Pty Ltd	September 2023

7. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application Number DA/1719/2022 for the construction of an attached dual occupancy and 2 Lot Torrens Title subdivision on the land at 62 Thompson Street, Long Jetty (Lot 8 Sec 1 DP 12043), subject to the conditions of consent in Annexure A.

D Dickson

Commissioner of the Court

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Annexure A

Decision last updated: 10 May 2024