Cox v Central Coast Council

[2025] NSWLEC 1004

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cox v Central Coast Council [2025] NSWLEC 1004

Hearing dates:

Conciliation Conference on 31 October 2024

Date of orders:

07 January 2025

Decision date:

07 January 2025

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA/151/2024 for construction of a dwelling house, swimming pool and ancillary development at Lot 15 in DP 25815 known as 38-66 Maitland Bay Drive, Killcare Heights NSW 2257, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – Aboriginal Heritage Significance – Interim Development Order No. 122 - 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, ss 34, 34AA

Rural Fires Act 1997, s 100B

Environmental Planning and Assessment Regulation 2021, ss 27, 38

Central Coast Local Environmental Plan 2022, cl 2.1

Interim Development Order No 122, cll 4, 5, 18, 20, 22, 28, 29, 38A

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4 s 4.7

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

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

Texts Cited:

Central Coast Development Control Plan 2022

Category:

Principal judgment

Parties:

Timothy Cox (First Applicant)
Bryony Cox (Second Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
N Hammond (Applicant)
M Fraser (Respondent)

Solicitor:
Tyrrells Law (Applicant)
MBM Legal and Conveyancing (Respondent)

File Number(s):

2024/209816

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 Central Coast Council of development application DA151/2024 (the DA). The DA seeks consent for the demolition of an existing dwelling and ancillary structures, the construction of a new dwelling with swimming pool and detached garage on land described as Lot 15 in DP 25815, known as 38-66 Maitland Bay Drive, Killcare Heights NSW 2257 (the site).

2. The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 26 June 2024.

3. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 31 October 2024. I presided over the conciliation conference. The on-site view was vacated as no submitters were to be heard and a s 34 agreement had been reached between the parties.

4. At the beginning of the conciliation conference, the parties confirmed 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.

5. Accordingly, the hearing was adjourned, and the matter proceeded under s 34 of the LEC Act. This decision involved the Court upholding the appeal and granting development consent to the DA, subject to conditions.

6. The signed s 34 agreement and Annexure A (Conditions of Consent) were filed on 30 October 2024. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites. The Jurisdictional Statement was filed with the Court on 30 October 2024. Amended plans and documents were finalised (the amended DA) and filed with the Court on 31 October 2024.

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

8. In particular the amended DA addressed the following matters:

1. The DA as lodged proposed a new driveway. The amended DA retains the existing driveway to provide for minimal interruption to the site;

2. The new construction now utilises the existing building footprint to minimise disturbance to aboriginal relics on the site; and

3. Tree removal on the site is restricted to smaller trees located under larger canopy trees.

9. The parties advise that the Aboriginal Heritage Joint Report prepared by the Applicant and Respondent and filed with the Court on 1 October 2024 supports the changes provided for in the amended DA.

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

Owner’s consent

13. The Development Application was made with the written consent of the owner of the subject site.

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

14. The DA was publicly notified from 22 March 2024 to 26 April 2024. No submissions were received during the notification period.

Conditions

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

Rural Fires Act 1997

16. Pursuant to s 100B of the Rural Fires Act 1997, a bush fire safety authority must be obtained before developing on bushfire prone land.

17. The NSW Rural Fire Service issued a bush fire safety authority for the proposed development on 2 April 2024, satisfying the requirement in s 100B.

Interim Development Order No 122

18. The site is zoned 7(a) Conservation and Scenic Protection (Conservation) under cl 4 of Interim Development Order No 122 (IDO 122).

19. Clause 5(3) of IDO 122 provides that Council must not grant development consent unless Council has taken into consideration the objectives of the zone and consistency of the proposed development with those objectives. Pursuant to cl 5(1) of IDO 122, the objectives of a zone are set out in the Table to cl 5.

20. The zone objectives of 7(a) Conservation and Scenic Protection (Conservation) are as follows:

1. The conservation and rehabilitation of areas of high environmental value;

2. The preservation and rehabilitation of areas of high visual and scenic quality in the natural landscape;

3. The provision and retention of suitable habitats for flora and fauna;

4. The prohibition of development on or within proximity to significant ecosystems, including rainforests and estuarine wetlands;

5. The provision and retention of areas of visual contrast within the City, particularly the “backdrop” created by the retention of the ridgelines in their natural state;

6. The provision of opportunities for informal recreational pursuits, such as bushwalking and picnics, in appropriate locations;

7. The minimisation or prohibition of development so that the environmental and visual qualities of the natural areas are not eroded by the cumulative impact of incremental, individually minor developments;

8. The minimisation or prohibition of development in areas that are unsuitable for development by virtue of soil erosion, land slip, slope instability, coastal erosion or bushfire hazard.

21. The parties advise, and I agree, that amended DA is consistent with the objectives of the 7(a) zone.

22. Clause 22 of IDO 122 concerns the restriction on the erection of dwelling houses in zone 7(a). Clause 22(2) provides that the Council may consent to the erection of one dwelling-house only on an allotment of land within the Zone No 7(a) having an area of less than 40 hectares if:

1. The allotment was in existence before 18 February 1977 and was not in the same ownership as any adjoining allotments at that date; or

2. The allotment was created after 18 February 1977 otherwise than under cl 18(4)(a) or cl 20.

23. The parties advise that the allotment was both in existence before 18 February 1977 and was not in the same ownership as any adjoining allotments at that date.

24. Clause 5(4) of IDO 122 provides that Council must take into consideration the character of the development site and the surrounding area. The parties advise that the character of the development site and the surrounding areas has been assessed and the proposed development will be consistent with Chapter 2.17 of the Central Coast Development Control Plan 2022 (the DCP).

25. Clause 28 of IDO 122 provides that within the 7(a) zone, the external surfaces of any building shall be of “prescribed materials”, meaning dark toned or dark coloured paint or pigment of low reflective quality, which blend with the landscape of the site on which they are to be used and its surroundings.

26. The parties agree that the materials selected for the proposed dwelling will be of a mid-tone, compatible with the existing dwelling house, with low reflective qualities which will be consistent with the requirements of cl 28 of IDO 122.

27. Clause 29 of the IDO 122 states as follows:

(1) Subject to subclause (2), the height of a building shall not exceed 8 metres.

(2) A building which departs from the minimum requirement prescribed by subclause (1) to a minor extent only may be erected with the consent of the Council.

28. The parties advise that the proposed dwelling has a maximum height of 5.6m, being a single storey development which complies with the 8m building height requirement in cl 29 of IDO 122.

29. Clause 38A(7) of IDO 122 states as follows:

Places of Aboriginal heritage significance

The consent authority must, before granting consent under this clause to the carrying out of development in a place of Aboriginal heritage significance:

(a) consider the effect of the proposed development on the heritage significance of the place and any Aboriginal object known or reasonably likely to be located at the place, and

(b) notify the local Aboriginal communities (in such way as it thinks appropriate) about the application and take into consideration any response received within 28 days after the notice is sent.

30. The parties advise that the site contains a registered Aboriginal rock art engraving, being a sandstone engraved art feature – a fish.

31. The parties advise that:

1. The site contains a registered Aboriginal rock art engraving, being a sandstone engraved art feature – a fish;

2. On 2 September 2024 the Applicant’s town planner wrote to the Darkinjung Local Aboriginal Land Council (DLALC) to carry out formal notification of the development;

3. On 11 September 2024 a representative of the DLALC inspected the property;

4. On 11 October 2024 the representative for the DLALC issued a letter to the parties; and

5. The parties’ aboriginal heritage experts agree that, as a result of amendments to the plans and documents and subject to imposition of the agreed conditions, there will not be any damage caused to the item. As there will be no harm to the item the provisions of the National Parks and Wildlife Act 1974 are not engaged.

32. The Applicant has prepared an Aboriginal Cultural Heritage Construction Management Plan to ensure careful management of the proposed excavation works. Conditions of consent will also be in place to protect the item.

33. The parties agree that the effect of the proposed development on the Aboriginal heritage item has been considered, the DLALC has been notified and its response has been taken into consideration, as required by cl 38A(7) of the IDO 122.

Central Coast Local Environmental Plan 2022

34. The site is a deferred matter under the Central Coast local Environmental Plan 2022 (the LEP) and is subject to the provisions under the Deferred Matters Lands Planning Proposal, which the Respondent advises has completed public exhibition but is yet to be gazetted.

35. The Respondent advises that the site is proposed to be zoned part C3 Environmental Management and part C2 Environmental Conservation under the LEP. The proposed development is wholly located within that part of the site proposed to be zoned C3 Environmental Management. Clause 2.1 of the LEP permits a ‘dwelling house’ design with consent in the C3 zone.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

36. Chapter 4 - Koala Habitat Protection 2021 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) applies to the site.

37. The site is identified as being located within the lands mapped on the Koala Development Application Map “Central Coast Management Area”, pursuant to s 4.7 of the Biodiversity SEPP. The subject property does not form part of an approved Koala Plan of Management.

38. The parties advise that a Koala Habitat Assessment was provided to support the DA which found that there was no evidence of koala use detected. The parties agree that the development application satisfies Ch 4 of the BC SEPP.

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

39. The Applicant submitted BASIX Certificate No 1734355S issued by Ella Fairbairn dated 1 February 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(EPA Reg 2021) as it has been issued no earlier than 3 months before the date on which the DA was made.

State Environmental Planning Policy (Resilience and Hazards) 2021

40. The parties advise that the site is not identified as being located within the Coastal Environmental Area or within the Coastal Use Area, pursuant to Ch 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP).

41. Section 4.6 of the 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 have advised that the site is proposed to remain for rural residential/environmental living purposes and that the site has been in residential use since its original subdivision and has a long-established use for residential purposes and that there is no evidence of any contamination, or any potentially contaminating uses having occurred in the past; 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.

Conclusion

42. Having considered the advice of the parties provided above at [13]-[41], I am satisfied that:

1. the Applicant’s amended DA can be approved having regard to the matters in subs 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.

43. 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.

44. 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.

45. 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/151/2024 made on 30 October 2024 to rely on the amended plans and documents specified below:

Architectural Plans Prepared by Woodward Architects
Plan No.	Plan Title	Revision	Dated
A.01	Cover Sheet	C	16/09/2024
A.02	Site Location	C	16/09/2024
A.03	Site Photographs 01	C	16/09/2024
A.04	Site Photographs 02	C	16/09/2024
A.05	Site Photographs 03	C	16/09/2024
A.06	Site Photographs 04	C	16/09/2024
A.07	Site Textures and Tones	C	16/09/2024
A.08	Site Survey – 1:800	C	16/09/2024
A.09	Site Survey – 1:500	C	16/09/2024
A.10	Site Analysis	C	16/09/2024
A.11	Site Plan	C	16/09/2024
B.01	Ground Floor Plan	C	16/09/2024
B.02	Roof Plan	C	16/09/2024
C.01	Elevations N & S	C	16/09/2024
C.02	Elevations E & W	C	16/09/2024
D.01	Section A & B	C	16/09/2024
D.02	Section C & D	C	16/09/2024
R.01	Material Finishes	C	16/09/2024
R.06	Ext. Door Schedules (1/2)	C	16/09/2024
R.07	Ext. Door Schedules (2/2)	C	16/09/2024
R.08	Ext. Window Schedule (1/2)	C	16/09/2024
R.09	Ext. Window Schedule (2/2)	C	16/09/2024
Landscape Plans by Lisa Peace Landscapes
Plan Title	Revision	Dated
Concept Plan	B	20/09/2024
Planting Schedule – Northern	B	20/09/2024
Planting Schedule – Southern	B	20/09/2024
Tree Schedule	B	20/09/2024
Supporting Documents
Document Title	Prepared by	Dated
On-Site Waste Water Disposal Capability Assessment	5QS Consulting Engineers	9/10/2024
Geotechnical Engineering	CKG	26/07/2024
Statement of Environmental Effects	Coastal Planning and Consulting	July 2024

2. The amended DA was filed with the Court on 31 October 2024.

46. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA/151/2024 for construction of a dwelling house, swimming pool and ancillary development at Lot 15 in DP 25815 known as 38-66 Maitland Bay Drive, Killcare Heights NSW 2257, 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: 07 January 2025