Cusumano v Central Coast Council

[2025] NSWLEC 1442

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cusumano v Central Coast Council [2025] NSWLEC 1442

Hearing dates:

Conciliation conferences held on 27 November 2024 and 19 March 2025

Date of orders:

19 June 2025

Decision date:

19 June 2025

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of the amendments to the development application in the agreed amount of $6,500.00 within 28 days of these orders.

(2) The appeal is upheld.

(3) Development Application No. 1062/2022 as amended for the demolition of the existing building and the construction of a residential flat building comprising 2 basement levels, ground floor and Levels 1 to 6, containing 15 units, including 8 affordable housing units at 176 Gertrude Street, Gosford, NSW, 2250, legally known as Lot 4 DP 12148, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

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

Legislation Cited:

Conveyancing Act 1919, s 88E

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 4.17, 7.12, 7.25, 8.15, 8.7, Sch 1, Div 2, s 7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 37, 38

Environmental Planning and Assessment Amendment (Gosford City Centre Special Contributions Area) Order 2018

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

State Environmental Planning Policy (Housing) 2021, ss 17, 18, 19, 20, Sch 7A, s 8

State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development

State Environmental Planning Policy (Precincts - Regional) 2021, Ch 5, Pt 5.3, Pt 5.5, ss 5.25, 5.26, Pt 5.6, s 5.36, Pt 5.7, ss 5.39, 5.40, Pt 5.7, ss 5.39, 5.40, Pt 5.8, ss 5.45, 5.55, Sch 10

State Environmental Planning Policy Amendment (Housing) 2023

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

Texts Cited:

Central Coast Council Regional Section 7.12 Development Contributions Plan 2019

Gosford City Centre Development Control Plan 2018

NSW Planning and Environment, Apartment Design Guide

NSW Planning and Environment, Housing and Productivity Contribution

NSW Rural Fire Service, Planning for Bushfire Protection 2019

Category:

Principal judgment

Parties:

Richard Cusumano (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
S Frost (Solicitor) (Applicant)
M Ball (Solicitor) (Respondent)

Solicitors:
Hall & Wilcox (Applicant)
MBM Legal and Conveyancing (Respondent)

File Number(s):

2023/338122

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 refusal of development application No DA/1062/2022 (DA) for the demolition of the existing building and construction of a six-storey in-fill affordable residential flat building development with basement parking at No. 176 Gertrude Street, Gosford, NSW 2250 legally known as Lot 4 DP 12148 (the site).

2. The DA as lodged was for a part 6, part 7 storey residential flat building comprising 12 x two-bedroom and 4 x three-bedroom units, and two basement levels accommodating 18 cars, vertical bicycle racks, plant and services, waste storage rooms and resident storage facilities with nine of the units proposed to be used for the purpose of affordable housing.

History of the DA

3. The DA was lodged with Central Coast Council (the Respondent) on 18 May 2022.

4. On 19 May 2023, the DA was refused by the Central Coast Local Planning Panel (the LPP). On 23 May 2023, the Notice of Determination was issued by the Respondent to the Applicant.

5. On 25 October 2023, the Applicant filed an appeal in Class 1 of the Court’s jurisdiction, under s 8.7 of the EPA Act against the refusal of the DA by the Respondent.

6. The Respondent advised that the LPP resolved on 14 December 2023 as follows:

“1 The Local Planning Panel note[s] the receipt of a Class 1 appeal in the Land and Environment Court to the refusal of Development Application DA/1062/2022; and

2 The Panel does not wish to give specific direction in the matter and notes that Council will proceed as deemed appropriate in accordance with its applicable powers and delegations.”

7. On 29 May 2024, the Court arranged a s 34 conciliation conference on site pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). After an on-site view and discussions between the parties, the s 34 conciliation conference was adjourned. Subsequently, the parties were unable to reach an agreement and the s 34 conciliation conference was terminated by the Court on 13 June 2024. The matter was fixed for a hearing on 27 November 2024.

8. On 14 October 2024, the Respondent agreed to an amendment of the Development Application (the amended DA) in accordance with s 37 of the Environmental Planning and Assessment Regulation 2021 (EP&A Regulation). The Court granted leave to the Applicant to rely on the plans the subject of the amended DA, which reduced the number of apartments from 16 to 15 together with a reduction in the number of bedrooms proposed across the Ground Floor, Level 1, and Levels 2 and 3 in the proposed development.

9. The Court also ordered on 14 October 2024 that the Applicant pay the Respondent’s costs thrown away in the amount of $5,500.00 pursuant to s 8.15(3) of the EPA Act. This amount is in addition to that contained in Order 1 of this judgment.

10. On 21 October 2024, the Respondent filed its amended Statement of Facts and Contentions (the amended SOFAC) reducing the real issue in dispute to a single contention concerning Waste Management.

11. On 7 November 2024, the Respondent filed a further amended Statement of Facts and Contentions (the further amended SOFAC) with the Court to correct the particulars concerning the relevant section of the Gosford City Centre Development Control Plan 2018 (the DCP).

12. On 18 November 2024, the Joint Expert Report concerning Waste Management was filed with the Court.

13. On 26 November 2024, a supplementary Joint Expert Report concerning Waste Management was filed with the Court.

The Hearing

14. The on-site view was held on 27 November 2024 attended by the Respondent and the Applicant. There was one submission made on the original DA. The submitter did not attend the on-site view.

15. One of the key issues discussed at the on-site view was the management of waste collection from the proposed development. Progress on this issue was hampered by the non-attendance of the Applicant’s waste management expert.

16. After the on-site view, the proceedings were adjourned to Online Court on 20 December 2024 for the Applicant to prepare amended plans for the experts’ consideration. The proceedings were fixed for a Hearing on 19 March 2025.

17. On 7 February 2025, the Joint Expert Report of Town Planning, Waste Management and Urban Design (the Joint Expert Report) was filed. The Joint Expert Report provided conceptual architectural plans, in which the experts agree, would allow for a heavy rigid vehicle to service the residential flat building and maintain the landscape and deep soil areas. These concept architectural plans now form the basis of a further amended DA.

18. The matter was adjourned to 13 February 2025 for a case management conference and then proceeded to a Hearing on 19 March 2025.

The s 34 Agreement

19. Prior to the commencement of the Hearing on 19 March 2025, the parties advised that they had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, based on the amended DA. This decision involved the Court upholding the appeal and granting development consent to the further amended DA subject to conditions.

20. The s 34 agreement was filed with the Court on 28 February 2025. The further amended plans were also filed with the Court on 28 February 2025. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites provided by the parties on 28 February 2025. An amended jurisdictional statement was provided to the Court on 19 March 2025.

21. The matter was adjourned to a s 34 conciliation conference which I conducted, commencing in the Court on 19 March 2025.

22. It is noted that as discussed at par [6] above and advised by the Respondent, the LPP has delegated the power to enter in the s 34 agreement to the Respondent.

23. The s 34 agreement is based on an amended DA (the further amended DA) which includes a number of amendments to the proposed development which allow for a heavy rigid waste collection vehicle to service the residential flat building and to maintain the landscape and deep soil areas on the site. Additional landscaping has been provided to address the boundary conditions. The dwelling configuration of the proposed development has been maintained at 15 units, including 8 affordable housing units.

24. 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.

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

26. 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 below.

Jurisdictional Matters

Environmental Planning and Assessment Act1979

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

27. The DA was publicly notified between 27 May 2022 to 21 June 2022. One submission was received during the public notification period.

28. The parties advise that on 3 February 2025, the submitter was notified of the amended DA and invited to address the Court at the on-site view. As noted in par [14] above, the submitter did not attend the on-site view.

29. The issues raised in the submission on the original proposed development included:

1. There was an incomplete Geotechnical Report;

2. The building height appeared excessive with the maximum building height unclear; and

3. Inadequate access for emergency services such as fire trucks, part of a dead-end and poor road conditions.

30. The parties advise that they agree that the concerns raised by the submitter have been addressed in the further amended DA.

Owner’s consent

31. The parties advise that the landowner of the site on which the development is proposed provided their consent to the DA on 20 April 2021.

Bushfire Prone Land (s 4.14(1))

32. The parties advise that the site is located within a bushfire prone area. Section 4.14 (1) of the EPA Act and Planning for Bushfire Protection 2019 apply to the proposed development.

33. The parties consider that the BCA Compliance Assessment Report dated 27 October 2021 (submitted with the DA) identifies some parts of the design to be compliant with fire resistance requirements. The parties advise that they are satisfied that further compliance strategies or a performance solution from an expert can be prepared at the Construction Certificate stage of the proposed development to satisfy the outstanding requirements.

34. Further, the Respondent advises that it is satisfied that the layout of the proposed development satisfies the requirements for building compliance in respect of fire resistance.

Conditions

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

Local Infrastructure Contributions

36. The parties advise that pursuant to ss 4.17(1) and 7.12 of the EPA Act, and the Central Coast Council Regional Section 7.12 Development Contributions Plan 2019, a contribution of $53,640.00 is payable to the Respondent.

Gosford City Centre Special Infrastructure Contribution Scheme

37. The Gosford City Centre Special Contributions Area Order 2018 (the Gosford City Centre SIC) was made on 10 October 2018 pursuant to s 7.25 of the EPA Act for new or upgraded infrastructure in the Gosford City Area. The levy applies to all new development on land zoned for residential or business use where the works are valued at $1 million or more.

38. On 1 October 2023, the Gosford City Centre SIC was repealed and the Housing and Productivity Contribution was introduced. However, development applications lodged prior to 1 October 2023 continue to be assessed under the Gosford City Centre SIC. The DA was lodged on 18 May 2022 and thus the Gosford City Centre SIC applies.

39. The parties advise that in accordance with the Environmental Planning and Assessment Amendment (Gosford City Centre Special Contributions Area) Order 2018 dated 10 October 2018, Council is required to impose a condition upon the grant of development consent for the Applicant to obtain a determination by the Planning Secretary for the payment of a special infrastructure contribution (refer to proposed condition of consent No. 2.8 at Annexure A to the s 34 agreement.)

State Environmental Planning Policy (Precincts – Regional) 2021

40. State Environmental Planning Policy (Precincts – Regional) 2021 (the Precincts SEPP) is the relevant environmental planning instrument that applies to the site. The site is within the Gosford City Centre and zoned R1 General Residential pursuant to Ch 5 of the Precincts SEPP.

41. The Precincts SEPP specifies that the objectives of the R1 General Residential zone are:

• 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.

42. The parties advise that they agree that the proposed development satisfies the objectives for the R1 General Residential zone for the Gosford city centre under the Precincts SEPP.

43. 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.

44. The proposed development is defined as a residential flat building under Sch 10 – Dictionary for Ch 5 under the Precincts SEPP. Development of a residential flat building is permissible with development consent in the R1 General Residential Zone pursuant to Pt 5.3 Land Use Table of the Precincts SEPP. The parties advise that the proposed development satisfies the definition of residential flat building under the Precincts SEPP.

45. Section 5.45 in Pt 5.8 of the Precincts SEPP relates to design excellence. The objective of s 5.45 of the Precincts SEPP is to ensure that any development exhibits design excellence that contributes to the natural, cultural, visual and built character values of the Gosford City Centre.

46. In considering whether a development satisfies the requirements of s 5.45 of the Precincts SEPP, a consent authority must have regard to the matters specified under s 5.45(4) of Pt 5.8 of the Precincts SEPP.

47. The parties submit that the proposed development satisfies the design excellence components of the s 5.45 of Pt 5.8 of the Precincts SEPP, and that it would be an appropriate transition from the present character of the area to the future desired character of the area for the following reasons:

1. The external appearance of the proposed development improves the existing relationship with the public domain by firstly providing a dedicated pedestrian access point to residents;

2. The front setback of the proposed development places balconies towards the street improving the appearance and surveillance of the proposed development;

3. The proposed development also showcases improved landscaping; habitable common spaces where more solar access is available;

4. The site is also suitable for the proposed development in that it is located in an accessible area close to public transport;

5. The amended design also provides for a range of residential unit types facilitating a number of housing options with a percentage of proposed apartments dedicated to affordable housing options; and

6. The development facilitates multi-vehicular access and parking with the installation of a Klaus Multi-base car stacker system for parking, on-site waste collection by a heavy rigid vehicle, and bicycle parking.

48. Section 5.25 of Pt 5.5 of the Precincts SEPP relates to height of buildings (HoB) and provides for a maximum HoB of 24 metres (m) on the site. The parties advise that the proposed development is under the maximum building height.

49. Section 5.26 of Pt 5.5 of the Precincts SEPP relates to floor space ratio (FSR) and provides for a maximum FSR for the land of 3:1 as per the Gosford City Centre Floor Space Ratio Map in the Precincts SEPP. However, the parties advise that:

1. The provisions at s 5.55(3) of Pt 5.8 of the Precincts SEPP further limit the FSR in the R1 General Residential zone to 1:1 for a site area less than 1,000m²;

2. As the subject site has an area less than 1,000m², and a frontage of less than 24m, the maximum FSR applicable to development is limited to 1:1; and

3. The proposed development is however subject to the provisions of the State Environmental Planning Policy (Housing) 2021 (the Housing SEPP) which provides for an increase the allowable FSR (refer to par [54] below).

50. Section 5.36 of Pt 5.6 of the Precincts SEPP relates to heritage conservation. The parties advise that this does not apply to the site as it is not identified as containing a heritage item and is not currently located within a Heritage Conservation Area. Further, the site is not within the vicinity of land on which a heritage item is located or land that is within a heritage conservation area, noting that there are no such items or areas immediately adjoining or across the road from the site.

51. Section 5.39 of Pt 5.7 of the Precincts SEPP relates to acid sulfate soils. The parties advise that the site is mapped as containing Class 5 acid sulfate soils, referring to works within 500m of adjacent Class 1 - 4 land that is below 5m Australian Height Datum and by which the watertable is likely to be lowered below 1m Australian Height Datum. Soil and Water Management Plans have been submitted with the DA. The parties submit that the proposed development does not contravene any development standards in the Precincts SEPP.

52. Section 5.40 of Pt 5.7 of the Precincts SEPP relates to flood planning. The parties advise that this does not apply to the proposed development as the site is not identified as being within a Flood Planning Area; and that the Council’s records do not indicate that the site is affected by flooding or flood planning controls for events up to and including 1% Annual Exceedance Probability storm event.

State Environmental Planning Policy (Housing) 2021

53. Schedule 7A, s 8(1) of the Housing SEPP current at 18 May 2022 (the date of the lodgement of the DA) states that an amendment made to the Housing SEPP by the State Environmental Planning Policy Amendment (Housing) 2023 does not apply to a development application made, but not determined, on or before 14 December 2023.

54. Section 17 of the Housing SEPP current at 18 May 2022 prescribes the maximum FSR for in-fill affordable housing development as the maximum permissible FSR of residential accommodation plus an additional FSR if the maximum permissible FSR is 2.5:1 or less. The additional FSR must be used for affordable housing. The parties advise that the further amended DA complies with the FSR provisions within the Housing SEPP current at 18 May 2022, achieving an FSR of 1.49:1 through the application of s 17(1)(a)(ii) of the Housing SEPP current at 18 May 2022.

53. Section 18 of the Housing SEPP current at 18 May 2022 prescribes non-discretionary development standards for particular matters relating to development for the purposes of in-fill affordable housing. The parties advise that in particular, the further amended DA now provides for at least 30% of the subject site to be dedicated to landscape area and a deep soil zone of at least 15% of the site area to comply with s 18(2)(c) and (d) of the Housing SEPP current at 18 May 2022.

54. Section 19 of the Housing SEPP current at 18 May 2022 relates to design requirements. The purpose of this non-discretionary development standard is that if it is complied with, the consent authority is prevented from requiring more onerous standards to be imposed for the same matters. The parties submit that:

1. The proposed development satisfies the direct solar access criteria, with all apartments receiving at least 1 hour of solar access; 73% of apartments achieving solar access for at least 3 hours in their living rooms and open spaces; and 47% of apartments achieving solar access for at least 6 hours to their living rooms and common open space;

2. The proposed development has deep soil zones located on the perimeter of the building to ensure that adequate solar access is received and to compliment the open spaces; and

3. The minimum internal area of the residential apartments of all apartment types in the proposed development satisfy the relevant planning controls and development standards prescribed in s 19(2) of the Housing SEPP.

57. Section 19(3)(b) of the Housing SEPP current at 18 May 2022 provides that development consent must not be granted to a development except where the consent authority has considered whether the design of the residential development is compatible with the desired future character of the precinct for precincts undergoing transition.

58. Section 20 of the Housing SEPP current at 18 May 2022 provides for the continued application of State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development (SEPP 65) (Refer to par [61] below).

59. Section 21 of the Housing SEPP current at 18 May 2022 requires that the affordable housing component of the residential development will be used for affordable housing for 15 years and managed by a registered community housing provider. The parties advise that the 8 affordable dwellings will be managed by a community housing for 15 years from issue of the occupation certificate.

60. The parties further advise that:

1. Condition 6.10 of the Conditions of Consent require the Applicant to execute an instrument pursuant to s 88E of the Conveyancing Act 1919, establishing a positive covenant in relation to the following units G02, 101, 102, 103, 201, 202, 301 and 302 in which their use is for the purposes of affordable housing and are to be maintained for a period of 15 years from the date of the issue of the Occupation Certificate; and

2. The Court can be satisfied that the Applicant will engage a registered community housing provider to manage the affordable housing component upon issuance of the Occupation Certificate and in accordance with the s 88E Instrument.

State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development (Apartment Design Guide)

61. The parties advise that they agree that the proposed development adequately has regard for the State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development and the Apartment Design Guide requirements and provides sufficient visual privacy, public open space and solar access to the living rooms and open spaces of the proposed residential apartments.

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

62. The parties advise that the proposed development is subject to State Environmental Planning Policy (Building Sustainability Index:BASIX) 2004 as it was when the DA was lodged on 18 May 2022.

63. The further amended DA is accompanied by a BASIX Certificate, number 1239614M_03 prepared by ECO Certificates Pty Ltd issued 25 February 2025. This BASIX Certificate has been updated to be consistent with the proposed development in the further amended DA.

State Environmental Planning Policy (Resilience and Hazards) 2021

64. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable after remediation) for the purpose for which the development is proposed to be carried out.

65. The parties advise that the site has been historically used for residential purposes. There is no known history of potentially contaminating uses and events. The parties advise that no further investigation is warranted and that they are satisfied that the site is suitable for the proposed development.

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

Gosford City Centre Development Control Plan 2018

67. The parties advise that they agree that any non-compliance with the provisions of the DCP is not a jurisdictional pre-requisite to the grant of development consent; and that notwithstanding, the further amended DA complies with section 8.6 of the DCP relating to Waste and Recycling as follows:

1. The proposed development will have onsite collection areas for a heavy rigid vehicle to service the proposed development; and

2. It is agreed between the experts that there is sufficient flat level surface for the truck to stand and function safely and not be parked on a gradient exceeding 3%.

Conclusion

68. The parties’ experts agree that all contentions raised in the amended SOFAC have been resolved by the preparation of:

1. Amended plans and documents referred to at item 2(a) of the s 34 agreement between the parties under s 34(3) of the LEC Act; and

2. Agreed conditions of consent.

69. Having considered the advice of the parties provided above at [27]-[67] I am satisfied that:

1. The Applicant’s further 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; and

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

70. 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.

71. 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.

72. The Court notes:

1. That Central Coast Council, as the 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/1062/2022 made on 27 February 2025 to rely on the documents specified below:

Plan No.	Revision No.	Plan Title	Drawn By	Dated
1902:DA101	C9	Site Analysis Plan	VOARC	12/02/2025
1902:DA102	C9	Site Plan	VOARC	12/02/2025
1902:DA103	C9	Demolition Plan	VOARC	12/02/2025
1902:DA104	C9	Cut & Fill Plan	VOARC	12/02/2025
1902:DA110	C9	Design Floor Plan Basement L2	VOARC	12/02/2025
1902:DA111	C9	Design Floor Plan Basement L1	VOARC	12/02/2025
1902:DA112	C9	Design Floor Plan: Ground Floor	VOARC	12/02/2025
1902:DA113	C9	Design Floor Plan: Level 01	VOARC	12/02/2025
1902:DA114	C9	Design Floor Plan: Level 02	VOARC	12/02/2025
1902:DA115	C9	Design Floor Plan: Level 03	VOARC	12/02/2025
1902:DA116	C9	Design Floor Plan: Level 04	VOARC	12/02/2025
1902:DA117	C9	Design Floor Level: Level 05	VOARC	12/02/2025
1902:DA118	C9	Design Floor Plan: Level 06	VOARC	12/02/2025
1902:DA119	C9	Design Floor Plan: Roof	VOARC	12/02/2025
1902:DA131	C9	GFA Calculation Plans: Basement Level 01 & 02	VOARC	12/02/2025
1902:DA132	C9	GFA Calculation Plans: Ground & Level 01	VOARC	12/02/2025
1902:DA133	C9	GFA Calculation Plans: Level 02 & Level 03	VOARC	12/02/2025
1902:DA134	C9	GFA Calculations Plans: Level 04	VOARC	24/02/2025
1902:DA135	C9	GFA Calculation Plans: Level 05 & 06	VOARC	12/02/2025
1902:DA140	C9	Landscape Calculation Sheet	VOARC	24/02/2025
1902:DA140a	C9	Site Coverage Plan	VOARC	12/02/2025
1902:DA140b	C9	Compliant Deep Soil Area Plan	VOARC	12/02/2025
1902:DA141a	C	Landscape Summary	Topio.graphica landscape architecture	5/02/2025
1902:DA141b	C	Ground Level-Landscape Plan Overall	Topio.graphica landscape architecture	5/02/2025
1902:DA141c	C	Landscape Area Depths & Levels Plan	Topio.graphica landscape architecture	5/02/2025
1902:DA141d	C	Open Space Plan Ground Level-Maintenance & Access Provisions Plan	Topio.graphica landscape architecture	5/02/2025
1902:DA141e	C	Maintenance & Access Provisions Plan	Topio.graphica landscape architecture	5/02/2025
1902:DA141f	C	Common Open Space - Maintenance Access Provision Sections	Topio.graphica landscape architecture	5/02/2025
1902:DA142	C	Landscape Plan Zone A Rear Private Courtyard	Topio.graphica landscape architecture	5/02/2025
1902:DA143	C	Landscape Plan Zone B Private Courtyard & front setback landscaping	Topio.graphica landscape architecture	5/02/2025
1902:DA144	C	Landscape Plan Zone C Communal Open Space	Topio.graphica landscape architecture	5/02/2025
1902:DA145	C	Landscape Plan Zone D South western setback landscaping.	Topio.graphica landscape architecture	5/02/2025
1902:DA146	C	Landscape Plan-Level 2-Rear terrace landscaping	Topio.graphica landscape architecture	5/02/2025
1902:DA147	C	Landscape Plan-Level 4-Common Open Space Terrace & Landscaping	Topio.graphica landscape architecture	5/02/2025
1902:DA148	C	Landscape Plan Level 5-Landscape Side Setbacks	Topio.graphica landscape architecture	5/02/2025
1902:DA149	C	Landscape- South Fence Elevation	Topio.graphica landscape architecture	5/02/2025
1902:DA149a	C	Landscape- Front Fence Elevation	Topio.graphica landscape architecture	5/02/2025
1902:DA149b	C	Landscape Planting Schedule & Details	Topio.graphica landscape architecture	5/02/2025
1902:DA149c	C	New Residential Flat Building with Affordable Housing.	Topio.graphica landscape architecture	5/02/2025
1902:DA151	C9	Shadow Plan-Winter Solstice 21 June-9AM	VOARC	12/02/2025
1902:DA152	C9	Shadow Plan-Winter Solstice 21 June-10AM	VOARC	12/02/2025
1902:DA153	C9	Shadow Plan-Winter Solstice 21 June-11AM	VOARC	12/02/2025
1902:DA154	C9	Shadow Plan-Winter Solstice 21 June-12PM	VOARC	12/02/2025
1902:DA155	C9	Shadow Plan-Winter Solstice 21 June-1PM	VOARC	12/02/2025
1902:DA156	C9	Shadow Plan-Winter Solstice 21 June-2PM	VOARC	12/02/2025
1902:DA157	C9	Shadow Plan-Winter Solstice 21 June-3PM	VOARC	12/02/2025
1902:DA161	C9	Shadow Plan-Equinoxes 21 March-23 Sept-9AM	VOARC	12/02/2025
1902:DA162	C9	Shadow Plan-Equinoxes 21 March-23 Sept-10AM	VOARC	12/02/2025
1902:DA163	C9	Shadow Plan-Equinoxes 21 March-23 Sept-11AM	VOARC	12/02/2025
1902:DA164	C9	Shadow Plan-Equinoxes 21 March-23 Sept-12PM	VOARC	12/02/2025
1902:DA165	C9	Shadow Plan-Equinoxes 21 March-23 Sept-1PM	VOARC	12/02/2025
1902:DA166	C9	Shadow Plan-Equinoxes 21 March-23 Sept-2PM	VOARC	12/02/2025
1902:DA167	C9	Shadow Plan-Equinoxes 21 March-23 Sept-3PM	VOARC	12/02/2025
1902:DA171	C9	Shadow Plan-Summer Solstice 22 Dec. 9AM	VOARC	12/02/2025
1902:DA172	C9	Shadow Plan-Summer Solstice 22 Dec. 12PM	VOARC	12/02/2025
1902:DA173	C9	Shadow Plan-Summer Solstice 22 Dec. 3PM	VOARC	12/02/2025
1902:DA181	C9	3D Solar Access Views-Winter Solstice 21 June-9AM-11AM	VOARC	12/02/2025
1902:DA182	C9	3D Solar Access Views-Winter Solstice 21 June-12PM-1PM	VOARC	12/02/2025
1902:DA183	C9	3D Solar Access Views-Winter Solstice 21 June-2PM-3PM	VOARC	12/02/2025
1902:DA191	C9	Elevational Shadows-174 Gertrude St-View 1 Winter 21 June 9AM-12PM	VOARC	12/02/2025
1902:DA192	C9	Elevational Shadows-174 Gertrude St-View 1 Winter 21 June 1PM-3PM	VOARC	12/02/2025
1902:DA193	C9	Elevational Shadows-174 Gertrude St-View 2 Winter 21 June 9AM-12PM	VOARC	12/02/2025
1902:DA194	C9	Elevational Shadows-174 Gertrude St-View 2 Winter 21 June 1PM-3PM	VOARC	12/02/2025
1902:DA195	C9	Elevational Shadows-174 Gertrude St-View 1 Equinox 9AM-12PM	VOARC	12/02/2025
1902:DA196	C9	Elevational Shadows-174 Gertrude St-View 1 Equinox 1PM-3PM	VOARC	12/02/2025
1902:DA197	C9	Elevational Shadows-174 Gertrude St-View 2 Equinox 9AM-12PM	VOARC	12/02/2025
1902:DA198	C9	Elevational Shadows-174 Gertrude St-View 2 Equinox 1PM-3PM	VOARC	12/02/2025
1902:DA200	C9	Basement Floor Plan Level 02	VOARC	12/02/2025
1902:DA201	C9	Basement Floor Plan Level 01 Eastern Part	VOARC	12/02/2025
1902:DA202	C9	Basement Floor Plan:Level 01 Western Part	VOARC	12/02/2025
1902:DA203	C9	Ground Floor Plan	VOARC	12/02/2025
1902:DA204	C9	Floor Plan Level 01	VOARC	12/02/2025
1902:DA205	C9	Floor Plan Level 02	VOARC	12/02/2025
1902:DA206	C9	Floor Plan Level 03	VOARC	12/02/2025
1902:DA207	C9	Floor Plan Level 04	VOARC	12/02/2025
1902:DA208	C9	Floor Plan Level 05	VOARC	12/02/2025
1902:DA209	C9	Floor Plan: Level 06	VOARC	12/02/2025
1902:DA210	C9	Roof Plan	VOARC	12/02/2025
1902:DA301	C9	Gertrude St Elevation	VOARC	12/02/2025
1902:DA302	C9	North & South Elevations- Site	VOARC	12/02/2025
1902:DA303	C9	West Elevation-Site	VOARC	12/02/2025
1902:DA311	C9	East & West Elevation	VOARC	12/02/2025
1902:DA312	C9	North Elevation	VOARC	12/02/2025
1902:DA313	C9	South Elevation	VOARC	12/02/2025
1902:DA411	C9	Cross Sections	VOARC	12/02/2025
1902:DA412	C9	Cross Sections	VOARC	12/02/2025
1902:DA413	C9	Long Section	VOARC	12/02/2025
1902:DA414	C9	Long Sections	VOARC	12/02/2025
1902:DA501	C9	Photomontage: Gertrude St View from SE	VOARC	12/02/2025
1902:DA502	C9	Photomontage: Gertrude St View from East	VOARC	12/02/2025
1902:DA503	C9	Perspective View: Rear	VOARC	12/02/2025

2. The Court ordered on 14 October 2024 that the Applicant pay the Respondent’s costs thrown away in the amount of $5,500.00 pursuant to s 8.15(3) of the EPA Act. This amount is in addition to that contained in Order 1 of this judgment.

73. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of the amendments to the development application in the agreed amount of $6,500.00 within 28 days of these orders.

2. The appeal is upheld.

3. Development Application No. 1062/2022 as amended for the demolition of the existing building and the construction of a residential flat building comprising 2 basement levels, ground floor and Levels 1 to 6, containing 15 units, including 8 affordable housing units at 176 Gertrude Street, Gosford, NSW, 2250, legally known as Lot 4 DP 12148, is determined by the grant of development consent subject to the conditions at Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A (376 KB, pdf)

**********

Decision last updated: 19 June 2025