Duratyne Pty Ltd v Central Coast Council

[2020] NSWLEC 1252

Land and Environment Court

New South Wales

Medium Neutral Citation:	Duratyne Pty Ltd v Central Coast Council [2020] NSWLEC 1252
Hearing dates:	Conciliation conference on 9 June 2020
Date of orders:	16 June 2020
Decision date:	16 June 2020
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1) Leave is granted to the Applicant to rely upon the amended plans and documents listed in Condition 1.1 of Annexure “A” hereto and to delete the conditions of the consent relating to BASIX. (2) The appeal is upheld. (3) The modification application as amended to amend Development Consent DA53996/2018, which applies to the land at 78 Glenworth Valley Road, Wendoree Park, is conditionally approved such that the consent is modified as indicated in Annexure “A”.
Catchwords:	MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Fisheries Management Act 1994 Gosford Local Environmental Plan 2014 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018
Texts Cited:	Gosford Development Control Plan 2013
Category:	Principal judgment
Parties:	Duratyne Pty Ltd (Applicant) Central Coast Council (Respondent)
Representation:	Counsel: J Reid (Applicant) S Simington (Solicitor) (Respondent)   Solicitors: Lindsay Taylor Lawyers (Respondent)
File Number(s):	2019/337669
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against refusal of the modification application of an existing development consent, DA53996/2018 by Central Coast Council (hereafter the Council), which as amended, seeks removal of unapproved hardstand areas, construction of new landscaping, windows to studio and stormwater works, and to regularise height of existing studio and existing, unapproved hardstand areas on Lot 16 DP 25510, also known as 78 Glenworth Valley Road, Wendoree Park (hereafter the site).

2. The site is currently occupied with a residential dwelling and studio. The studio was previously approved under DA (53996/2018), with a subsequent modification of the DA (approved as Part 2 of this consent).

3. This Class 1 appeal is made under s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (EPA Act 1979).

4. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 9 June 2020. I presided over the conciliation conference. There were no objectors heard at the conciliation.

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Court and to the parties. This decision is to uphold the appeal and grant consent to modify DA53996/2018, based on conditions and amended plans that the DA relies upon.

6. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.55(1A) of the EPA Act 1979 to grant consent to modify DA53996/2018, with conditions. The proposed works were described to the Court, as shown in the amended plans attached to the s34 agreement, and upon which the Court relies to consent to this agreement.

7. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to consideration under s 4.55(1A) of the EPA Act 1979, as: Fisheries Management Act 1994 (FM Act); State Environmental Planning Policy (Coastal Management) 2018 (SEPP Coastal); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); Gosford Local Environmental Plan 2014 (GLEP); and Gosford Development Control Plan 2013 (GDCP). The parties agree that the amended plans and conditions of consent relate to the merits of the proposal.

8. The parties agree that the relevant provisions of the SEPP BASIX have been satisfied, as the studio does not require a BASIX certificate.

9. The parties also agree that the requirements of the SEPP Coastal have been satisfied, specifically cl 10(4), by the proposed works that prevent runoff from the site, protect water quality and prevent any adverse impact on protected mangrove species, pursuant to the FM Act. The parties agree that the amended plans relied upon and the conditions of consent are based on modelling, and therefore result in minimal environmental impact.

10. The site is zoned E2 Environmental Conservation, pursuant to the GLEP. The proposed development is permissible and consistent with the objectives of the zone. The parties agree that the relevant requirements of the GLEP are satisfied, by the supporting documents and amended plans, to modify the approved consent, as sought under this appeal.

11. Based on the amended plans and supporting documents assessed under this appeal, the contentions that relate to the controls of the GDCP are resolved to the satisfaction of the parties. The respondent confirms that notification of the application under appeal was not required, pursuant to the GDCP, as the proposed works were deemed of minimal environmental impact and minor in nature.

12. The parties agree that the proposed modification is, of minimal environmental impact, substantially the same as previously approved and is not required to be notified. The parties confirm that no works that are the subject of the agreement and that form part of the modified consent granted are to be undertaken on Crown lands (specifically adjacent to the site, between Mangrove Creek). By consent of the Council, the agreed landscaping work on Council owned land adjacent to Glenworth Valley Road is approved.

13. I am therefore satisfied that there are no jurisdictional impediments to this agreement and that the modification sought under this appeal to DA53996/2018, based on the amended plans and conditions of consent, satisfies the requirements of s 4.55(1A) of the EPA Act 1979.

14. 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 1979 to dispose of the proceedings in accordance with the parties' decision.

15. The Court orders:

1. Leave is granted to the Applicant to rely upon the amended plans and documents listed in Condition 1.1 of Annexure “A” hereto and to delete the conditions of the consent relating to BASIX.

2. The appeal is upheld.

3. The modification application as amended to amend Development Consent DA53996/2018, which applies to the land at 78 Glenworth Valley Road, Wendoree Park, is conditionally approved such that the consent is modified as indicated in Annexure “A”.

…………………………

S Bish

Commissioner of the Court

Annexure A (213470, pdf)

Plans (5243967, pdf)

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