Elk Designs Newcastle Pty Ltd v Central Coast Council

[2025] NSWLEC 1090

Land and Environment Court

New South Wales

Medium Neutral Citation:

Elk Designs Newcastle Pty Ltd v Central Coast Council [2025] NSWLEC 1090

Hearing dates:

Conciliation conference on 14 February 2025

Date of orders:

20 February 2025

Decision date:

20 February 2025

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979, the applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application in the amount of $1,500 within 28 days of these orders.

(3) Development Application No. 239/2024 for the construction of a five-unit multi-dwelling housing with strata subdivision, on Lot 20 in DP 1297386 known as 44 Althorp Street, East Gosford NSW 2250, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.15, 8.7

Land and Environment Court Act 1979, s 34

Central Coast Local Environmental Plan 2022, cll 4.3, 4.4, 5.21

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.10, 2.11, 4.6

Category:

Principal judgment

Parties:

Elk Designs Newcastle Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
D Tyrrell (Solicitor) (Applicant)
M Ball (Solicitor) (Respondent)

Solicitors:
Tyrells Planning Law (Applicant)
MBM Legal and Conveyancing (Respondent)

File Number(s):

2024/209811

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 239/2024 for the demolition of existing structures and the construction of a multi-dwelling housing development (the proposal), at 44 Althorp Street, East Gosford (the site), by Central Coast Council (the Council).

2. This matter was conciliated with Elk Designs Newcastle Pty Ltd v Central Coast Council [2025] NSWLEC 1089 (Development Application No. 98/2024 for multi-dwelling housing development at 25 Webb Street, East Gosford).

3. 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 14 February 2025. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

5. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended application

6. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The plans and documents comprising the amended application are listed below:

Architectural Plans issue B prepared by ELK Designs dated 17 December 2024
Plan No.	Plan Title
DA000	Cover Page
DA010	Site Analysis Plan
DA020	Demolition Plan
DA030	Site Plan
DA035	Site Coverage Plan
DA040	Perspectives
DA100	Ground Floor
DA110	First Floor
DA150	Roof Plan
DA300	Elevations
DA301	Elevations
DA350	External Finishes
DA400	Section
DA800	3D Building Envelope
DA900	External Shadow Diagrams
DA901	External Shadow Diagrams
DA902	3D Solar Access Diagrams
DA903	Views from the Sun
DA904	Views from the Sun
DA905	Views from the Sun
DA906	Views from the Sun
DA950	Sediment Control
Civil Engineering Stormwater Plans prepared by MPC Consulting Engineers dated 27 November 2024
Plan No.	Issue No.	Plan Title
C01	6	Sedimentation and Erosion Control Plan
C02	2	Sedimentation and Erosion Control Details
C03	6	Stormwater Plan
C04	5	Stormwater Sections and Details
C05	6	Stormwater Calculation Summary Report
Civil Engineering Turning Path Plans prepared by MPC Consulting dated 21 November 2024
Plan No.	Issue No.	Plan Title
T01	4	Turning Path Entry Plan Sheet 1
T02	4	Turning Path Entry Plan Sheet 2
T03	4	Turning Path Exit Plan Sheet 1
T04	4	Turning Path Exit Plan Sheet 2
Landscape Plan issue 3 prepared by Tolero Landscape Design dated 1 December 2024
Plan No.	Plan Title
Sheet 1	Site Analysis Plan
Sheet 2	Landscape Plan
Sheet 3	Specification Plan
Draft Strata Plan prepared by Delfs Lascelles Consulting Surveyors dated
BASIX Certificate No. 1734536M_02 prepared by Evergreen Energy Consultants Pty Ltd dated 17 December 2024
NatHERS Certificate No. 0009217290 prepared by Evergreen Energy Consultants Pty Ltd dated 17 December 2024
Waste Management Plan issue B prepared by ELK Designs

Pre-conditions to the grant of consent

7. The site is zoned R1 General Residential pursuant to Central Coast Local Environmental Plan 2022 (LEP 2022) and the proposal is permissible with consent. The objectives of the zone, to which regard must be had, 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 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 unreasonable demands on services.

8. The proposal complies with the height of buildings development standard of 8.5m, pursuant to cl 4.3 of LEP 2022.

9. The proposal complies with the floor space ratio development standard of 0.5:1, pursuant to cl 4.4 of LEP 2022.

10. Clause 5.21 of LEP 2022 requires the consent authority to consider any potential flood impacts and to allow development on land that is compatible with the flood function and behaviour on the land. The site is affected by flood with overland flow affecting the Site in both the 1% Annual Exceedance Probability (AEP) and Probable Maximum Flood events. All habitable floors are above the 1% AEP level and 0.5m freeboard.

11. Sections 2.10 and 2.11 of State Environmental Planning Policy (Resilience and Hazards) 2021 states that development consent must not be granted unless the consent authority has relevantly considered the adverse impact on the coastal environment area and the coastal use area. Additionally, s 2.12 states that development consent must not be granted if there is an increase risk of coastal hazards. The site is identified as being located within a Coastal Environment Area which therefore means it is required to be in accordance with s 2.11. I accept the Council’s submission, following assessment, that the stormwater design satisfies the requirements of Ch 2.

12. I accept the Council’s submission that the site has historically been used for residential purposes and the site is suitable for development, pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

Conclusion

13. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 7 February 2025 and I am satisfied, on the basis of the evidence before me, that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

14. The orders of the Court are:

1. The appeals are upheld.

2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979, the applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application in the amount of $1,500 within 28 days of these orders.

3. Development Application No. 98/2024 for the construction of a five-unit multi-dwelling housing with strata subdivision, at Lot 20 in DP 1297386 known as 44 Althorp Street, East Gosford NSW 2250, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

S O’Neill

Commissioner of the Court

Annexure A

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Decision last updated: 20 February 2025