Furfaro v Central Coast Council

[2019] NSWLEC 1335

Land and Environment Court

New South Wales

Medium Neutral Citation:	Furfaro v Central Coast Council [2019] NSWLEC 1335
Hearing dates:	Conciliation conference on 2 July 2019
Date of orders:	19 July 2019
Decision date:	19 July 2019
Jurisdiction:	Class 1
Before:	Bindon AC
Decision:	The Court orders that: (1)   The Applicant is granted leave to rely on the amended plans and documentation referred to in Condition 1.1 of the Conditions at Annexure A to these orders. (2) No costs are payable under s 8.15(3) of the Environmental Planning and Assessment Act 1979 as the amendments are minor. (3)   The Appeal is upheld. (4)   Modification Application 40057/2011/4 is approved subject to the consolidated set of conditions at Annexure A.
Catchwords:	MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Rocco Furfaro (Applicant) Central Coast Council (Respondent)
Representation:	Counsel: L Nurpuri (Respondent)   Solicitors: J Palmer, Pikes and Verekers (Applicant) Central Coast Council (Respondent)
File Number(s):	2018/352943
Publication restriction:	No

Judgment

1. COMMISSIONER: This is a Class 1 appeal brought to the Court under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Central Coast Council (Council) to modify development consent No 40057/2011. In exercising the functions of consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act.

2. The modification application relates to land comprising 5 lots identified as Lots A, B and C in DP 317721, each with Terrigal Esplanade addresses, and Lot 1 in DP664017 and Lot C in DP 356025 together referred to as 15 Church Street Terrigal (the site). The proposed modification works relate to that part of the site described as 15 Church Street. As originally lodged, the application seeks consent to:

1. relocate the vehicle ramp to the basement from Hudson Lane to the rear of the building (north east façade) via an external ground level driveway and parking area off Hudson Lane;

2. reconfigure the basement vehicle ramp from a curved to a straight ramp;

3. reconfigure the basement car park and increase the number of cars located there from 13 to 18 spaces;

4. reconfigure and extend the ground floor retail area accessed off Hudson Lane, and add another retail unit, bringing the total number of units to 6. This increases the ground level GFA from 446m2 to 516.5m2, and the FSR from 1.43:1 to 1.46:1 over the site;

5. lower the finished floor level (FFL) of the ground level retail units numbered units 1 to 4, from the approved RL 3.8 to RL 3.24, but retain a FFL of RL 3.8 for proposed units 5 and 6 (including the new additional unit) accessed off Hudson Lane and the toilets associated with units 1 to 4;

6. introduce flood mitigation measures, most notably mechanical flood gates installed adjacent to the doorways to units 1 to 4, to prevent flood waters from entering the units with the lowered FFL’s;

7. reconfigure the external ground level parking area at the rear of the new building to provide 4 car spaces, 1 accessible car space, waste storage area and small truck loading bay, and reconfigure the subdivision plan to include this parking area on Proposed Lot 1; and

8. relocate the accessible pedestrian ramp providing access to the retail units.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held in Sydney on 2 July 2019. I presided over the conciliation conference. At the request of the parties, no site inspection involving me was held.

4. The modification application is associated with another application brought to the Court under s 8.25 of the EPA Act against the deemed refusal by Council of a Building Information Certificate (BIC) Application (reference 11447 of 2018) for the same property, and relating to the same development consent DA40057/2011. By agreement, both the s 4.55 modification application and the BIC application (LEC case number 51402) were considered at the same conciliation conference.

5. Prior to the Court’s conciliation conference the parties had conferred, the plans were amended slightly and the parties reached an in-principle agreement based on those amended plans. Leave was sought to rely on the agreed amended plans. The main changes between the plans as originally submitted and the amended plans are:

1. raising the FFL of retail units 1 to 4 slightly from RL3.24 to RL 3.30 being the 1% AEP flood level; and

2. widening the car park ramp to 3.6m where possible between the structural columns, including by shifting the stairs adjacent to the ramp.

6. The agreement reached between the parties involves the Court upholding the appeal and modifying the consent, subject to conditions, pursuant to s 4.55(2) of the EPA Act. 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. There is a jurisdictional prerequisite that must be satisfied before this function can be exercised. I have formed the opinion that the relevant jurisdictional matter has been satisfied for the reasons set out in [6] and [7] below.

7. The relevant jurisdictional matter relates to the terms of s 4.55(2)(a) of the EPA Act to modify a consent. This provision of the EPA Act requires the Court, as the consent authority, to be satisfied that the development as modified would be substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all). I have considered this and am duly satisfied that it is substantially the same development because the changes are not substantive in a quantitative or a qualitative sense, and the potential changes to the impacts of the development have been suitably mitigated.

8. In reaching the decision about the acceptability of the flood and car park design mitigation measures, I refer in particular to the “Flood Impact Report” dated 5 March 2019 and the “Flood Gate Operation Plan” dated 1 April 2019, both by Demlakian Engineering, and the “Internal Ramp and Headroom Clearance Assessment” dated 17 June 2019 and the “Internal Ramp Assessment” dated 25 June 2019, both by TSA Traffic & Transport engineers. I also note the agreed consolidated conditions at Annexure A cover these issues adequately.

9. The Court orders:

1. The Applicant is granted leave to rely on the amended plans and documentation referred to in Condition 1.1 of the Conditions at Annexure A to these orders.

2. No costs are payable under s 8.15(3) of the Environmental Planning and Assessment Act 1979 as the amendments are minor.

3. The Appeal is upheld.

4. Modification Application 40057/2011/4 is approved subject to the consolidated set of conditions at Annexure A.

……………………….

J Bindon

Acting Commissioner of the Court

Annexure A (266 KB, pdf)

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Decision last updated: 19 July 2019