Jedaclew Pty Ltd v Central Coast Council

[2022] NSWLEC 1470

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jedaclew Pty Ltd v Central Coast Council [2022] NSWLEC 1470

Hearing dates:

Conciliation conference on 18 August 2022

Date of orders:

08 September 2022

Decision date:

08 September 2022

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application no. 57779/2019 for the demolition of existing structures and the construction of a commercial and shop top housing development and associated landscaping on land legally comprising of the allotments described as Lots 1-4 in DP 24978 and known as nos. 227-233 Ocean View Road, Ettalong Beach, subject to the conditions set out in Annexure A.

Catchwords:

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

Legislation Cited:

Central Coast Local Environmental Plan 2022, cl 1.8A

Environmental Planning and Assessment Act 1979, ss 1.3, 4.16

Environmental Planning and Assessment Regulation 2000, cll 55, 64; Sch 1, Pt 1, cl 2A

Gosford Local Environmental Plan 2014, cll 2.3, 4.3, 4.6, 5.3, 7.1, 7.2

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Coastal Management) 2018 (repealed)

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.10, 2.12, 2.13, 2.15; Ch 4, s 4.6

State Environmental Planning Policy No 55 – Remediation of Land (repealed)

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cll 3, 28

Cases Cited:

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Texts Cited:

Apartment Design Guide

National Acid Sulfate Soils Guidance

Category:

Principal judgment

Parties:

Jedaclew Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2021/352993

Judgment

1. These proceedings arise following the Central Coast Council’s determination to refuse consent to a development application for the construction of a commercial and shop top housing development at 277-233 Ocean View Road, Ettalong Beach (DA).

2. The hearing commenced on Microsoft Teams with the oral evidence of four objectors. Collectively, they described the proposal as an overdevelopment of the site and as being “… out of character with the seaside village of Ettalong”. While some conceded an improvement in the design by the removal of the originally proposed apartments on the sixth level, they remained resolute in their view that the design changes had not gone far enough. They believe that the amended design does not transition sympathetically with the adjoining R2 low density residential zoned neighbouring sites and its non-compliant setbacks and height generate overshadowing on adjoining blocks, the public footpath and the roadway. One of the submitters also raised concern about the demolition of the historic shops and the removal of healthy vegetation to make way for this oversized development. These concerns were also repeated in the written submissions lodged with the Council in response to the notifications of the DA.

3. After hearing from the objectors the parties sought an adjournment of the hearing to allow the matter to be allocated to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The Court accommodated the parties’ request, and the conciliation took place forthwith before me.

4. During the conference a further set of amended plans was produced which the Council’s experts agreed resolved the issues between the parties and reduced the impacts on the adjoining sites. Subject to the application being amended to reflect the new plans the parties informed me that they had reached agreement, as to the terms of a decision in the proceedings that would be acceptable to them.

5. The evolution of the amended application is explained in the comparative table below.

Application as originally filed Rev D	Notice of Motion Plans Rev E	S34 plans Rev F
6 storeys Mezzanine apartments Ceiling heights not compliant	5 storeys Mezzanine apartments deleted Ceiling heights compliant No penthouse or habitable space above height control	5 storeys Mezzanine apartments deleted Ceiling heights compliant No penthouse or habitable space above height control
Setbacks Rear: varied from 7.8m for all 5 storeys. 6th storey setback further	Rear: varies from 8.24 to some balconies and 9m to living areas for floors 1-3. 9m to balcony L5.	Rear: varies from 8.24 to some balconies and 9m to living areas for floors 1-3. F5: 10.5 to edge of balcony + eve of level below extended to prevent angled view to rear of residential properties. 12m to glass line.
Eastern side: Floor 1-floor 5: all balconies 6m. Setback to building varies from min 6m	Eastern side: Floor 1-floor 5: 1 small side balconies 6m; rear facing balcony 7.8m from side + planter. Front facing balcony 7.2m. Side facing balcony on floor 5: 7.625m. Majority of wall 9m.	Eastern side: F5: single side facing balcony reduced in size to 10.5sqm; setback 8.145m; planter along edge introduced.
Front: F5 Setback to 2 balconies 0 Setback to glass line 3.84m Setback to eastern side of balcony 6m Setback to eastern side of balcony 3m	Front F5 Setback to only balcony 0.8m Setback to glass line 4m Setback to eastern side of balcony 10.3m Setback to western side of balcony 7.3.	Front F5 Setback to only balcony 1.6m Setback to glass line 4.5m Setback to eastern side of balcony 10.3m Setback to western side of balcony 7.3.
Driveway Eastern side	Driveway Western side	Driveway Western side

6. 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.

7. In this instance, the parties’ decision involves the Court exercising the function under s 4.16 of the Environmental Planning and Assessment Act 1979 (EPA Act) to grant consent to the amended DA subject to the agreed conditions. Before I can exercise the power to approve the DA there are jurisdictional prerequisites that must be satisfied, and the parties identified these in a joint jurisdictional submission which accompanied the s34 agreement.

Jurisdictional considerations

Clause 4.6 written request – Exceedance of the height control

8. Under cl 4.3 of the Gosford Local Environmental Plan 2014 (GLEP 2014) the maximum height of a building for this site is 17m.

9. The DA, as amended has a range of maximum building heights: -

Maximum Height   Departure

Ridge    17.31m   0.31m – 1.8%

Balustrade 18.41m   1.41m – 8.3%

Stair cover 19.28m   2.28m – 13.4%

10. The applicant has applied for a variation of the height standard in cl 4.3 under cl 4.6 and filed with the s34 agreement a written request prepared by Clarke Dowdle and Associates, dated August 2022.

11. Clause 4.6 of the GLEP 2014 relevantly provides:

4.6 Exceptions to development standards

(1) The objectives of this clause are as follows—

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless—

(a) the consent authority is satisfied that—

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Planning Secretary has been obtained.

12. Clause 4.6(4) establishes preconditions that must be satisfied before the Court on appeal can exercise the power to grant development consent for development that contravenes a development standard: Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) at [13].

13. Pursuant to cl 4.6(4)(a), the Court, in exercising the functions of the consent authority, must be satisfied of both of the matters in cl 4.6(4)(a)(i) and (ii), being:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out…

14. Only if the requirements in cl 4.6(3) and (4) are met will the power in cl 4.6(2) to grant consent to development that contravenes the development standard be enlivened: RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 per Preston CJ at [24].

15. In this case I am satisfied that the written request does adequately address the matters that are required to be demonstrated under cl 4.6(3). In that regard, I accept that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case because the development nonetheless achieves the objectives of the standard for the reasons set out at pp 8-12. In that regard I accept that the nominated height is commensurate with the height of recently approved mixed use buildings in the Ettalong Beach B2 Local Centre zone including a 5-storey mixed use at 237-245 Ocean View Road which is located 15m from the site. This development has a ridge height of 18.20m so the requested 17.31m ridge height is comparable with the height limit in the Ettalong Town Centre. I accept that the amended plans meet the Apartment Design Guide (ADG) guidelines, and the urban form is of high quality having been prepared by an urban design team and architectural firm (objective (b)).

16. As the plans demonstrate and the written request identifies, the breaches are located at the stair cover and roof terrace balustrade on the roof. Importantly, the variations are negligible in context, and as the applicant submits (and the Council agrees) the breaches do not result in unacceptable adverse amenity impacts to neighbouring sites - beyond that of a compliant height of building footprint/building envelope. In that regard I accept that no part of the gross floor area of Level 5 exceeds the height development standard, and the upper floor is recessed inward of the lower plates (L1-l3) component. From an elevation massing perspective, the site cover and balustrade represent 3.9% of the overall massing for the roof line above the 17m limit which is very minor, and I accept would not be discernible from the neighbouring sites and the public domain. While I accept that the variation entails a marginal increase in shadowing toward the street and neighbouring sites due to the north-south lot orientation, I accept the submission that the adjourning lots have lower building height limits 11.5m to the west and 8.5m to the east; this will ensure that neighbouring sites/buildings and public areas will continue to receive sunlight and lead to receptive exposure to sky and sunlight (objective (c)).

17. I also accept that the increased setback, with the amended design variation for minor elements, will ensure that proposed built form will be an appropriate transition from the B2/R1 zone boundary. The height variations are consistent with the land use intensity envisaged in cl 4.3 of GLEP 2014. The proposed development by settling back 6m -9m from the east and 9m from the northern boundary allows the provision of a deep soil zone for landscaping that will contribute positively to the skyline with a stepped building form that reduces the scale of the development as viewed from east, west and north of the site from Ocean View Drive (in contrast with the zoning interface at the eastern end of the R1/B2 boundary – 211 Ocean View Road (objective (d)).

18. The written request records that the amended mixed-use building has been designed to ensure that the overshadowing impacts of the development area are acceptable in nature, in particular maximise solar access to surrounding public open spaces. The Council’s consultant planner is of the expert opinion that this has been achieved in the amended design and I accept his expert assessment.

19. The applicant acknowledges in the written request that cl 4.6(3)(b) of GLEP 2014 requires demonstration that there are sufficient environmental planning grounds to justify contravening the development standard. The Council submits that the written request has satisfied this provision of cl 4.6. The reasoning of the Court in Initial Action provides assistance in relation to the consideration of sufficient environmental planning grounds. In that decision, the Court observed that in order for there to be 'sufficient' environmental planning grounds to justify a written request under cl 4.6, the focus must be “on the aspect or element of the development that contravenes the development standard” and the “environmental planning grounds advanced in the written request must justify contravening the development standard, not simply promote the benefits of carrying out the development as a whole” (at [24]); and there is “no basis in cl 4.6 … [to] establish a test that the non-compliant development should have a neutral or beneficial effect relative to a compliant development” (at [87]).

20. The written request acknowledges that the environmental planning grounds must be environmental planning grounds by their nature and while not defined refer to grounds that relate to the subject matter, scope and purpose of the EPA Act including its objects in s 1.3: Initial Action at [23]-[24]. Additionally, they must reference the aspect of the proposed development that contravenes the standard and why that contravention is justified on environmental planning grounds. They must also be adequately addressed in the written request: Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31].

21. The applicant submits that the fact the proposed development achieves the objectives of the standard evidences orderly and economic use of the land in accordance with s 1.3(c) of the EPA Act. The proposed development achieves the objectives of the development standard prescribed in cl 4.3 of the GLEP 2014 and achieves the objectives of the B2 Local Centre zone. And, as this environmental planning ground is addressed comprehensively when detailing compliance with cl 4.6(3)(a), those submissions are relied upon for the purposes of cl 4.6(3)(b). That said, I also accept that the variation is supported on the following environmental grounds:

“The development is consistent with the objects of the Environmental Planning and Assessment Act 1979 by promoting the orderly and economic use and development of the land and promoting and delivering good design and amenity. This is achieved by a development which is a high-quality urban form with design and architectural merit.

The variation facilitates access to the roof terrace, which has panoramic views over rooftops to Broken Head, and is a preferred outcome to providing an external staircase to the topmost floor. The minor elements that cause the breach are reasonable to take advantage of the outstanding amenity of the proposed terrace.

The proposed minor variations to the height of building development standard in the circumstances produces a building that achieves design excellence as sought under the SEPP 65 provisions and the ADG requirements.

The amended proposal is consistent with the Central Coast Affordable and Alternative Housing Strategy as this development provides smaller (affordable) residential housing located around a town centre which is also consistent with other relevant strategic policies for the smaller town Centres on The Central Coast, including the Central Coast Regional Plan 2036 and draft Central Coast Urban Spatial Plan.

The proposed variation to the building height standard will have negligible material environmental impacts compared to a compliant scheme, in terms of built form, overshadowing, view or heritage impacts.”

22. Pursuant to cl 4.6(b) I am also satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the development standard and the objects of the zone for the reasons outlined in the written request at pp 14 -16. In short, it will provide for the housing needs of the community within a high-density environment and provide a sufficient building separation to the lower density zone as illustrated on the site plan and elevation plans and landscape plans. The proposed development contributes to a variety of bouquet commercial and housing types including in a high-density environment. The proposed development also maximises public transport patronage by providing residential accommodation in an accessible location lose proximity to bus and cycling routes.

23. For the purposes of cl 4.6(5), the Secretary of the Department’s concurrence to the variation is assumed (Planning Circular PS 18-003 dated 21 February 2018) and cl 64(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) and I have considered the matters raised in subcl 4.6(5) and am satisfied. For all those reasons, the applicant’s cl 4.6 variation written request is approved.

24. Now turning to the other jurisdictional matters about which I am satisfied.

Chapters 2 and 4 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

25. Resilience and Hazards SEPP applies to the land the subject of the proposed development.

26. Resilience and Hazards SEPP came into force on 1 March 2022 and transfers the provisions of State Environmental Planning Policy No 55 – Remediation of Land and State Environmental Planning Policy (Coastal Management) 2018 to the new instrument.

27. Section 4.6 of the Resilience and Hazards SEPP nominates matters in relation to remediation of land that must be considered before the development application is determined.

28. The Statement of Environmental Effects, at page 18, confirms that:

“The current use of the site is low scale retail and partial residential and there is no historical information that suggests that the site has the potential to be contaminated or would restrict the continuation of such uses on the site.”

29. Section 2.15 of the Resilience and Hazards SEPP provides that where a parcel of land is identified as being within more than one coastal management area, the development controls of the highest management area prevail.

30. Consideration must be given to s 2.10, which relates specifically to development within the coastal environment area, as well as those additional matters identified under ss 2.12 and 2.13. The development has been assessed against each of these matters in the tables on pages 22-24 of the Statement of Environmental Effects prepared by Clarke Dowdle and Associates, dated June 2021.

29. Having considered the relevant requirements I am satisfied that the DA meets the objectives of the Resilience and Hazards SEPP.

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

32. The DA, as amended, is supported by BASIX Certificate No. 1054531M_02 and dated 12 August 2022. This certificate confirms that the project passes the BASIX requirements.

33. The provided BASIX Certificate satisfies the requirement in cl 2A in Pt 1 of Sch 1 to the EPA Regulation and I accept that to be the fact.

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65)

34. The proposed development is defined as a residential apartment development in accordance with cl 3 of SEPP 65 and the provisions of SEPP 65 are applicable to the DA.

35. Clause 28 of SEPP 65 requires the following matters to be taken into consideration in determining a development application:

• advice from the design review panel.

• the design quality of the development when evaluated in accordance with the design quality principles; and

• the Apartment Design Guide.

36. The DA, as amended, is supported by a Design Verification Statement prepared by Simon Rosewell of Atlas Urban, dated 17 August 2022 which confirms that the proposed development satisfies the design quality principles of SEPP 65 and is of a high-quality design.

37. The DA, as amended, has been assessed as being consistent with the Apartment Design Guide and I satisfied that consent can be granted.

GLEP 2014

38. According to the Land Use Table, the land is zoned B2 Local Centre. The proposed development is permissible in the zone with consent.

39. Clause 2.3(2) of GLEP 2014 indicates that regard must be had to the zone objectives. The relevant zone objectives in the B2 zone are:

• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To provide for residential uses, but only as part of a mixed-use development.

• To ensure that development is compatible with the desired future character of the zone.

• To promote ecologically, socially and economically sustainable development.

• To ensure that the town centres of Erina and Woy Woy are recognised as providing a higher level, and greater diversity, of services and facilities to serve a wide population catchment from numerous localities and as key public transport nodes, secondary to Gosford City Centre.

• To ensure that village centres such as Avoca, East Gosford, Ettalong Beach, Kincumber, Lisarow, Niagara Park, Terrigal, Umina Beach, West Gosford and Wyoming are recognised as providing a broad range of services and facilities to serve the population of the locality.

• To ensure that villages are recognised as providing local level services and facilities and are developed at a scale that reflects their population catchment and as a focus for public transport routes.

• To ensure that the different roles of villages are recognised with some villages being key tourist destinations with boutique activities in addition to serving the needs of local residents, while other villages are purpose-built centres to serve the needs of the local population.

• To encourage the residential population of villages and town centres to contribute to the vitality of those locations.

40. For the reasons earlier identified, I am satisfied that the amended proposed development is consistent with the relevant objectives of the zone in that it:

• increases the provision of commercial opportunities and housing accommodation within a higher density residential zone that is well serviced by public transport;

• is compatible with the surrounding land uses and allows the construction of additional commercial development and dwellings in line with the needs of the community;

• allows a mixed used development aesthetic architectural design and the incorporation of landscaping that is compatible with the locality; and

• shows high internal performance of the units, lack of external impacts to the surrounding properties as well as the improved environmental and social outcomes. The scale of the proposal satisfies the zone objectives and the desired future character as encouraged by the local controls.

Clause 7.1 Acid sulfate soils

41. The site is within a medium (Class 3) acid sulfate zone. The DA, as amended, is accompanied by an Acid Sulphate Soils Assessment prepared by C K Geotech which has assessed that the sand topsoil and underlying sand alluvium are not acid sulphate soils in accordance with National Acid Sulfate Soils Guidance. For that reason, I accept that an Acid Sulfate Soil Management Plan is not required during earthworks.

Clause 7.2 Flood Planning

42. The proposed ground floor level of the commercial premises is 4.35m in accordance with Chapter 6.7 – Water Cycle Management of the Gosford Development Control Plan 2013.

Clause 5.3 Development Near Zone Boundaries / Zone Interface

43. The Addendum Statement of Environmental Effects p 5 states:

“The new building design provides greater physical separation and building articulation / modulation along the side and rear boundaries that ensures that the new development is scaled to support the desired future character of an area and provides appropriate massing and space between buildings in accordance with the overarching aims objectives of the ADG. Importantly, there is much focus placed on increasing the building setback from the B2 / R1 zone interface boundary to (east and north) that provides an appropriate built form transition when viewed from the lower density zone.”

44. I accept the Council’s expert’s merit assessment that the recent amendments to the proposal adequately addresses the zone boundary interface which was a particular concern of the local objectors.

Central Coast Local Environmental Plan 2022 (CCLEP)

45. The DA, as amended, has considered the provisions of the CCLEP. The application was lodged on 24 December 2019 and the CCLEP commenced on 1 August 2022. Clause 1.8A of the CCLEP provides that:

“If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.”

Therefore, the CCLEP is to be considered, but not applied.

Other jurisdictional matters

Public notification

46. The DA has been notified in accordance with the EPA Act as follows: -

• 15 January 2020 for a period of 21 days.

• 9 August on the Notice of Motion Plans

47. The 67 submissions received during notification have been addressed through amendments to the plans and taken into consideration in formulating the agreed conditions of consent.

Owner’s consent

48. The DA was made with the written consent of the owner of the subject site, in accordance with the requirements of the EPA Regulation.

Merit issues

49. The parties agree that the amended plans, documentation and the conditions of consent resolve the Council’s merit concerns.

Conclusion

50. 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.

51. The Court notes that:

1. Central Coast Council as the relevant consent authority has agreed under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application 57779/2019 filed with the Court on 13 December 2021 with the plans and reports listed in Condition 1 of the conditions of consent provided as Annexure A.

2. The applicant has uploaded the amended development application on the NSW planning portal on 17 August 2022.

3. The applicant has subsequently filed the amended application with the Court on 18 August 2022.

52. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to development application no. 57779/2019 for the demolition of existing structures and the construction of a commercial and shop top housing development and associated landscaping on land legally comprising of the allotments described as Lots 1-4 in DP 24978 and known as nos. 227-233 Ocean View Road, Ettalong Beach, subject to the conditions set out in Annexure A.

………………..

S Dixon

Senior Commissioner of the Court

Annexure A (270274, pdf)

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Decision last updated: 08 September 2022