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State Environmental Planning Policy (Coastal Management) 2018 (repealed)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State Environmental Planning Policy No 55 – Remediation of Land (repealed)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

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).
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWLEC 1470
Decision Date: 08 September 2022

CaseChat Overview and Summary

Jedaclew Pty Ltd sought to appeal the refusal of their development application by Central Coast Council. The application sought approval for the demolition of existing structures and the construction of a commercial and shop top housing development on their property located on Ocean View Road, Ettalong Beach. The appeal was heard by the Land and Environment Court of New South Wales. The primary issue before the Court was whether the refusal of the development application was unreasonable and should be overturned in favour of granting the application. This involved an analysis of the Council’s reasoning for refusal, the suitability of the proposed development in light of the relevant planning policies, and whether the refusal had a rational basis.

The Court found that the Council's decision to refuse the development application was not supported by sufficient evidence and was therefore unreasonable. The Court highlighted that the Council’s concerns regarding the impact on traffic and the character of the area were not adequately substantiated. The Court considered the evidence presented by Jedaclew Pty Ltd, which demonstrated that the proposed development would not significantly impact traffic and would be in line with the Council's planning policies. Furthermore, the Court found that the development would provide economic benefits to the local area and did not conflict with the relevant planning documents. Based on these findings, the Court concluded that the refusal was not justified and the appeal should be upheld.

Accordingly, the Court granted the appeal and ordered that development consent be given to the application, subject to the conditions outlined in Annexure A. This decision ensures that Jedaclew Pty Ltd can proceed with their proposed development, provided they adhere to the specified conditions.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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