Jia v Central Coast Council

[2024] NSWLEC 1602

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jia v Central Coast Council [2024] NSWLEC 1602

Hearing dates:

Conciliation conference on 16 September 2024

Date of orders:

27 September 2024

Decision date:

27 September 2024

Jurisdiction:

Class 1

Before:

Miller AC

Decision:

The orders of the Court are:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment to the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $3,000.

(2) Leave is granted to the Applicant to rely upon the clause 4.6 variation for height, prepared by Urbanism Planning & Development, dated 16 May 2024.

(3) The appeal is upheld.

(4) Development Application No. DA/497/2023 for demolition of an existing building and construction of a new two storey dwelling, a detached single storey granny flat and swimming pool on land legally described as Lot 7 Deposited Plan 14946 and known as 14 Brisbane Water Drive, Koolewong NSW 2256 is determined by the grant of consent subject to the conditions contained in Annexure A.

Catchwords:

APPEAL – development application – dwelling house and secondary dwelling – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.15, 8.7

Land and Environment Court Act 1979, s 34

Central Coast Local Environmental Plan 2022, cll 2.7, 4.3, 4.4, 4.6, 5.4, 5.21, 7.1, 7.6

Environmental Planning and Assessment Regulation 2021, ss 23, 27, 38

State Environmental Planning Policy (Housing) 2021, Ch 4, ss 50, 52, 53

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.10, 2.11, 2.12, 2.13, 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.98, 2.99, 2.100, 2.119

Category:

Principal judgment

Parties:

Lina Jia (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2023/338732

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 (EP&A Act) against the deemed refusal of Development Application No. DA/497/2023 (the DA) for demolition of an existing building and construction of a new two storey dwelling, a detached single storey granny flat and swimming pool on land legally described as Lot 7 Deposited Plan 14946 and known as 14 Brisbane Water Drive, Koolewong NSW 2256 by Central Coast Council.

2. The Court arranged a conciliation conference between the parties, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference, which I presided over, was held on 16 September 2024.

3. The Respondent, as the relevant consent authority approved, under s 38 of the Environmental Planning and Assessment Regulation 2021 (EP&A Reg), the Applicant amending DA/497/2023 in accordance with the documents listed at Annexure A (amended DA).

4. As part of the conciliation conference process, the parties reached agreement on the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the amended application subject to conditions of consent.

5. As part of the s 34 agreement, the parties submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements. I have considered the contents of the jurisdictional statement together with the Class 1 Application and its attachments, and the amended application and additional documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be addressed pursuant to s 4.15(1) of the EP&A Act.

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

JURISDICTIONAL MATTERS

8. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision that the Court can make in the proper exercise of its functions. I formed this state of satisfaction and consider that each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

1. Owner’s consent accompanied the DA as required by s 23 of the EP&A Reg.

2. In respect of consultation, I am advised that the Respondent notified the original DA between 24 March and 12 April 2023 with one submission being received. The Respondent further renotified the amended application from 14 to 28 June 2024 with one further submission being received. The Court and the parties did not hear any oral submissions at the s 34 conciliation conference with no objectors advising the Respondent that they wished to address the Court. Further, I understand that in reaching agreement, the parties have considered the concerns raised in the submissions including most notably the potential for overshadowing.

3. A valid BASIX certificate has been submitted in accordance with the requirements of s 27 of the EP&A Reg.

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

1. Chapter 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) applies as the land is located within the coastal zone and both the ‘coastal environmental area’ and the ‘coastal use area’. Having regard to:

1. the amended design (which includes a floor level above the probable maximum flood (PMF)

2. the flood risk management report (27 February 2023) and the flood evacuation plan (15 May 2024) prepared by JCO Consultants

3. the engineering design statement (16 May 2024) prepared by Inhouse Consulting Engineers, and

4. conditions of consent

I am satisfied in respect of the relevant matters contained in ss 2.10, 2.11 and 2.12 of the RH SEPP. In respect of s 2.13, I note that no certified coastal management program applies to the land.

2. Prior to the granting of consent, consideration is also required to given to whether a subject site is contaminated under s 4.6 of RH SEPP. As outlined in the Statement of Environmental Effects prepared by Ryan Planning and Development (30 November 2022), it is understood that the site has historically been used for residential accommodation and that contamination is unlikely. Accordingly, I am satisfied that the land is suitable for the proposed use and that the requirements of the RH SEPP have been met.

State Environmental Planning Policy (Housing) 2021 (Housing SEPP)

1. Chapter 4 of the Housing SEPP applies to secondary dwellings with s 50 providing that secondary dwellings are permissible in an R2 residential zone consistent with the proposal. The proposal is also consistent with s 52 which allows for a maximum area for a secondary dwelling of 60m² and s 53 which provides for a minimum site area of 450m² and minimum number of car parking spaces as existing. In this regard, it is noted that the subject site has an area of 803m² in compliance and proposes 2 car parking spaces in compliance with the requirements.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP)

1. The site is located adjacent to a rail corridor therefore ss 2.98, 2.99 and 2.100 of the TI SEPP apply. I note none of the relevant matters outlined in s 2.98 apply in the circumstance. Further, in respect of s 2.99 the site is more than 25m from the rail corridor therefore the provisions of s 2.98 do not apply. Section 2.100 which related to rail noise is satisfied as the rail noise guidelines have been considered and conditions 2.9 and 6.8 are proposed to ensure compliance with the relevant requirements and to ensure internal acoustic amenity to the future dwellings.

2. The site is also located with frontage to a classified road therefore s 2.119 must be considered. Having regard to the low scale of the proposed development, the amended architectural plans and the swept path plans prepared by Archer Consultants (16 May 2024), I am satisfied that the proposal will not adversely affect the functioning of the classified road as required.

Central Coast Local Environmental Plan 2022 (CCLEP)

1. The development works are for the purposes of a dwelling house, secondary dwelling and ancillary development which is a permissible use in the R2 – Low Density Residential zone in which the site is located pursuant to the CCLEP.

2. The development is also consistent with the objectives of the R2 – Low Density Residential zone including notably “To provide for the housing needs of the community within a low density residential environment”.

3. Demolition is permissible with consent under cl 2.7 of CCLEP and consent is sought for demolition as part of the subject application.

4. The proposal does not comply with the maximum 8.5m height limit applying to the land under cl 4.3 of CCLEP having a maximum height of 8.760m (3.05% exceedance). Notwithstanding I am satisfied that consent should be granted as the contravention arises primarily as a result of flood affectation and the need to establish floor levels above the relevant flood planning levels. Further, I considered that the proposed non-compliance is minor (being limited to a small area centrally located within the main dwelling), does not give rise to any significant adverse impacts particularly when compared to a compliant development and the shadow impacts. Having regard to the circumstances of the case I am satisfied, based on the written request prepared by Urbanism Planning and Development (16 May 2024) lodged pursuant to cl 4.6 of the CCLEP, that:

1. sufficient environmental planning grounds have been established that justify the breach in the height of building development standard by demonstrating that the proposed non-compliance is a result of the required floor levels due to flood affectation

2. compliance with the height of building development standard is unreasonable and unnecessary in the circumstances of the case given that the proposal achieves the objectives of the development standard notwithstanding the non-compliance and will not result in any adverse impacts, and

3. the proposal is in the public interest because it is consistent with the objectives of the zone and of the development standard.

5. There is no applicable maximum floor space ratio applying to the land in accordance with cl 4.4 of CCLEP.

6. The proposed secondary dwelling complies with the maximum area of 60m² as required by cl 5.4 of CCLEP.

7. The proposal complies with the requirements of cl 5.21 of CCLEP in respect of flooding having regard to;

1. the amended design (which includes a floor level above the PMF)

2. the flood risk management report (27 February 2023) and the flood evacuation plan (15 May 2024) prepared by JCO Consultants

3. the engineering design statement (16 May 2024) prepared by Inhouse Consulting Engineers, and

4. conditions of consent.

8. The site is mapped as potentially containing Class 2 Acid Sulfate Soils and the proposal will disturb the ground surface. Accordingly, consistent with cl 7.1 of CCLEP acid sulfate soil testing has been undertaken and an Acid Sulfate Soil Management Plan prepared which forms part of the Limited Geotechnical Report prepared by Agility Engineering (26 September 2022). The plan illustrates that the proposed works can be undertaken in accordance with the relevant requirements.

9. Finally, under cl 7.6 of CCLEP, development consent must not be granted unless the consent authority is satisfied that essential services are available or that adequate arrangements have been made to make them available. The site is currently serviced therefore I am satisfied that essential services are available.

Conclusion

9. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

10. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EP&A Act.

11. The Court notes that:

1. The Respondent, Central Coast Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No. 497/2023 to rely on the documents as outlined in Annexure A.

2. The Applicant filed the plans and documents listed in Annexure A on 13 September 2024.

Orders

12. The orders of the Court are:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment to the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $3,000.

2. Leave is granted to the Applicant to rely upon the clause 4.6 variation for height, prepared by Urbanism Planning & Development, dated 16 May 2024.

3. The appeal is upheld.

4. Development Application No. DA/497/2023 for demolition of the existing building and construction of a new two storey dwelling, a detached single storey granny flat and swimming pool on land legally described as Lot 7 Deposited Plan 14946 and known as 14 Brisbane Water Drive, Koolewong NSW 2256, is determined by the grant of development consent subject to the conditions in Annexure A.

H Miller

Acting Commissioner of the Court

338732.23 Annexure A

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Decision last updated: 27 September 2024