Kalava v Central Coast Council

[2019] NSWLEC 1221

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kalava v Central Coast Council [2019] NSWLEC 1221
Hearing dates:	Conciliation conference on 17 April 2019
Date of orders:	05 June 2019
Decision date:	05 June 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1) Leave is granted to the Applicant to amend Development Application DA/135/2017 in the following manner: (a) Replace Appendix 7 of the Statement of Environmental Effects with the Plan of Management dated 9 May 2019. (b) Update the Site Plan Detail HIS00216 DA.001 to the version of that plan showing the proposed location of a clothes line. (c) Update the Stormwater Plan 190371-SK-001 to version B of that plan dated 1 May 2019 and showing the balance tank overflow to connect to a separate pit / trench to be designed at CC stage. (d) Include the Wastewater Management Report prepared by Decentralised Water Consulting dated 30 April 2019. (e) Include the Plant Community Assessment & 7 Part Test Assessment on Proposed Sewerage Management prepared by Anderson Environment & Planning dated 28 February 2019. (2) No order as to costs. (3) The Appeal is upheld (4) Development Application DA/135/2017 for the construction and operation of a Transitional Group Home for the purposes of drug and alcohol rehabilitation on land at 74 Glen Road, Ourimbah is approved, subject to the conditions in annexure “A” hereto.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Rural Fires Act 1997 State Environmental Planning Policy (Affordable Rental Housing) 2009 Wyong Local Environment Plan 2013
Texts Cited:	Wyong Shire Development Control Plan 2013
Category:	Principal judgment
Parties:	Sujatha Kalava (Applicant) Central Coast Council (Respondent)
Representation:	Counsel: L Nurpuri (Respondent)   Solicitors: N Simmons, Sparke Helmore (Applicant) Department of Environment Climate Change & Water (Respondent)
File Number(s):	2018/356686
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against refusal by Central Coast Council (hereafter the Council) of Development Application (DA) 135/2017, which seeks demolition of existing structures, removal of 5 trees, and construction of a drug and alcohol rehabilitation facility with a swimming pool, on Lot 2 DP 801944, also known as 74 Glen Road, Ourimbah.

2. This Class 1 appeal is made under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act 1979).

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 17 April 2019. I presided over the conciliation conference. There were seven (7) objectors heard at this conciliation, whom raised concerns regarding privacy, character and use, public interest, flooding, bushfire and ecology.

4. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant consent to DA 135/2017 with conditions.

5. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act 1979 to grant consent to DA 135/2017 under appeal with conditions.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistency with: State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH); Wyong Local Environment Plan 2013 (WLEP); and Wyong Shire Development Control Plan 2013 (WDCP). The parties agree that the proposed conditions of consent relate to the merits of the proposal.

7. The amened plans provide access for bushfire services to the rear of the site and the Rural Fire Service (RFS) has recommended conditions that will be imposed on the grant of consent of the proposed development. The RFS has confirmed that the proposal is not a “special fire protection purpose” and an authority under s 100B of the Rural Fires Act 1997 is not required.

8. The parties agree that the amended plans and Plan of Management provide for a proposed development that is consistent with the definition of a “group home (transitional)” or “transitional group home”, and is permissible, pursuant to cl 43 of the SEPP ARH, being a dwelling:

(a) that is occupied by persons as a single household with or without paid supervision or care and whether or not those persons are related or payment for board and lodging is required; and

(b) that is used to provide temporary accommodation for relief or rehabilitation of people with a disability or for drug or alcohol rehabilitation purposes, or that is used to provide half way accommodation for persons formerly living in institutions or temporary accommodation comprising refused for men, women or young people.

...

9. The parties also agree that cl 46 of the SEPP ARH is satisfied based on the Social Impact Assessment accompanying the development application which has regard to the community need for the group home.

10. With regards to the WLEP, the parties have assessed that the proposed development does not contravene any development standards and specifically resolves the contentions as follows:

1. Clauses 2.1 and 2.3 - the site is located within E4 Environmental Living. The proposed group home is permissible in the zone and is not inconsistent with the zone objectives to protect ecological habitats.

2. Clause 7.2 – only a small proportion (1%) of the lower lying area of the site is flood affected and the parties agree that the proposed development is located above the flood prone area, therefore will not impact on flood waters, alter flood regimes or flow conveyance capacity.

3. Clauses 7.9 – based on the amended waste management plan and supporting information, the proposed development is capable of providing required essential services.

11. Based on the amended plans and supporting documents, the contentions that relate to the controls as specified in the WSDCP are resolved to the satisfaction of the parties, specifically those related to water/waste management, parking and flora/fauna protection.

12. I am satisfied that there are no jurisdictional impediments to this agreement and that the DA based on the amended plans with supporting documents and provided for in the conditions of consent, satisfies the requirements of s 4.15(1) of the EPA Act 1979.

13. 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 1979 to dispose of the proceedings in accordance with the parties' decision.

14. The Court orders:

1. Leave is granted to the Applicant to amend Development Application DA/135/2017 in the following manner:

1. Replace Appendix 7 of the Statement of Environmental Effects with the Plan of Management dated 9 May 2019.

2. Update the Site Plan Detail HIS00216 DA.001 to the version of that plan showing the proposed location of a clothes line.

3. Update the Stormwater Plan 190371-SK-001 to version B of that plan dated 1 May 2019 and showing the balance tank overflow to connect to a separate pit / trench to be designed at CC stage.

4. Include the Wastewater Management Report prepared by Decentralised Water Consulting dated 30 April 2019.

5. Include the Plant Community Assessment & 7 Part Test Assessment on Proposed Sewerage Management prepared by Anderson Environment & Planning dated 28 February 2019.

2. No order as to costs.

3. The Appeal is upheld

4. Development Application DA/135/2017 for the construction and operation of a Transitional Group Home for the purposes of drug and alcohol rehabilitation on land at 74 Glen Road, Ourimbah is approved, subject to the conditions in annexure “A” hereto.

……………………….

Sarah Bish

Commissioner of the Court

Annexure A

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Decision last updated: 05 June 2019