Khanafer v Central Coast Council

[2024] NSWLEC 1323

Land and Environment Court

New South Wales

Medium Neutral Citation:

Khanafer v Central Coast Council [2024] NSWLEC 1323

Hearing dates:

Conciliation conference 17 May 2024

Date of orders:

14 June 2024

Decision date:

14 June 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $10,000, payable within 28 days.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. DA/61592/2021 for the demolition of an existing house and construction of a three unit multi dwelling house development legally described as Lot 604 in DP 10570, known as 16 Warrah Street, Ettalong Beach subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Central Coast Local Environmental Plan 2022, cl 1.8A

Environmental Planning and Assessment Regulation 2000, cl 55

Gosford Local Environmental Plan 2014, cll 2.3, 2.7, 4.1B, 4.3, 4.4, 4.6, 7.1, 7.2

Standard Instrument (Local Environmental Plans) Order 2006, cl 8

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

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

Category:

Principal judgment

Parties:

Kassem Khanafer (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
A El-Azzi (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Finn Roache Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2023/117090

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of DA/61592/2021 for the demolition of existing structures and construction of a three unit multi dwelling development (DA) at Lot 604 in DP 10570 known as 16 Warrah Street, Ettalong Beach (site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17 May 2024. I have presided over the conciliation conference.

3. The Respondent, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg) to the Applicant amending DA/61592/2021 in accordance with the documents listed at [25] (amended DA).

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

5. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

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 EPA Act to grant consent to the DA.

Jurisdictional Prerequisites

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

9. The DA was lodged on 21 April 2021. I am satisfied that owner’s consent accompanied the DA. The Respondent notified the DA between 30 April 2021 and 28 May 2021. 27 submissions and a petition with 43 signatures were received. The amended DA was notified 27 November 2023 to 11 December 2023. Six submissions were received.

10. As agreement has been reached, the parties have considered the issues raised in the submissions.

Gosford Local Environmental Plan 2014

11. Pursuant to cl 1.8A of the Central Coast Local Environmental Plan 2022, the amended DA is saved and is therefore subject to the provisions of the Gosford Local Environmental Plan 2014 (GLEP).

12. The subject site is zoned R1 General Residential, where the proposed development is permissible with consent. Pursuant to cl 2.3 of the GLEP, I have had regard to the objectives of the zone. Clause 2.7 demolition applies, which is sought in the amended DA.

13. Clause 4.1B(2) in relation to minimum site area applies to the amended DA and requires a minimum of 750m². The site has a site area of 730.4m² and accordingly, is accompanied by a cl 4.6 written request prepared by Clarke Dowdle & Associates Development Consultants (written request). The parties agree and, with consideration of the written request, I accept that the provisions of cl 4.6 have been satisfied.

14. Clause 4.3 height of buildings applies, which allows a maximum height of 8.5m. The parties agree and I accept on the basis of the amended architectural plans (dwg DA041) that the amended application is less than 8.5m in height, at 8m.

15. Clause 4.4 floor space ratio (FSR) applies, which allows a maximum FSR of 0.5:1. As shown on the amended architectural plans (dwg DA030), the amended DA does not exceed the maximum, at 0.49:1.

16. Clause 7.1 acid sulfate soils applies to the site, located in Class 4 soils. The parties agree that as there are no works more than 1m below natural ground surface, the amended DA is unlikely to impact on acid sulfate soils. I accept that the amended DA is unlikely to lower the watertable (cl 7.1(6)).

17. The now repealed cl 7.2 flood planning applies to the site (pursuant to the savings provisions of cl 8 Standard Instrument (Local Environmental Plans) Order 2006). I accept the parties’ agreement that the provisions have been satisfied with consideration of the Water Cycle Management Plan prepared by Halcrow & Associated Pty Ltd dated 22 February 2023 (Water Management Plan) and stormwater plans accompanying the amended DA.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. Chapter 2, ss 2.10 and 2.11 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) in relation to coastal management applies to the amended DA. With consideration of the parties’ agreed submissions, the Water Management Plan, amended stormwater plans and the Statement of Environmental Effects prepared by Clarke Dowdle & Associates dated February 2023 (SEE), I accept that the provisions have been adequately addressed.

19. The provisions of s 4.6 of SEPP RH apply to the site. The site has a history of residential use as set out in the SEE. The parties agree, and I am satisfied, that the provisions of s 4.6 of SEPP RH have been adequately addressed.

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

20. On 1 October 2023, State Environmental Planning Policy (Sustainable Buildings) 2022 came into force and repealed State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). Pursuant to s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022, the amended DA is saved and SEPP BASIX applies instead.

21. The amended DA is accompanied by an amended BASIX Certificate. I accept the parties’ agreement that the provisions of SEPP BASIX have been met.

Conclusion

22. 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.

23. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

24. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

25. The Court notes that the Respondent has agreed, as the relevant consent authority, under cl 55 of the EPA Reg to the Applicant amending DA/61592/2021 to rely upon the following amended plans and documents:

Plan Detail	Job Number	Prepared by	Date
Cover Page – Drawing No. DA000 – Issue A	23071	ELK Designs	19-03-24
Demolition Plan – Drawing No. DA020 – Issue A	23071	ELK Designs	19-03-24
Site Plan – Drawing No. DA030 – Issue A	23071	ELK Designs	19-03-24
Site Coverage Plan – Drawing No. DA035 – Issue A	23071	ELK Designs	19-03-24
Building Height Diagram – Drawing No. DA041 – Issue A	23071	ELK Designs	19-03-24
Ground Floor – Drawing No. DA100 – Issue A	23071	ELK Designs	19-03-24
First Floor – Drawing No. DA110 – Issue A	23071	ELK Designs	19-03-24
Roof Plan – Drawing No. DA150 – Issue A	23071	ELK Designs	19-03-24
Elevations – Drawing No. DA300 – Issue A	23071	ELK Designs	19-03-24
Elevations – Drawing No. DA301 – Issue A	23071	ELK Designs	19-03-24
External Finishes – Drawing No. DA350 – Issue A	23071	ELK Designs	19-03-24
External Shadow Diagrams – Existing – Drawing No. DA900 – Issue A	23071	ELK Designs	19-03-24
External Shadow Diagrams – Existing – Drawing No. DA901 – Issue A	23071	ELK Designs	19-03-24
External Shadow Diagrams – Proposed – Drawing No. DA902 – Issue A	23071	ELK Designs	19-03-24
External Shadow Diagrams – Proposed – Drawing No. DA903 – Issue A	23071	ELK Designs	19-03-24
3D External Shadow Diagrams –Drawing No. DA904 – Issue A	23071	ELK Designs	19-03-24
Sediment Control – Drawing No. DA960 – Issue A	23071	ELK Designs	19-03-24
Site Analysis Plan – Sheet 1 of 3 - R12	KHAN110823	JK’s Garden Creations	27-10-23
Landscape Plan – Sheet 2 of 3 - R12	KHAN110823	JK’s Garden Creations	27-10-23
Specification Plan – Sheet 3 of 3 - R12	KHAN110823	JK’s Garden Creations	27-10-23
Water Cycle Management Plan	2308016.A	Halcrow & Associates Pty Ltd	11-10-23
Concept Stormwater Plan - DA 1 of 3	23.08.016	Halcrow & Associates Pty Ltd	10-10-23
Erosion Control Plan - DA 2 of 3	23.08.016	Halcrow & Associates Pty Ltd	10-10-23
Vehicle Swept Path Plan DA 3 of 3	23.08.016	Halcrow & Associates Pty Ltd	10-10-23
BASIX	1178104M_03	Building Sustainability Assessments	5 April 2024
NaTHERS	HR-YD34NF-01	Building Sustainability Assessments	5 April 2024

26. The Applicant filed the amended DA with the Court on 19 April 2024. The cl 4.6 written request was submitted on 28 May 2024.

Orders

27. The Court orders:

1. The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $10,000, payable within 28 days.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. DA/61592/2021 for the demolition of an existing house and construction of a three unit multi dwelling house development legally described as Lot 604 in DP 10570, known as 16 Warrah Street, Ettalong Beach subject to the conditions at Annexure A.

S Porter

Commissioner of the Court

117090.23 Annexure A

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Decision last updated: 14 June 2024