KHMS Corporation Pty Ltd v Central Coast Council

[2022] NSWLEC 1653

Land and Environment Court

New South Wales

Medium Neutral Citation:

KHMS Corporation Pty Ltd v Central Coast Council [2022] NSWLEC 1653

Hearing dates:

Conciliation conference on 18 November 2022

Date of orders:

29 November 2022

Decision date:

29 November 2022

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The Appeal is upheld.
(2) Development Application No. 59732/2020, as amended, for the partial demolition of existing structures and construction of a mixed use building containing shop top housing, retail premises, serviced apartments and associated works, on land known as 302-306 Ocean View Road, Ettalong Beach being respectively Lot 1 Section 1 Deposited Plan 5298, Lot 2A Deposited Plan 381761 and Lot 2B Deposited Plan 381761, is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – retail use – shop top housing – amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Central Coast Local Environmental Plan 2022, 1.8A
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Gosford Local Environmental Plan 2014, cll 4.3, 4.6
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

Texts Cited:

Gosford Development Control Plan 2013

Category:

Principal judgment

Parties:

KHMS Corporation Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
P Saab (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Macquarie Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2022/44809

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by KHMS Corporation Pty Ltd (the Applicant) against the refusal of Development Application No. 59732/2020 by Central Coast Council (the Respondent) in October 2020.

2. The Development Application seeks Development Consent for the partial demolition of the existing structures and construction of a mixed-use building containing shop top housing, retail premises, serviced apartments and associated works. The proposed development is to be undertaken at 302-306 Ocean View Road, Ettalong Beach being respectively Lot 1 Section 1 Deposited Plan 5298, Lot 2A Deposited Plan 381761 and Lot 2B Deposited Plan 381761.

3. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act). This was held on 18 November 2022.

4. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the Development Application subject to agreed outcomes and agreed conditions.

5. The agreement reached by the parties was based on amended plans and material that resolved the contentions before the Court to the agreement of the parties. The applicant lodged the amended application on the NSW Planning portal on 15 November 2022 and these amendments were accepted by Council.

6. The amended application included, but is not limited to, the following relevant amendments:

1. Various refinements to the parking and loading arrangements.

2. Minor changes to the retail and landscaped areas.

3. Various refinements to the internal apartment designs.

4. Balconies adjusted, relocated, and/or removed.

5. Changes to roof top open space and lift core.

6. Updated BASIX and NatHERS material.

7. Updated traffic and parking assessment.

8. Updated Plan of Management.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

9. The Site is located in both the R1 - Residential Zone and the B2 Local Centre Zone under the Gosford Local Environmental Plan 2014 (GLEP 2014). The Development Application was lodged prior to the commencement of the Central Coast Local Environmental Plan 2022 (CCLEP 2022) and, in accordance with cl 1.8A of CCLEP 2022, the Development Application is to be assessed having regard to GLEP 2014, and as if CCLEP 2022 had not commenced. The development is permissible with consent.

10. The Development Application includes an exceedance of the Development Standard contained within cl 4.3 of the GLEP 2014 relating to the Height of Buildings (HoB). As a result, the application includes a written request seeking to vary a Development Standard pursuant to cl 4.6 of the GLEP 2014.

11. The written request sets out that the Amended Proposal does not comply with cl 4.3 of the GLEP 2014 for the portion of the development located on the B2 Local Centre Zone except for the lift overrun (which has an exceedance of approximately 306mm) and roof top stair access (which has an exceedance of approximately 625mm). The variation to the HoB Development Standard represents only a relatively minor variation (i.e.: 2.65% for the lift shaft and 5.2% for the fire stair) to the established maximum height limits for buildings in the Ettalong Beach village precinct.

12. The written request also sets out that the Amended Proposal does not comply with cl 4.3 of the GLEP 2014, relating to HoB, for the portion of the development located on the R1 Residential Zone. The height of the building on this portion of the Amended Proposal exceeds the maximum height limit of 8.5 metres by approximately 300mm. This results in a relatively minor variation to the established maximum height limits (i.e.: 3.5%) for buildings in the Ettalong Beach village precinct.

13. The parties have considered both the merits and jurisdictional content of the written request and agree that a variation of the HoB Development Standards, in both the residential and business zones, can be supported. The written request sets out, amongst other things, the following reasons to support the request to vary the Development Standards:

1. The written request provides a response as to how the development meets the various objectives relating to both the HoB and Zone Objectives including:

1. Demonstrating high-quality urban form with the encroachments set back from the building edge as seen from the street.

2. Ensuring that the property immediately to the west and public areas (Ferry Road and the foreshore reserve) continue to receive satisfactory exposure to sky and sunlight.

3. The development provides an appropriate transition in built form and land use intensity.

2. The written request sets out the reasons why strict adherence to the Development Standard is unreasonable or unnecessary.

14. The written request concludes that, in respect to both the Residential and Business Zone height limits:

1. Strict compliance would not be responsive to the intent of the GLEP 2014 objectives.

2. Strict compliance would not be responsive to the intent of the urban design controls contained within the Gosford Development Control Plan 2013 for the Ettalong Beach village precinct.

3. Strict compliance would not facilitate a satisfactory urban design outcome in response to the existing poor quality urban form.

4. Strict compliance would restrict building height and subsequent floor space outcomes to the extent that the alternative would be an underutilisation of the site in an area within the Ettalong Beach retail precinct that seeks higher height and density outcomes; and,

5. Strict compliance would not meet the desired future character of the precinct.

15. I have reviewed the amended cl 4.6 written request for jurisdictional content. It is for the reasons outlined above, and contained with the cl 4.6 written request, that I am satisfied that the matters raised by cl 4.6 of the GLEP 2014 have been considered and addressed. The decision to uphold the written request, to vary the HoB Development Standard, is a decision that the Court could have made in accordance with s 34(3) of the LEC Act.

16. As the presiding Commissioner, I am satisfied that the decision to grant Development Consent is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following:

1. Pursuant to the GLEP 2014, the subject site is zoned in part R1 - Residential Zone and in part B2 Local Centre Zone wherein the proposed development is permissible with Development Consent. In determining the Development Application, I have had regard to the objectives of the zone.

2. The various works required to manage stormwater are outlined by the applicant, in material provided by SGC Consulting Engineers, and where necessary, appropriate conditions ensuring the required outcomes are included in the Development Consent forming Annexure A.

3. The Development Application was placed on exhibition in October 2020 for 42 days. 30 objections were received during the notification period. At the site visit for a previously convened s34 conciliation, four residents made oral submissions. The current amended proposal was further notified for three weeks in October 2022. A further 20 submissions were received. The parties advise that submissions of objectors have been considered as required under s 4.15(1)(d) of the EPA Act along with the impact on the amenity of adjoining properties.

4. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

5. Consideration has been given to State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65). A SEPP 65 Report addressing all of the 9 Design Quality Principles has been submitted by the Applicant and found to be satisfactory to Council. An Apartment Design Guide Parts 3 and 4 Compliance Table was also submitted by the Applicant and found to be satisfactory to Council.

6. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The applicant has provided a Report on Preliminary Site Investigation prepared by Douglas Partners dated May 2020 specifying the findings of a preliminary investigation of the Site. The parties are satisfied that there is no known contamination of the Site, no further investigation of the Site is warranted and the Site is suitable for the proposed use.

17. 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’ agreement.

18. 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 EPA Act.

Orders

19. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld.

2. Development Application No. 59732/2020, as amended, for the partial demolition of existing structures and construction of a mixed use building containing shop top housing, retail premises, serviced apartments and associated works, on land known as 302-306 Ocean View Road, Ettalong Beach being respectively Lot 1 Section 1 Deposited Plan 5298, Lot 2A Deposited Plan 381761 and Lot 2B Deposited Plan 381761, is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”.

……………………….

Stuart Harding

Acting Commissioner of the Court

Annexure A (380042, pdf)

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Decision last updated: 29 November 2022