Kyle Bay Holdings Pty Ltd v Central Coast Council

[2024] NSWLEC 1063

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kyle Bay Holdings Pty Ltd v Central Coast Council [2024] NSWLEC 1063

Hearing dates:

Conciliation conference on 16 February 2024

Date of orders:

21 February 2024

Decision date:

21 February 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the Development Application, in the agreed sum of $12,000, and payable within 28 days of the date of this order.

(2)   The appeal is upheld.

(3)   Development consent is granted to Development Application DA/578/2021 for construction of a 4-storey residential flat building containing 11 units over basement parking and rooftop communal open space at 16 Bayview Avenue, The Entrance, being Lot 4 DP 17377, subject to conditions annexed here to and marked Annexure A.

Catchwords:

APPEAL – residential flat building – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 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 2021 ss 27, 29, 37, 38

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

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 28, 30

Wyong Local Environmental Plan 2013, cll 4.3, 4.6

Category:

Principal judgment

Parties:

Kyle Bay Holdings Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
S Siv (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2023/155034

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the construction of a residential flat building at 16 Bayview Avenue, The Entrance. The development application was refused on 9 March 2023. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 16 February 2024. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement is recorded in a signed agreement which was lodged on 1 February 2024, and follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The primary amendments were to the built form to ensure that it steps down and allows solar access to be maintained to the residential flat building to the south. Other amendments include changes to the ground floor to prevent overlooking from communal open space to bedrooms, an increase in the floor to floor heights, the addition of private open space for units 301 and 302, the replacement of one unit with communal open space, a reduced northern side setback, amended landscaping design, material changes for the stairs and lift shaft on the roof terrace, and changes to the roof. The development application, as amended, seeks development consent for the demolition of existing structures and the construction of a 4-storey residential flat building containing 11 units, with four one-bedroom units, five two-bedroom units and two three-bedroom units.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an agreed Jurisdictional Statement that sets out the background and amendments to the development application, as well as the jurisdictional prerequisites to the exercise of the power to grant development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. 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 (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The site is zoned R3 Medium Density Residential pursuant to the Wyong Local Environmental Plan 2013 (WLEP), which continues to apply to the site pursuant to the savings provision in cl 1.8A of the Central Coast Local Environmental Plan 2022. Development for the purpose of residential flat buildings is permissible with consent in the zone.

• I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 12m, pursuant to cl 4.3 of the WLEP. The proposed maximum height of 15.8m represents a contravention of 3.8m above the numerical standard. The contravention is confined to the front two thirds of the built form, where the ceiling of the upper floor, the lift overrun and the rooftop private open space breaches the standard. I am satisfied that the written request, lodged pursuant to cl 4.6 of the WLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach allows the built form to provide a transition between the four storey and eight storey residential flat buildings on either side of the site, arises from a unique situation where a greater height standard applies in the site’s vicinity for larger lot sizes, and the breach allows for the upper level to be sited in a location that does not cause adverse amenity impacts to the adjoining development. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as there is no impact caused by the breach of the standard. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• As required by cl 30(2) of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65), I am satisfied that adequate regard has been given to the design quality principles and to the objectives specified in the Apartment Design Guide for the relevant design criteria. Based on the compliance table in the Statement of Environmental Effects dated 10 March 2022, I have considered the Apartment Design Guide and the design quality of the development when evaluated in accordance with the design quality principles, as required by cl 28(2) of the SEPP 65.

• The amended development application is accompanied by a statement of a qualified designer that verifies the design of the development, as required by s 29 of the EPA Regulation 2021.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H). As the site is vacant with no known previous uses that could have resulted in contamination, it is unlikely to be contaminated.

• The site is within the coastal environment area and the coastal use area, pursuant to the SEPP R&H. Based on the location of the site and its distance from the foreshore, I have considered the matters in ss 2.10(1) and 2.11(1)(a), and, consistent with ss 2.10(2)(a) and 2.11(1)(b) I am satisfied that the development will not have any adverse impacts on the matters set out in ss 2.10(1) and 2.11(1)(a) of the SEPP R&H.

• Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 1 December 2023.

• Both the development application and the amended development application were publicly notified, and I have considered the issues raised in the submissions received in response to the notification.

6. 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)).

7. 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 EPA Act.

8. The Court notes:

1. That the Respondent, Central Coast Council, as the relevant consent authority, has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA/578/2021 in accordance with the documents listed below:

No.	Document	Date
1.	Schedule of Amendments prepared by Urban Link	13 November 2023
2.	Amended Architectural Plans prepared by Urban Link	6 November 2023
3.	Amended Landscape Plans prepared by Melissa Wilson Landscape Architects	21 November 2023
4.	Amended Clause 4.6 prepared by Think Planners	13 November 2023
5.	Amended Traffic Report prepared by Varga Traffic	21 September 2023
6.	Amended Waste Management Report prepared by Dickens Solutions	4 October 2023
7.	Solar Access Comparison prepared by Think Planners	28 September 2023
8.	Amended SEPP 65 Design Verification Statement prepared by Urban Link	13 November 2023
9.	Amended BASIX Certificate prepared by House Energy Certified	1 December 2023
10.	Amended NatHERS Certificate prepared by House Energy Certified	1 December 2023

9. The Court orders that:

1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the Development Application, in the agreed sum of $12,000, and payable within 28 days of the date of this order.

2. The appeal is upheld.

3. Development consent is granted to Development Application DA/578/2021 for construction of a 4-storey residential flat building containing 11 units over basement parking and rooftop communal open space at 16 Bayview Avenue, The Entrance, being Lot 4 DP 17377, subject to conditions annexed here to and marked Annexure A.

J Gray

Commissioner of the Court

Annexure A

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Decision last updated: 21 February 2024