Lin v Central Coast Council

[2025] NSWLEC 1038

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lin v Central Coast Council [2025] NSWLEC 1038

Hearing dates:

Conciliation conference 16, 17 December 2024

Date of orders:

24 January 2025

Decision date:

24 January 2025

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA/309/2024 for the demolition of existing structures and construction of a dwelling house and an inground swimming pool with associated landscaping and stormwater works in relation to Lot B DP348456, being 23 Coogee Road, Point Clare is determined by the grant of consent subject to the conditions set out in Annexure ‘A’ to this agreement.

Catchwords:

DEVELOPMENT APPLICATION: Demolition and construction of a new dwelling house and pool – conciliation conference – amended plans – agreement between the parties – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Central Coast Local Environmental Plan 2022, cll 2.7, 4.3, 7.1, 7.6

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.3

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

Category:

Principal judgment

Parties:

Haibiao Lin (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
T March (Applicant)
C Rose, solicitor (Respondent)

Solicitors:
McKee Legal Solutions (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2024/258004

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal of development application DA/309/2024. The development application seeks consent for the demolition of the existing dwelling and construction of a new dwelling house and an inground swimming pool with associated landscaping and stormwater works. The development is proposed at 23 Coogee Road, Point Clare (Lot B in DP 348456).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on 16 and 17 December 2024. I presided over the conciliation conference. At the conciliation conference, agreement was reached between the parties as to the terms of a decision that would be acceptable to them. This agreed decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 17 December 2024.

3. As the presiding Commissioner, I am satisfied that the decision 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). I form this state of satisfaction on the basis that:

1. The development application was made with the written consent of the owners of the subject site: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2. The development application was notified by the Respondent between 22 March to 9 April 2024. Sixteen submissions were received in response to the notification. Further, at the commencement of the proceedings onsite the Court heard from a number of residents of their concerns with the development. The key concerns can be summarised as: loss of privacy, view loss, site stability, bulk and scale, character, potential noise, impact on trees and traffic/parking concerns. Prior to and during the conciliation the Applicant undertook a number of amendments to the design of the development application. The key amendments are:

1. Reducing the length of the dwelling towards the foreshore;

2. Reducing the basement footprint and excavation required;

3. Introducing significant additional planting in keeping with the character and scenic quality of the site;

4. Introducing a sandstone finish to the lower level

5. Pushing back of the ground floor and basement level balconies;

6. Introducing a planter box to the north of the ground floor balcony;

7. Removal of southern side path to protect trees;

8. Providing frosted glazing;

9. Reduction of the building length on the first floor northern elevation;

10. Articulation added to the first floor southern elevation by stepping in the wall.

11. Provision of an updated Arboricultural Impact Assessment

12. Provision of a Geotechnical Report

3. I am satisfied that the submissions have been considered in the determination of the development application by either amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

4. The proposed development is ‘BASIX development’ as defined by the EPA Regulation and a BASIX certificate is required for the development application pursuant to s 27 of the EPA Regulation. An updated BASIX certificate has been provided as part of the Amended Proposal satisfying these requirements. The BASIX Certificate satisfied the requirement in s 27 of the EPA Regulation as it has been issued no earlier than 3 months before the date on which the development application was made. A condition of consent requires compliance with the commitments detailed in the BASIX certificate.

5. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that the land to be utilised for residential purposes has been historically utilised for residential use. There are no known previous uses that would lead to the site being contaminated or unsuitable for ongoing use for residential purposes. The development application does not propose a change of use. The parties agree and I accept that s 4.6 of SEPP RH is satisfied.

6. Pursuant to Chapter 2 of SEPP RH, the subject site is located within both the ‘Coastal Environment’ and ‘Coastal Use’ areas. Pursuant to s 2.10(1) of SEPP RH, the consent authority must consider whether the proposed development is likely to have an adverse impact on the matters listed.

7. As the consent authority I am satisfied that the proposed development is not likely to have an adverse impact on any of the matters listed in s 2.10(1). Those matters are:

(a)  the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,

(b)  coastal environmental values and natural coastal processes,

(c)  the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,

(d)  marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,

(e)  existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(f)  Aboriginal cultural heritage, practices and places,

(g)  the use of the surf zone.

8. As such, the proposed development does not trigger the considerations pursuant to s 2.10(2). Further, the proposed dwelling is set back significantly from the foreshore and the proposal is supported by Geotechnical Report prepared by Geofirst Pty Ltd, dated 12 December 2023. Conditions of consent are proposed to manage engineering detailing for the construction of the building.

9. Pursuant to s 2.11(1)(a) of SEPP RH, the consent authority must consider whether the proposed development is likely to have an adverse impact on the matters listed. Those matters are:

(i)  existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(ii)  overshadowing, wind funnelling and the loss of views from public places to foreshores,

(iii)  the visual amenity and scenic qualities of the coast, including coastal headlands,

(iv)  Aboriginal cultural heritage, practices and places,

(v)  cultural and built environment heritage,

10. Pursuant to s 2.11(1)(b) the consent authority I am satisfied that the proposed development is designed, sited and will be managed to avoid an adverse impact on any of the matters listed in s 2.11(1)(a) and in making this decision, I have considered the surrounding coastal and built environment, and the bulk, scale and size of the proposed development pursuant to s 2.11(1)(c). The amended development application has a bulk, scale and materiality that is compatible with the adjoining development, has an acceptable (and minimised) impact on views from adjoining properties, and has no known impact on the matters in (a)(i), (iv) or (v) at s 2.11(1) of SEPP RH.

11. Section 2.12 of SEPP RH requires that the consent authority must not grant development consent on land within the coastal zone unless it is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land. The consent authority is satisfied that the proposal does not cause an increased risk of coastal hazards on the land or other land given the setback of the proposed development from the eastern boundary.

12. Section 2.13 of SEPP RH requires that the consent authority must not grant development consent on land within the coastal zone unless it has taken into consideration the relevant provisions of any certified coastal management program that applies to the land. No Coastal management Plan applies to this site.

13. Pursuant to s 2.3 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), Chapter 2 ‘Vegetation in Non Rural Areas’ applies to the development application. The proposed tree removal has been assessed in the arboricultural assessment which forms part of the development application. That assessment concludes that the proposed removal of the nominated trees is consistent with the provisions of SEPP BC when consideration is given to the tree species, integrity, level of significance and replacement planting proposed in the landscaping strategy for the site. I accept, that the relevant provisions of Chapter 2 of SEPP BC are met.

14. Pursuant to Central Coast Local Environmental Plan 2022 (LEP 2022) the site is zoned R2 Low Density Residential Development. Dwelling houses are permitted with consent. In determining the development application, I have given consideration to the objectives of the zone, which are:

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To encourage best practice in the design of low density residential development.

•  To ensure that non-residential uses do not adversely affect residential amenity or place unreasonable demands on services.

•  To maintain and enhance the residential amenity and character of the surrounding area.

15. Pursuant to cl 2.7 of LEP 2022 demolition is permitted with consent.

16. Pursuant to cl 4.3 ‘Height of buildings’ the maximum permissible height for the site is 8.5m. The amended development application is compliant with the height standard.

17. Clause 7.1 ‘Acid sulphate soils’ requires development consent for works to which the table at subcl (2) applies. The subject site is mapped as Class 5, however the development application does not include works by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land.

18. Pursuant to cl 7.6 (Essential Services) in LEP 2022 consent must not be granted unless the consent authority is satisfied that all of the services that are essential for the development are available or that adequate arrangements have been made to make them available when required. The parties agree, and I accept that this clause is satisfied as the proposed development replaces a serviced existing dwelling.

4. 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" (subs 34(3)(b)).

5. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

6. The Court notes that Central Coast Council as the relevant consent authority has agreed, under s 38 of the EPA Regulation, to the applicant amending the development application DA Number DA/309/2024 in accordance with the plans and documents listed below:

Reference/ DWG No	Title/Description	Revision	Prepared by	Date
Architectural Plans:
010	BASIX Commitment	E	WEN Architects	16/12/2024
020	General notes	E	WEN Architects	16/12/2024
030	Demolition Plan	E	WEN Architects	16/12/2024
050	Site Plan	E	WEN Architects	16/12/2024
060	Front Setback Diagram	E	WEN Architects	16/12/2024
100	Swimming Pool	F	WEN Architects	16/12/2024
110	Basement GA Plan	E	WEN Architects	16/12/2024
120	Ground Floor GA Plan	E	WEN Architects	16/12/2024
130	First Floor GA Plan	E	WEN Architects	16/12/2024
140	Roof Plan	E	WEN Architects	16/12/2024
200	East Elevation	F	WEN Architects	16/12/2024
210	North Elevation	E	WEN Architects	16/12/2024
220	South Elevation	E	WEN Architects	16/12/2024
230	West Elevation	E	WEN Architects	16/12/2024
300	Section A	E	WEN Architects	16/12/2024
310	Section B	F	WEN Architects	16/12/2024
400	Window Schedule	E	WEN Architects	16/12/2024
500	Area Calculation	E	WEN Architects	16/12/2024
540	Building Envelope	E	WEN Architects	16/12/2024
550	Sediment Control Plan	E	WEN Architects	16/12/2024
560	Site Analysis	E	WEN Architects	16/12/2024
561	Site Analysis	C	WEN Architects	16/12/2024
570	South Elevation Diagram	B	WEN Architects	16/12/2024
600	External Finishes Schedule	E	WEN Architects	16/12/2024
700	Driveway	C	WEN Architects	16/12/2024
701	Lift Details	C	WEN Architects	16/12/2024
Civil Engineering Plans:
ST01	Site Stormwater Drainage Plan	C	Stronghold Engineers	11/12/2024
ST02	Lower Ground Floor Stormwater Drainage Plan	C	Stronghold Engineers	11/12/2024
ST03	Ground Floor Stormwater Drainage Plan	C	Stronghold Engineers	11/12/2024
ST04	Erosion and Sediment Control Plan and Details	C	Stronghold Engineers	11/12/2024
Landscape Plans:
1 of 3	Landscape Plan	C	Paul Scrivener Landscape	4/12/2024
2 of 3	Details Plan	C	Paul Scrivener Landscape	4/12/2024
3 of 3	Planting Plan	B	Paul Scrivener Landscape	19/11/2024
Sewer Pipe Solution Plan:
SK1	Sewer Pipe Solution	1	Stronghold Engineers	21/08/2024
Survey:
Sheet 1 of 1	Plan of Detail and Levels Over Lot B in D.P.348456	-	M.Y. XU and Co.	22/08/2024
Report:
Name		Prepared by		Date
Arboricultural Impact Assessment		Seasoned Tree Consulting		03/12/2024
Geotechnical Report		Geofirst Pty Ltd		12/12/2023

7. The Court orders that:

1. The appeal is upheld.

2. Development Application DA/309/2024 for the demolition of existing structures and construction of a dwelling house and an inground swimming pool with associated landscaping and stormwater works in relation to Lot B DP348456, being 23 Coogee Road, Point Clare is determined by the grant of consent subject to the conditions set out in Annexure ‘A’ to this agreement.

D Dickson

Commissioner of the Court 

Annexure A

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Decision last updated: 24 January 2025