Livcorp Investments Pty Ltd v Central Coast Council

[2025] NSWLEC 1294

Land and Environment Court

New South Wales

Medium Neutral Citation:

Livcorp Investments Pty Ltd v Central Coast Council [2025] NSWLEC 1294

Hearing dates:

Conciliation conference on 30-31 January 2025

Date of orders:

02 May 2025

Decision date:

02 May 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA/554/2024 for the demolition of the existing dwelling house and construction of a new dwelling house at Lot 12 in DP 11004, known as 47 Ocean View Drive, Wamberal NSW 2260, subject to conditions set out in Annexure “A”.

Catchwords:

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

Legislation Cited:

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

Coastal Management Act 2016, s 5

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

Central Coast Local Environmental Plan 2022, cll 2.7, 4.3, 4.6, 7.1, 7.6

Environmental Planning and Assessment Regulation 2021, ss 27, 38

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

Category:

Principal judgment

Parties:

Livcorp Investments Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation:

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

Solicitors:
Tyrrells Planning Law (Applicant)
Central Coast Council (Respondent)

File Number(s):

2024/287499

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Central Coast Council, of development Application DA/554/2024 which seeks consent for the demolition of existing structures and the construction of a new dwelling house at Lot 12 in DP 11004, known as 47 Ocean View Drive, Wamberal.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30-31 January 2024. I presided over the conference, at which the parties reached agreement as to acceptable terms of a decision in the proceedings, which involved the Court upholding the appeal and granting consent to the development application subject to conditions. As a result, the matter concluded in conciliation and did not proceed to a hearing.

4. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application to reflect the outcome of the conciliation process.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified the in a jurisdictional note. From this I note the following points.

Jurisdictional matters

6. The development application was made with the written consent of the owner of the land.

7. The application was adequately notified from 7-21 June 2024. Twenty submissions were received, but no oral submissions were made at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in the written submissions. In particular, I note that the parties are satisfied that the proposed development does not rely on a sea wall, and the visual impact of the proposed development from the beach has been considered, and reduced through the conciliation process. The parties agree that the amended application does not necessitate renotification.

8. The subject site is zoned R2 Low Density Residential under the Central Coast Local Environmental Plan 2022 (CCLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

9. Demolition is permitted with consent pursuant to cl 2.7 of the CCLEP.

10. Pursuant to CCLEP cl 4.3, a maximum building height of 8.5m applies to the subject site. The proposed development, as amended, exceeds this at four points due to roof elements reaching heights of 8.98m, 9.04m, 9.24m and 9.31m, variations of between 5.6 to 9.5%.

11. As a result of this exceedance, cl 4.6(3) of the CCLEP allows the applicant to request a contravention of this development standard. This request must demonstrate that compliance with the height of buildings development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the contravention. To that end, the applicants have submitted a written request prepared by Coastal Planning and Consulting as attachment A to the Statement of Environmental Effects (SEE) (the cl 4.6 request). Pursuant to CCLEP cl 4.6, I am satisfied that:

1. The cl 4.6 request demonstrates that compliance with the Height of Buildings development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the R2 Low Density Residential Zone and the Height of Buildings development standard, notwithstanding the non-compliance. Further, the non-compliance will not be perceptible from the beach, street or surrounding properties, and does not result in any adverse impacts on the amenity of adjoining properties or the beach due to its siting and limited extent.

2. The cl 4.6 request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that the breach of building height is minor in nature in both qualitative and quantitative terms and does not result in any adverse impacts on adjoining properties. Further, it does not result in a dwelling that is excessive in terms of bulk and scale within its context.

3. The contravention is therefore justified by a lack of adverse impact on the neighbouring residents, by the breach of the standard being minor in nature, and by the resulting contribution and compatibility with the context.

4. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

12. Pursuant to CCLEP cl 7.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, however from the parties’ submission I accept that the proposed works are not likely to lower the water table below 1 metre Australian Height Datum on any adjacent Class 1, 2, 3 or 4 land.

13. Pursuant to CCLEP cl 7.6, the parties submit and I accept that the site is currently serviced by all listed essential services.

14. Pursuant to s 2.10 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), the site is mapped as within the coastal environment area. From the information contained in the SEE by Coastal Planning and Consulting, dated December 2023 and the Coastal Engineering Advice report by Horton Coastal Engineering dated 16 April 2024 (Coastal Engineering Advice), I accept that the matters listed in s 2.10(1) have been considered, and that as required, the proposal is appropriately designed and sited to avoid an adverse impact of the type referred to in s 2.10(1).

15. The site is also mapped as being within the coastal use area pursuant to s 2.11 of the Resilience and Hazards SEPP. Again from the parties’ submissions, the Coastal Engineering Advice and the information contained in the SEE, I accept that the matters listed in s 2.11(1) have been considered, and that as required by s 2.11(2) the proposal is designed and sited to avoid an adverse impact of the type referred to in s 2.11(1).

16. Pursuant to s 5 of the Coastal Management Act 2016, the site is located within the coastal zone. For the reasons given in the SEE and the Coastal Engineering Advice, I accept that the proposed development is not likely to increase the risk of coastal hazards on the subject site or any other land, as required by s 2.12 of the Resilience and Hazards SEPP.

17. The Gosford Beaches Coastal Zone Management Plan is a certified coastal management plan and applies to the site. This plan allows for piled beachfront development to be constructed on Wamberal Beach to manage the risk to public safety and built assets. The proposed development is piled, consistent with this plan, and is therefore consistent with the requirements of s 2.13 of the Resilience and Hazards SEPP.

18. Section 4.6 of the Resilience and Hazards SEPP requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. The parties submit, and I accept, that there is no known contamination on the site nor any history of contaminating activities and that, subject to the agreed conditions of consent, the site is suitable for the intended, continued residential use.

19. Pursuant to s 27 of the EPA Regulation, a BASIX certificate that relates to the development as amended, accompanies the application. Compliance with this certificate is required under the agreed conditions of consent.

Conclusion

20. For these reasons, 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, and that I am therefore required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

21. The Court notes:

1. The respondent has agreed, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application No DA/554/2024 to rely on the following plans and documents:

Architectural Plans revision D-1 prepared by White + Dickson Architects dated 30 January 2025
Plan No.	Plan Title
D000	Cover Sheet
D100	Site Plan + Site Analysis Plan
D101	Landscape Plan
D200	Lower Ground Floor Plan
D201	Upper Ground Floor Plan
D202	First Floor Plan
D203	Roof Plan
D300	Sections
D301	Sections
D400	Elevations
D401	Elevations
Structural Engineering Plans prepared by Northrop dated January 2025
Plan No.	Revision No.	Plan Title	Date
S01.1	C	Cover Sheet	14 January 2025
S10.1	F	Lower Ground & Foundation Plan	30 January 2025
S20.1	H	Upper Ground Floor Slab Plan	30 January 2025
S30.1	C	First Floor Slab & Lower Roof Plan	14 January 2025
S40.1	C	Roof Framing Plan	14 January 2025
S50.1	F	Coastal Hazard Section	20 January 2025
Shadow Diagrams revision C prepared by White + Dickson Architects dated 11 December 2024
Plan No.	Plan Title
Sheet 1	Shadow Diagrams June 22 9am
Sheet 2	Shadow Diagrams June 22 12pm
Sheet 3	Shadow Diagrams June 22 3pm
Survey Plan revision 04 prepared by Matthew Freeburn dated 21 June 2021
Beachside Treatment – with seawall revision C prepared by White + Dickson Architects dated 11 December 2024
Clause 4.6 Variation Request prepared by Coastal Planning and Consulting dated 8 January 2024
Preliminary Acid Sulfate Soil Assessment prepared by JK Environments dated 16 January 2025
DA Structural Advice, Ref: NL203327_E01.cos(7) prepared by Northrop dated 30 January 2025

Orders

22. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA/554/2024 for the demolition of the existing dwelling house and construction of a new dwelling house at Lot 12 in DP 11004, known as 47 Ocean View Drive, Wamberal NSW 2260, subject to conditions set out in Annexure “A”.

E Washington

Commissioner of the Court

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Annexure A (318912, pdf)

Decision last updated: 02 May 2025