Manylike Pty Ltd v Central Coast Council

[2019] NSWLEC 1233

Land and Environment Court

New South Wales

Medium Neutral Citation:	Manylike Pty Ltd v Central Coast Council [2019] NSWLEC 1233
Hearing dates:	Conciliation conference on 24 April 2019
Date of orders:	31 May 2019
Decision date:	31 May 2019
Jurisdiction:	Class 1
Before:	Adam AC
Decision:	The Court orders: (1)   Leave is granted for the Applicant to rely on the amended plans and material listed in paragraph 1 of the conditions set out in Annexure A; (2) The Applicant will pay the Respondent’s costs thrown away as a result of the amendments as agreed or assessed in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979; (3)   The appeal is upheld; (4)   Development consent is granted for Development Application DA1205/2018 for the construction of 30 x two storey attached dwelling houses for State Environmental Planning Policy Seniors Living at 66 Wahroonga Road Kanwal NSW 2259, subject to the conditions set out in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning Assessment Act 1979 Land and Environment Court Act 1979 State Environment Planning Policy No 55 – Remediation of Land State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Wyong Local Environmental Plan 2013
Texts Cited:	Draft Central Coast Local Environmental Plan
Category:	Principal judgment
Parties:	Manylike Pty Ltd (Applicant) Central Coast Council (Respondent)
Representation:	Solicitors: S Kondilios, Hall and Wilcox (Applicant) M Everingham, Central Coast Council (Respondent)
File Number(s):	2018/391510
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings in Class 1 of the Court’s jurisdiction are an appeal against the deemed refusal of the Applicant’s (Manylike Pty Ltd) Development Application DA1205/2018 for the construction of 30 two storey attached dwelling houses at 66 Wahroonga Road, Kanwal (Lot 1 DP 663840), pursuant to s 8.7 of the Environmental Planning Assessment Act 1979 (EPA Act).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act1979 (LEC Act) between the parties, which was held on 24 April 2019. I presided over the conciliation conference. The conciliation conference commenced on site, and prior to entering the site a number of objectors spoke of their concerns.

3. Under s 34(3) of 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development.

4. The proposal includes the construction of dwellings, a communal swimming pool with BBQ and cabana, parking spaces and a new footpath to link the site and the adjacent bus stop at civil works.

5. The development works will take place on only a portion of the site, the remainder being natural bushland which will be managed under a Vegetation Management Plan.

6. The site is zoned RU6 Transition under Wyong Local Environmental Plan 2013. Under draft Central Coast Local Environmental Plan, the site continues to be zoned RU6 Transition.

7. On 15 December 2017, the NSW Department of Planning and Environment issued a Certificate of Site Compatibility pursuant to cl 25(4) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP) in relation to No. 66 Wahroonga Road, Kanwal. Pursuant to cl 29(a) of the SEPP, the certificate remains current for 24 months after the date of issue. Hence the certificate expires on 15 December 2019.

8. The certificate certifies that the Coordinator General of the Central Coast is

“of the opinion that the site is suitable for more intensive developments and the development for the purposes of seniors housing, of the kind proposed in the application and described in Schedule 1, is compatible with the surrounding land uses, having had regard to the criteria specified in cl 25(5)(b).”

9. Decommission of an existing septic system will be required. I am satisfied that conditions 2.11 and 2.12 requiring that a Remedial Action Plan be complied with and that an appropriately qualified contamination consultant be employed to supervise the remediation works address the requirements of cl 7 of State Environment Planning Policy No 55 – Remediation of Land.

10. I am satisfied that the Certificate of Site Compatibility is currently valid and permits the development proposal.

11. The consent is subject to a deferred commencement condition (s 4.16(3) of the EPA Act (Schedule A to Annexure A)) which requires the Applicant to provide sufficient details of the design of any sewer mains demonstrate that the design and construction of any sewer will be in accordance with the relevant code and agreement with the relevant utility authority for any out of allocation sewer alignment within the public road reserve.

12. Adequate arrangement for provision of any sewer mains are essential for the carrying out of consent and I am satisfied that the deferred commencement condition appropriately addresses the issue.

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

14. 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.

15. The Court orders:

1. Leave is granted for the Applicant to rely on the amended plans and material listed in paragraph 1 of the conditions set out in Annexure A;

2. The Applicant will pay the Respondent’s costs thrown away as a result of the amendments as agreed or assessed in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979;

3. The appeal is upheld;

4. Development consent is granted for Development Application DA1205/2018 for the construction of 30 x two storey attached dwelling houses for State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 at 66 Wahroonga Road Kanwal NSW 2259, subject to the conditions set out in Annexure A.

……………………….

Paul Adam

Acting Commissioner of the Court

Annexure A 

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Decision last updated: 31 May 2019