MHE Property Co Pty Ltd ATF MHE Land Trust 3 v Central Coast Council

[2025] NSWLEC 1159

Land and Environment Court

New South Wales

Medium Neutral Citation:

MHE Property Co Pty Ltd ATF MHE Land Trust 3 v Central Coast Council [2025] NSWLEC 1159

Hearing dates:

Conciliation conferences on 24 June, 17 and 31 July, 17 September, 18 November, 3 and 11 December 2024

Date of orders:

18 March 2025

Decision date:

18 March 2025

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $30,000, such amount to be paid within 28 days of the date of this order.

(2) The appeal is upheld.

(3) Development consent is granted to development application No DA 911/2023 for subdivision of the land comprising Lot 5 DP 1228880, known as 45 Mulloway Road, Chain Valley Bay, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – biodiversity conservation order - orders

Legislation Cited:

Biodiversity Conservation Act 2016, ss 7.6, 8.2,8.4 Pt 8, Div 5

Coal Mine Subsidence Compensation Act 2017, s 22

Environmental Planning and Assessment Act 1979, Pt 4, ss 4.15, 4.16, 4.17, 7, Sch 1, Div 2 ss 7.11, 7.12, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

Environmental Planning and Assessment Regulation 2021, s 38

Central Coast Local Environmental Plan 2022, cll 2.2, 2.3, 2.6,4.1, 4.1G, 5.21, 5.22, 6.2, 7.1, 7.6

State Environmental Planning Policy (Housing) 2021 cl 122

Texts Cited:

Central Coast Development Control Plan 2022

Central Coast Community Engagement Plan (2023-24)

Category:

Principal judgment

Parties:

MHE Property Co Pty Ltd ATF MHE Land Trust 3 (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
J Palmer (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Pike & Verekers Lawyers (Applicant)
Central Coast Council (Respondent)

File Number(s):

2023/357817

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application No DA 911/2023 (the DA) for the subdivision of the land legally described as Lot 5 DP 1228880, known as 45 Mulloway Road, Chain Valley Bay (the site) into two lots.

2. As originally made in the DA, proposed Lot 51 had an area of 1.2ha, and proposed Lot 52 had an area of 9.4ha. DA 911/2023 did not propose any works on the site.

3. There is a separate (concurrent) development application (DA 885/2023) for the same site, seeking consent for vegetation removal, demolition of existing structures and the construction of a manufactured home estate (the MHE) including associated site works, which is also the subject of Class 1 proceedings (LEC case number 2023/00357808 refers).

4. A conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties was convened by the Court on 24 June 2024. This conciliation conference also included the LEC case matter 2023/00357808 as the matters were heard together. I presided over the s 34 conciliation conference. No submitters attended as there no submissions made on the DA.

5. The s 34 conciliation conference was adjourned to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent, and subsequently further adjourned multiple times to allow the parties time to consider and review the revised plans and to finalise the s 34 agreement and conditions of consent based on an amended development application (the amended DA).

6. The agreed amendments to the proposal result in an adjustment to the boundary line between the two proposed lots, now following a zone boundary line, such that Lot 51 is now proposed to be 1.16ha and Lot 52 is now proposed to be 9.45ha. Additionally, the amended proposal includes construction and connection of both lots to essential services – water, sewer and electricity – and ancillary vegetation clearing.

7. After the conciliation conferences, and the assessment by the Respondent of the amended plans, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

8. A signed s 34 agreement with Annexure A was filed with the Court on 21 December 2024 with amended plans and additional material (the amended DA) as agreed between the parties. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

9. Under s 34(3) of the 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

10. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act. This decision involved the Court upholding the appeal and granting development consent to the DA subject to conditions.

11. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a jurisdictional note accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Prerequisites

Owner’s Consent

12. The parties advise that landowner’s consent for the DA has been provided.

13. Ancillary aspects of the proposed development, including installation and connection of services are proposed within the road reserve of Mulloway and Chain Valley Bay Roads, as well as within the site adjoining to the west at 25 Mulloway Road, Chain Valley Bay. The Respondent, as owner of the road reserve, consents to the making of the DA. In addition, the Class 1 Application is accompanied by the consent of the owner of the adjoining lot.

Community Participation - (Sch 1, Div 2, s 7(1) of the EPA Act)

14. The parties advise that the DA was exhibited to the public from 2 June 2023 to 3 July 2023, in accordance with the provisions of the Central Coast Community Engagement Strategy (2023-2024) and s 7(1) of Div 2 in Sch 1 of the EPA Act. No submissions were received during or subsequent to the notification period.

Conditions

15. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Integrated Development

16. The parties advise that the site is identified as bushfire prone land (vegetation category 1 in the southern portion, with most of the remainder of the site vegetation buffer) and a bushfire safety authority under s100B of the Rural Fires Act 1993 is required for subdivision of the site.

17. General Terms of Approval (GTA’s) were issued by the Rural Fire Service on 19 June 2023 and are required to be complied with by condition 1.2 in the conditions of consent.

Biodiversity Conservation Act 2016

18. The parties advise that the site, other than the Avoided Land, is the subject of an order (“the Order”) conferring biodiversity certification made on 24 March 2023 pursuant to s 8.2 of the Biodiversity Conservation Act 2016 (the BC Act); and

1. Pursuant to s 8.4(2) and (3) of the BC Act, no assessment of the likely impact of the development on biodiversity on the land the subject of the Order (“the Certified Land”) is required for the purposes of Pt 4 of the EPA Act;

2. Pursuant to s 7.6 of the BC Act, Part 7 of the BC Act dealing with biodiversity assessment, does not apply to the site; and

3. The DA does not propose removal of any vegetation, and consequently does not have any biodiversity impacts, beyond the boundaries of the Certified Land.

19. The parties advise that the site is also the subject of a Biodiversity Certification Agreement (“the BC Agreement”), entered into in conjunction with the making of the Order under Div 5 of Pt 8 of the BC Act.

Coal Mine Subsidence Compensation Act 2017

20. The parties advise that the site is within a mine subsidence district for the purposes of the Coal Mine Subsidence Compensation Act 2017, and approval for subdivision of the site, or alteration or erection of improvements on the site is required pursuant to s 22 of that Act. Approval was granted on 15 May 2023, and a copy accompanied the Class 1 Application to the Court.

Central Coast Local Environmental Plan 2022

21. The Central Coast Local Environmental Plan 2022 (the LEP) is the relevant local environmental planning instrument that applies to the site; and pursuant to cll 2.2 and 2.3 of the LEP:

1. Proposed Lot 51 is zoned R2 Low Density Residential pursuant to the LEP. Proposed Lot 52 is partly zoned RE2 Private Recreation, and partly zoned C2 Environmental Conservation pursuant to the LEP. The C2 zone generally corresponds with the southern vegetated portion of the site adjoining the creek. Subdivision works are permissible with consent pursuant to cl 2.6 of the LEP;

2. The parties advise that under the MHE DA 885/2023 (refer to para [3] above), it is proposed to use the RE2 zoned portion of the site as a manufactured home estate (“MHE”), and to maintain in perpetuity the native vegetation on the C2 zone portion. The MHE use is permissible as caravan parks are permissible in the RE2 zone, and by the operation of cl 122 of State Environmental Planning Policy (Housing) 2021 (“SEPP Housing”). No change of use is proposed for the R2 zoned part of the site; and

3. I am satisfied that the proposed subdivision is consistent with the objectives for development within the zones in which the subdivision is proposed to be carried out;

(2) Clause 4.1 of the LEP sets general minimum lot size controls for the subdivision of land by reference to a Lot Size Map. Pursuant to that map, the R2 zoned portion of the site has minimum lot size of 450sqm, the RE2 portion has a minimum lot size of 7ha, and the C2 portion has a minimum lot size of 40ha. Clause 4.1G of the LEP applies to lots identified as SZ on the Key Sites Map in the LEP and provides criteria for the granting of development consent for subdivision in various zones. The parties advise that the site is so identified; and

(a)  The parties advise that cl 4.1G of the LEP was introduced after the DA was lodged, as were the specific lot sizes on the Lot Size Map in the LEP. No savings provision accompanied the introduction of the clause and maps, and so the clause and maps apply to the determination of the DA. In light of cl 4.1G and the amended mapping no request under cl 4.6 of LEP is necessary;

(b)  Proposed Lot 51 satisfies cl 4.1G(3)(b), with an area of 1.2ha against a control of 450sqm;

(c)  Proposed Lot 52 satisfies cl 4.1G(3)(a), as the RE2 portion of the Land has an area of 7.05ha, satisfying cl 4.1G(3)(a)(i) of the LEP, and the C2 portion, with an area of 2.4ha is entirely contained within Lot 52, satisfying cl 4.1G(3)(a)(ii) of the LEP;

(d)  The subdivision enables the separation of the residential portion of the site, and the establishment of the MHE (on approval of the MHE DA – refer to para [3] above); and

(e)  No residential development is proposed on the C2 land, nor can any development of that land, other than environmental conservation measures, be carried out on that land in the future, satisfying cl 4.1G(4)(b) of the LEP;

(3)  Clauses 5.21 and 5.22 of the LEP require certain flooding matters to be considered, and for the consent authority to be satisfied as to certain matters. The parties advise that the proposed development does not include any change of use of the site, and any physical work is minimal and for the introduction of essential services. There will be no change to the site as a result of the proposed development that would change flood behaviour in any way, nor create any risk to life;

(4)  The site is identified on the Urban Release Areas Map in the LEP. Clause 6.2 of the LEP prevents the grant of consent for land so identified unless essential public utility infrastructure (water, sewer and electricity) is available or adequate arrangements have been made to make the infrastructure available when necessary. The parties advise that the proposed development includes connection to water, sewer and electricity;

(5)  Clause 7.1 of the LEP relates to acid sulfate soils. The parties advise that a portion of the site is mapped as Class 5 Acid Sulfate Soils; and

(a)  The parties advise that there is Class 1 and Class 2 mapped land within 500m of the site, which may be below 5m AHD, however the parties agree that the proposed work is not likely to reduce the watertable on that land. Accordingly cl 7.1 of LEP does not apply;

(6)  Clause 7.6 of the LEP prevents the grant of consent unless services essential for the development are in place, or arrangements have been made to make them available when required. The parties advise that the proposed development includes connection to water, sewer and electricity. Vehicular access to both Lot 51 and Lot 52 will be maintained. There are also sufficient stormwater and waste management arrangements in place for existing development on the site (and no new buildings or change of use proposed as part of this DA).

Central Coast Development Control Plan 2022

22. The parties advise that they have considered all relevant matters in the Central Coast Development Control Plan 2022 (the DCP), as required by s 4.15(1)(a)(iii) of the EPA Act and agree that the proposed development adequately responds.

Conclusion

23. Having considered the advice of the parties provided above at [12] - [22], I am satisfied that:

1. The applicants’ further amended DA can be approved, having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

2. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

3. Approval of the proposed development is in the public interest.

24. Further, 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.

25. 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.

26. 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.

Notes

27. The Court notes that:

1. Central Coast Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application No DA911/2023 made on 20 December 2024 to rely on the plans and documents specified below:

1. Existing Lot and Concept Subdivision Plan prepared by Everitt & Everitt Consulting Surveyors (ref: 18898)

Drawing	Description	Issue	Date
1 & 2 of 2	Existing Lot and Concept Subdivision Plan	1	30/01/2024

2. Civil Engineering Package – Subdivision prepared by Northrop (ref: NL212903)

Drawing	Description	Issue	Date
SP3-C01.01	Cover Sheet, Drawing List and Locality Plan	A	29.07.2024
SP3-C02.01	General Arrangement Plan	A	29.07.2024
SP3-C03.01	Erosion and Sediment Control Plan	A	29.07.2024

3. Other Documents

Document Title	Reference	Version No.	Prepared by	Dated
Bushfire Assessment Report	3	Bushfire Planning Australia	30 September 2024
Masterplan | Subdivision Zoning Overlay	2021-164 DD110	SDA	01/05/2024

2. That there is a separate development application (DA 885/2023) for the same site as the subject of this DA, seeking consent for vegetation removal, demolition of existing structures and the construction of a manufactured home estate (MHE) including associated site works, which is also the subject of Class 1 proceedings (LEC case number 2023/00357808 refers).

3. There is a planning agreement registered on the title of the site, entered into in conjunction with a planning proposal that resulted in the current zoning and planning controls applying to the site. The planning agreement excludes the application of s7.11 and s7.12 of the EPA Act to development on the site in accordance with the planning proposal. Instead the planning agreement requires monetary contributions to be paid prior to the issue of subdivision certificates for additional residential lots, and prior to the issue any approval to operate the MHE. As a result, there is no contribution condition in the proposed conditions of consent for the DA.

Orders

28. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $30,000, such amount to be paid within 28 days of the date of this order.

2. The appeal is upheld.

3. Development consent is granted to development application No DA 911/2023 for subdivision of the land comprising Lot 5 DP 1228880, known as 45 Mulloway Road, Chain Valley Bay, subject to the conditions at Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A

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Decision last updated: 18 March 2025