MKY Enterprises (Aust) Pty Ltd v Central Coast Council

Case •

[2025] NSWLEC 1123

•

05 March 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: MKY Enterprises (Aust) Pty Ltd v Central Coast Council [2025] NSWLEC 1123
Hearing dates: 2 and 6 December 2024
Date of orders: 05 March 2025
Decision date: 05 March 2025
Jurisdiction:Class 1
Before: Gray C
Decision:

The Court orders that:

(1) The proposed Plan of Subdivision prepared by Brett Anthony Burns Williams dated December 2024 is to be amended so that proposed Lot 1 is enlarged to contain the land described as proposed Lot 82 in DA-005 in addition to the area presently contained within proposed Lot 1.

(2) The applicant is to prepare, file and serve the amended Plan of Subdivision referred to in order (1), by 21 March 2025.

(3) The parties are to confer and agree on the conditions of consent, revised in accordance with the Court’s rulings, by 28 March 2025 and file the revised conditions by 31 March 2025.

(4) The proceedings are listed on 4 April 2025 at 9:00am for disposal of the proceedings.

(5) Exhibits 1-6, C-F and H are returned, the remaining exhibits are retained.

Catchwords:

APPEAL – subdivision application including subdivision works – urban release area – permissibility of subdivision where minimum lot size applies – staged subdivision – each stage considered separately – acceptability of subdivision design

Legislation Cited:

Biodiversity Conservation Act 2016, ss 7.7, 7.13

Conveyancing Act 1919, ss 23G, 195

Environmental Planning and Assessment Act 1979, ss 3.43, 4.12, 4.16, 4.22, 6.2, 6.15, 7.11, 7.13, 8.7

Local Government Act 1993, s 49

Roads Act 1993, Pt 2, Div 1, ss 5, 9

Rural Fires Act 1997, s 100B

Biodiversity Conservation Regulation 2017, cl 7.2

Central Coast Local Environmental Plan 2022, cll 2.3, 2.6, 4.1, 4.1G, 4.2D, 4.6, 6.1, 6.2, 7.6

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4, Pt 4.2, s 4.9

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, s 2.75

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Cases Cited:

Camden Council v Cranney [2018] NSWLEC 127

Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77

Johnson v Coffs Harbour City Council [2018] NSWLEC 1094

Rich v Lennox Palms Estate and Anor [2009] NSWLEC 167

Texts Cited:

Central Coast Council’s Civil Works Specification Design Guideline 2020

Central Coast Development Control Plan 2022

NSW Rural Fire Service, Planning for Bushfire Protection 2019

Warnervale District Contributions Plan 2021

Category:Principal judgment
Parties: MKY Enterprises (Aust) Pty Ltd (Applicant)
Central Coast Council (Respondent)
Representation:

Counsel:
P Tomasetti SC and M Fozzard (Applicant)
T To (Respondent)

Solicitors:
Sydney Law Practice Pty Ltd (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s): 2023/196863
Publication restriction: No

Judgment

  1. COMMISSIONER: The Wadalba South Urban Release Area, on the Central Coast, is an area earmarked for urban expansion for the provision of housing. Within that area, MKY Enterprises (Aust) Pty Ltd (MKY) seeks development consent for the subdivision of land at 193 and 213 Pollock Avenue, and 30 Jensen Road, Wadalba. MKY lodged a development application seeking the same with Central Coast Council (the Council) on 22 March 2023. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged this appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

  2. The development application has been amended on a number of occasions, and, at the hearing, the Council approved a further amendment of the development application, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021. The proposed development that is now before the Court is for the subdivision of land to create 81 residential lots, two retained environmental lots and one residue lot.

  3. The Council remains opposed to the grant of development consent. Although the number of issues raised concerning the proposed development have narrowed in the course of the appeal proceedings, it contends that, whilst the site is appropriate for residential subdivision, there are a number of issues that warrant refusal of the development application in its current form.

  4. For the reasons that are set out below, I find that, subject to a change in the first plan of subdivision so that the environmental lots become a single lot, the proposed subdivision is permissible. I also consider that none of the matters raised by the Council concerning subdivision design warrant refusal of the development application. Accordingly, I make directions, set out below, for amendments to the first plan of subdivision and for the conditions to be amended.

The site and the locality

  1. The site is comprised principally of two lots, legally described as Lot 382 DP 618817 (Lot 382) and Lot 1 DP 213381 (Lot 1), known respectively as 213 Pollock Avenue Wyong and 30 Jenson Road, Wadalba. The site also comprises a small portion of Lot 54 DP 264634, known as 193 Pollock Avenue, Wyong. Lot 381 and Lot 1 have a combined area of 11.067ha.

  2. The site is undulating, with falls of up to 43.4m to the south-west and through 213 Pollock Avenue toward the southern neighbouring property at 193 Pollock Avenue, and up to 49.5m to the south-south-west through 30 Jensen Road, toward Jensen Road. Around half the site is heavily vegetated. Figure 1 is an aerial photograph of the site, with the small portion of the site that is in Lot 54, marked separately.

  3. The locality is characterised by detached one and two storey dwellings, large lot residential and grazing land uses. The site forms part of the Wadalba South Urban Release Area, and is therefore intended for residential subdivision.

The proposed development

  1. The proposed development will result in 81 residential lots, ranging in size from 450m2 to 732m2. The subdivision works include the regrading of each site to a maximum grade of 10%, with retaining walls between each site as required. This allows there to be a building pad on each site that is capable of accommodating a dwelling without further earthworks.

  2. In addition to the residential lots, two environmental lots are proposed that will be subject to a proposed Biodiversity Management Plan dated October 2024 (BMP). The BMP schedules the weed management and revegetation measures necessary to enhance the retained vegetation on the two environmental lots, and sets successive stages of regeneration over a 5-year duration.

  3. The civil works sought to be carried out are proposed to be undertaken in four stages, and the subdivision of the land over 7 stages. The staging plan for the subdivision is at Figure 2.

  1. Prior to the subdivision process commencing, MKY proposes to register a plan of subdivision that consolidates Lot 382 and Lot 1, and re-subdivide that area into two lots along the line of the zone boundary between land zoned R2 Low Density Residential and land zoned C2 Environmental Conservation, so that each parcel of the subdivided land is separately zoned.

  2. The proposed development also includes an offer, dated 17 October 2024, to enter into a Voluntary Planning Agreement for the dedication to the Council of the land the subject of the BMP (the VPA offer).

The planning framework

  1. The site is partly zoned C2 Environmental Conservation, and partly zoned R2 Low Density Residential, pursuant to the Central Coast Local Environmental Plan 2022 (CCLEP). The overlay of the proposed development on the zoning map is shown at Figure 3.

  2. Clause 2.3 of the CCLEP requires that, in considering a development application, the consent authority must consider the objectives of the zone. The objectives of the C2 zone are:

• To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.

• To prevent development that could destroy, damage or otherwise have an adverse effect on those values.

  1. The objectives of the R2 zone are:

• To provide for the housing needs of the community within a low density residential environment.

• 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.

  1. Pursuant to the zoning table for each zone, both roads and environmental protection works are permissible in each zone. Clause 2.6 of the CCLEP permits the subdivision of land, with development consent.

  2. Clause 4.1 imposes minimum subdivision lot sizes, and provides the following:

(2)  This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

(3)  The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

  1. The Lot Size Map imposes two different minimum lot sizes across the site, with the boundary on the Lot Size Map aligning with the zone boundary. Accordingly, the area of the site that is zoned C2 is co-incident with the area that has a minimum lot size of 40ha, and the area of the site that is zoned R2 is co-incident with the area that has a minimum lot size of 450m2.

  2. Part 2 of the Central Coast Development Control Plan 2022 (CCDCP) contains development controls, with Chapter 2.4 setting out controls for subdivision. They are considered further below.

  3. In addition, Part 5 of the CCDCP sets out local specific development controls, and Chapter 5.9 concerns the Wadalba South Urban Release Area. The indicative staging plan is shown at Figure 4, with the site located in Stage 3B.

  1. Section 5.9.2.2 of Chapter 5.9 requires that “any application for the subdivision of the land must be accompanied by a Masterplan for each stage.”

Notification and objector evidence

  1. The development application was publicly notified between 28 April 2023 and 26 May 2023, and one submission was received. The issues raised in the submission concern the management of the C2 zoned land, and the retention of habitat and biodiversity.

The expert evidence

Town planning evidence

  1. Expert evidence on the town planning issues was given by Ms Stephanie Van Dissel, a town planner engaged by MKY, and Ms Clare Brown, a town planner engaged by the Council. Their final joint report was filed on 29 November 2024, and they also gave oral evidence at the hearing.

  2. Ms Van Dissel and Ms Brown agree that the indicative masterplan provided demonstrates that a legible and orderly development can occur in accordance with Section 5.9.2.2 of the CCDCP, and is supported by additional detail showing a 400m radius to open space and bus stops. They agree that the masterplan includes the detail of the sewer, water and stormwater infrastructure, and that out of sequence development can occur in the Urban Release Area in circumstances where the CCDCP requirements are met and the requisite services are available.

  3. However, Ms Van Dissel and Ms Brown disagree as to whether the buffer area for the Urban Interface Area (UIA) should be located outside of the lots that are intended to be managed under the BMP. They also disagree on the acceptability of the subdivision layout. Ms Brown considers that a number of the corner lots are undersized, and the height of the proposed retaining walls are unacceptable. On the other hand, Ms Van Dissel considers that all of the lots are capable of accommodating a dwelling with acceptable amenity. Their evidence is considered in more detail below.

Service engineering

  1. Expert opinion evidence on the service engineering issues was given by Mr Cameron Black, a civil engineer engaged by MKY, and Mr Luke Drury, a civil engineer employed by the Council, in a joint report filed on 26 November 2024.

  2. Mr Black and Mr Drury agree on a temporary sewer option that would be acceptable, which now forms part of the proposed development. They agree that satisfactory arrangements can be made for all services, and that the temporary sewer option agreed upon (Ex 4, Appendix B) is a reasonable and agreeable temporary solution should the development proceed prior to the construction of regional assets.

Earthworks and site disturbance

  1. Expert opinion evidence on the proposed earthworks was given by Mr Nathan Delaney, a civil engineer engaged by MKY, and by Ms Brown, in a joint report filed on 25 November 2024. Mr Delaney and Ms Brown agree that the earthworks design complies with the engineering standards of Central Coast Council’s Civil Works Specification Design Guideline 2020, and that further detailed geotechnical and contamination investigation would not alter the engineering design.

  2. They also agree that the Construction Environmental Management Plan (CEMP) sets out the preliminary methodology for site management requirements, including site stabilisation, and that detailed CEMPs can be prepared for each stage of work, and should be required as a condition of consent.

Ecology

  1. Expert opinion evidence on the ecological impact of the construction of services was given by Mr Ian Benson, an ecologist engaged by MKY, and Dr Chris McLean, an ecologist engaged by the Council, in a joint expert report filed on 26 November 2024, which was prepared also with Mr Black and Mr Drury.

  2. Mr Benson and Dr McLean agree that, having regard to the field surveys, vegetation mapping and the proposed sewer and water connections, there is no adverse impact on biodiversity.

Traffic

  1. Expert opinion evidence on the traffic engineering issues was given by Mr Jeff Garry, a traffic engineer engaged by MKY, and Mr Paul Corbett, a traffic engineer engaged by the Council, in a joint report filed on 29 November 2024. Mr Garry and Mr Corbett agree that the proposed road network is sufficient to provide suitable vehicular access to lots within the subdivision, and that the Road Safety Audit Report dated November 2024 is acceptable. They also agree that compliant temporary turning heads have been provided to comply with the NSW Rural Fire Service, Planning for Bushfire Protection 2019 (PBP 2019).

Bushfire

  1. Expert evidence on whether the proposed development complies with the PBP 2019 was given by Mr Stuart Greville, an accredited bushfire practitioner engaged by MKY.

  2. Mr Greville’s evidence is that proposed development complies with the PBP 2019. This evidence is uncontested, and is supported by the grant of a Bush Fire Safety Authority dated 3 December 2024, with general terms of approval, by the NSW Rural Fire Service, pursuant to s100B of the Rural Fires Act 1997.

The contentions that are now resolved

  1. As a result of the expert evidence, a number of the contentions raised in the Further Amended Statement of Facts and Contentions filed on 12 November 2024 are now resolved, as follows.

Concurrence of the Planning Secretary (contention 3)

  1. The Council raised a contention concerning the repealed cl 6.1 of the CCLEP, which continues to apply pursuant to s 4 of the State Environmental Planning Policy Amendment (Housing and Productivity Contributions) 2023.

  2. Clause 6.1, as in force at the time the development application was lodged, applies to the site by virtue of cl 6.1(1)(a)(iv). This is because, at the same time that the site became part of an urban release area, part of the site became subject to a minimum lot size of 450m2. Prior to this, the minimum lot size of 40ha applied to the whole of the site.

  3. Consistent with this clause, on 29 November 2024 the Director of State Infrastructure, as delegate for the Secretary of the Department of Planning, Housing and Infrastructure, issued a certificate that certifies that satisfactory arrangements have been made to contribute to the provision of designated state public infrastructure. Accordingly, the parties agree, and I accept, that cl 6.1(2) is satisfied.

Public utility infrastructure (contention 4) and essential services (contention 5)

  1. The Council raised a contention that cl 6.2 of the CCLEP prevents the grant of consent, in circumstances where the consent authority is not satisfied that public utility infrastructure is available, or adequate arrangements have been made to make it available when required. Clause 6.2 provides:

6.2 Public utility infrastructure

(1) Development consent must not be granted for development on land in an urban release area unless the consent authority is satisfied that—

(a) public utility infrastructure that is essential for the proposed development is available, or

(b) adequate arrangements have been made to make that infrastructure available when it is required.

(2) This clause does not apply to development for the purpose of providing, extending, augmenting, maintaining or repairing public utility infrastructure.

(3) In this clause—

public utility infrastructure, in relation to an urban release area, includes infrastructure for the following—

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage.

  1. Clause 7.6 similarly requires services to be either available or that adequate arrangements have been made to make them available when required. The Council raised a separate contention in relation to the satisfaction of this clause. Clause 7.6 provides:

7.6 Essential services

Development consent must not be granted to development unless the consent authority is satisfied that all of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required—

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) stormwater drainage or on-site conservation,

(e) suitable vehicular access,

(f) the collection and management of waste.

  1. However, as set out above, the Council now agrees that this infrastructure is available or will be available when required. The evidence of Mr Black and Mr Drury is that all these services are currently available, other than sewerage services. They agree that the temporary sewer option that now forms part of the development application will ensure that the disposal and management of sewage will be available when required, if the development proceeds before the construction of the regional assets. Mr Drury’s evidence is also that the Council will undertake electrical and mechanical upgrades to the applicable pump station to ensure additional interim capacity is provided which will manage the Council risk of overflows in the catchment.

  2. For those reasons, I accept that the requirements of both cl 6.2 and 7.6 are satisfied. This is also supported by the Secretary’s certificate of satisfactory arrangements issued on 29 November 2024.

Orderly development (contention 6)

  1. The Council also raised a contention that the proposed development does not provide for the orderly development of the land, due to it being out of sequence with what is intended for the Wadalba South Urban Release Area.

  2. However, the Council now agrees that the master plan, subdivision plan and engineering plans have all been updated to demonstrate the matters required by the CCDCP. These plans show that the proposed development has access to open space and bus stops within a 400m radius, that there is pedestrian access to existing bus routes, and that the road network is adequate. The town planning experts agree that collector roads will be upgraded and public open space will be formalised through the contributions from this and other developers. Ms Brown agrees that out of sequence development can occur if the provisions of the CCDCP are met. On this basis, I accept the agreed position of the parties that contention 6 is resolved.

Road and traffic design (contention 8)

  1. The Council also raised a contention that the proposed development did not provide a road design that is safe and appropriate. However, contrary to this contention, the agreed evidence of Mr Garry and Mr Corbett is that the proposed road network is sufficient to provide suitable vehicular access to lots within the subdivision. Accordingly, I accept the parties’ agreed position that this contention is now resolved and no longer remains an issue.

Bushfire (contention 12)

  1. The Council raised a contention concerning a lack of information based on a certificate issued under s 100B of the Rural Fires Act 1997, which it considered to be obsolete. However, a new certificate has now issued, and the uncontested evidence of Mr Greville is that the proposed development complies with the PBP 2019. As such, I agree with the parties’ position that this contention is no longer in issue.

Permissibility of the subdivision (contention 2)

  1. The Council contends that the proposed development is prohibited, as it is contrary to the minimum subdivision lot size development standard that applies to that part of the site that is also zoned C2 Environmental Conservation. The C2 zoned land will be retained as one allotment, Lot 83, which has a total area of 21,639m2, which is below the minimum lot size of 40ha that applies to the same area, required by cl 4.1 of the CCLEP. MKY has not provided a request pursuant to cl 4.6 of the CCLEP, and, in any event, the Council says that cl 4.6(6) precludes the use of cl 4.6 to grant consent to a development that contravenes cl 4.1 in the C2 zone.

  2. As set out above, cl 4.1 states that the “size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.” Clause 4.1 therefore only applies where there is a subdivision of land. The “subdivision of land” is a term defined by the EPA Act, in s 6.2, as follows:

6.2 Meaning of “subdivision” of land (cf previous s 4B)

(1) For the purposes of this Act, subdivision of land means the division of land into 2 or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition. The division may (but need not) be effected—

(a) by conveyance, transfer or partition, or

(b) by any agreement, dealing, plan or instrument rendering different parts of the land available for separate occupation, use or disposition.

(2) Without limiting subsection (1), subdivision of land includes the procuring of the registration in the office of the Registrar-General of—

(a) a plan of subdivision within the meaning of section 195 of the Conveyancing Act 1919, or

(b) a strata plan or a strata plan of subdivision within the meaning of the Strata Schemes Development Act 2015.

(3) However, subdivision of land does not include—

(a) a lease (of any duration) of a building or part of a building, or

(b) the opening of a public road, or the dedication of land as a public road, by the Crown, a statutory body representing the Crown or a council, or

(c) the acquisition of land, by agreement or compulsory process, under a provision of an Act (including a Commonwealth Act) that authorises the acquisition of land by compulsory process, or

(d) a division of land effected by means of a transaction referred to in section 23G of the Conveyancing Act 1919, or

(e) the procuring of the registration in the office of the Registrar-General of—

(i) a plan of consolidation, a plan of identification or a miscellaneous plan within the meaning of section 195 of the Conveyancing Act 1919, or

(ii) a strata plan of consolidation or a building alteration plan within the meaning of the Strata Schemes Development Act 2015.

The applicant submits that the subdivision is permissible

  1. MKY’s primary position is that the division of the land to which the minimum lot size of 40ha applies is not a subdivision of that land at all, such that cl 4.1 does not apply.

  2. MKY submits that there is no relevant division of the land into two or more parts, that would meet the definition of subdivision as set out in s 6.2 of the EPA Act. MKY points out that the boundaries that are proposed run along the boundary between the C2 and the R2 land, such that there is no division of the land that is subject to the 40ha minimum lot size. In support of this point, MKY relies on Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 (Goldcoral), in which Preston CJ of LEC found that the proposed subdivision did not involve the division of the land mapped as coastal wetlands, as there was no division of that land into two or more parts, and the boundary of the proposed subdivision ran along the outer edge of the line on the Coastal Wetlands and Littoral Rainforest Area Map.

  3. MKY says that the fact that a road will be constructed on part of the C2 land and dedicated to the Council does not cause there to be a subdivision of the land, as the dedication of the road is not a subdivision of land, pursuant to s 6.2 of the EPA Act.

  4. In the alternative, MKY relies on cl 4.1G of the CCLEP, s 2.75 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP ECDC), and/or cl 4.2D of the CCLEP.

  5. Clause 4.1G of the CCLEP contains a specific exemption to cl 4.1 for environmental purposes, which applies in circumstances where all of the C2 land is to be contained in one of the resulting lots, and all other resulting lots will contain land that complies with the minimum lot size in cl 4.1. Clause 4.1G provides:

4.1G Exceptions to minimum subdivision lot sizes for environmental purposes

(1) The objectives of this clause are as follows—

(a) to provide for the subdivision of lots that are within more than one zone but cannot be subdivided under clause 4.1,

(b) to ensure the subdivision occurs in a way that facilitates the protection of the environmental values of the land.

(2) This clause applies to each lot (an original lot) identified as “SZ” on the Key Sites Map.

(3) Development consent may be granted to subdivide an original lot to create other lots (the resulting lots) if—

(a) one of the resulting lots will contain—

(i) land that has an area that is not less than the minimum lot size shown on the Lot Size Map in relation to that land, and

(ii) all the land in Zone C2 Environmental Conservation or Zone C3 Environmental Management that was in the original lot, and

(b) all other resulting lots will contain land that has an area not less than the minimum lot size shown on the Lot Size Map in relation to the land.

(4) Development consent must not be granted for a subdivision under this clause unless the consent authority is satisfied that—

(a) the subdivision will facilitate the management and protection of the environmental values of the land, and

(b) land in the following zones will not be used for the purposes of residential accommodation—

(i) C2 Environmental Conservation,

(ii) C3 Environmental Management.

  1. Section 2.75 of the SEPP ECDC provides that certain subdivisions are development specified as exempt development. That includes subdivisions that excise from a lot land that is intended to be used for public purposes. Section 2.75 provides:

2.75 Specified development

The subdivision of land, for the purpose only of any one or more of the following, is development specified for this code—

(a) widening a public road,

(b) a realignment of boundaries—

(i) that is not carried out in relation to land on which a heritage item or draft heritage item is situated, and

(ii) that will not create additional lots or increase the number of lots with a dwelling entitlement or increase the opportunity for additional dwellings, and

(iii) that will not result in any lot that is smaller than the minimum size specified in an environmental planning instrument in relation to the land concerned (other than a lot that was already smaller than that minimum size), and

(iv) that will not adversely affect the provision of existing services on a lot, and

(v) that will not result in any increased fire risk to existing buildings, and

(vi) if located in Zone RU1, RU2, RU3, RU4, RU6, C1, C2, C3 or C4—that will not result in more than a minor change in the area of any lot, and

(vii) if located in any other zone—that will not result in a change in the area of any lot by more than 10%,

(c) (Repealed)

(d) rectifying an encroachment on a lot,

(e) creating a public reserve,

(f) excising from a lot land that is, or is intended to be, used for public purposes, including drainage purposes, rural fire brigade or other emergency service purposes or public toilets.

  1. Clause 4.2D of the CCLEP concerns subdivision by a boundary adjustment, and MKY says that the initial subdivision of the land into two lots – one that contains the C2 land, and the other that contains the R2 land, could be considered a boundary adjustment as it is an adjustment of the boundary that currently separates Lot 1 and Lot 382. Clause 4.2D of the CCLEP provides:

4.2D Boundary adjustments in certain rural and conservation zones

(1) The objective of this clause is to facilitate boundary adjustments between lots where 1 or more resulting lots do not meet the minimum lot size but the objectives of the relevant zone can be achieved.

(2) This clause applies to land in the following zones—

(a) Zone RU1 Primary Production,

(b) Zone RU2 Rural Landscape,

(c) Zone C2 Environmental Conservation,

(d) Zone C3 Environmental Management,

(e) Zone C4 Environmental Living.

(3) Development consent may be granted to the subdivision of land to which this clause applies for the purposes of a boundary adjustment between adjoining lots even if 1 or more resulting lots do not meet the minimum lot size shown on the Lot Size Map.

(4) Development consent must not be granted unless the consent authority is satisfied—

(a) the subdivision will not create additional lots or the opportunity for additional dwellings, and

(b) the number of dwellings on each lot after the subdivision will remain the same as before the subdivision, and

(c) the subdivision will not increase the potential for land use conflict, and

(d) if the land is in Zone RU1 Primary Production or Zone RU2 Rural Landscape—the subdivision will not have a significant adverse effect on the agricultural viability of the land, and

(e) if the land is in Zone C2 Environmental Conservation, Zone C3 Environmental Management or Zone C4 Environmental Living—the subdivision will result in the continued protection and long term maintenance of the land.

(5) In deciding whether to grant development consent, the consent authority must also consider whether—

(a) the subdivision is likely to be incompatible with the dominant land uses in the surrounding areas, and

(b) the subdivision is likely to have a significant adverse effect on the dominant land uses in the surrounding areas.

(6) This clause does not apply—

(a) in relation to the subdivision of individual lots within a strata plan or community scheme, or

(b) if the subdivision would create a lot that could itself be subdivided in accordance with clause 4.1.

The Council’s submissions in reply

  1. The Council maintains its position that there is no power to grant consent to the subdivision, as it is contrary to the minimum subdivision lot size in cl 4.1 of the CCLEP.

  2. It submits that the decision in Goldcoral can be readily distinguished from the present application, as Goldcoral was concerned with whether there was development “on the land” that was mapped as coastal wetlands in order to determine whether it was designated development. As that area was not the subject of any works, and was not being subdivided, the Court found there was no development “on the land”. The Council submits that the present application is quite distinct, as there are environmental restoration works proposed on the C2 land and there is subdivision of the C2 land. The Council submits that MKY wrongly focuses on whether there is a division of the C2 land, but points out that this is not the relevant question.

  3. The Council also submits that the exception created by cl 4.1G does not apply in circumstances where the resulting lot, Lot 83, does not satisfy cl 4.1G(3)(a)(ii) as it does not contain all of the C2 zoned land. This is because part of the C2 land will be outside of Lot 83 and forms part of the public road.

  4. The Council further submits that s 2.75(f) of the SEPP ECDC is not satisfied because there is no use for public purposes. It says that the dedication of land for conservation is not a public purpose, and that, in circumstances where there is no certainty that the Council will accept the VPA offer, it is unclear whether Lot 83 will come into public ownership.

  5. Finally, in relation to the reliance on a boundary adjustment, the Council submits that the creation of lots, by first creating Lot 1 by the initial subdivision, and then Lots 82 and 83, is not a boundary adjustment as there is no adjustment to a boundary at all, and instead existing lots are being subdivided in sequence.

The proposed development is permissible

  1. Section 4.12(2) of the EPA Act allows a single development application to be made in respect to one or more types of development, and s 4.16(1) allows development consent to be granted to such an application. Whilst development consent can be granted only for development that requires consent, a development application that includes elements for which development consent is not required is nonetheless a valid application, and a development consent given to such an application will be valid insofar as it relates to the elements that require consent. As stated by Robson J in Camden Council v Cranney [2018] NSWLEC 127 at [69]:

“a development application which includes elements for which development consent is required as well as elements for which development consent is not required is a valid application (in relation to those elements which require consent) which gives rise to the jurisdiction of the Court to hear an appeal based on its refusal and further that a development consent given to such an application will be valid to the extent it relates to the elements which require consent.”

  1. The implementation of a development consent can be in stages, without there being a need for a concept development consent under the EPA Act (see Rich v Lennox Palms Estate and Anor [2009] NSWLEC 167 at [20], where that point is made concerning the introduction of staged development in s 83B of the EPA Act, which has now been replaced by concept development in s 4.22). In addition, s 6.15(3) of the EPA Act makes it clear that a subdivision certificate can be issued for part of the land the subject of a development consent, as long as the requirements of s 6.15(2) have been complied with in relation to that part of the land.

  2. The proposed development divides elements of the development into stages. Those stages are shown on the staging plans, and they are also set out in the agreed conditions of consent.

  3. Having regard to the manner in which the proposed development is staged, through the staging plans and the conditions of development consent, it is clear that each subdivision that is proposed can be compliant with the CCLEP.

The first subdivision

  1. The first subdivision to take place is that which is contained in the plan of subdivision prepared by Brett Anthony Burns Williams dated December 2024, which seeks the consolidation of Lot 382 and Lot 1, and the simultaneous redivision along new boundaries to create a new Lot 1 (2.213ha) and Lot 2 (8.855ha).

  2. Contrary to the position advanced by MKY, and distinguishing this subdivision from the facts in Goldcoral, this first subdivision includes the subdivision of the land to which the 40ha minimum lot size applies. This is simply because the current boundary between Lot 382 and Lot 1 bisects the land to which the minimum 40ha lot size applies, and the first subdivision seeks the consolidation of those existing lots and their simultaneous redivision along new boundaries. Such a subdivision is consistent with the definition of a plan of subdivision in s 195 of the Conveyancing Act 1919, and therefore falls within the specific inclusion in the definition of subdivision of land in s 6.2(2)(a) of the EPA Act.

  3. I accept the position of the Council that this is not a subdivision that is a boundary adjustment that complies with cl 4.2D of the CCLEP, as the new boundary is so changed from the current configuration so as to not be a subdivision “by adjusting the boundary” (see Johnson v Coffs Harbour City Council [2018] NSWLEC 1094 at [42]). This is because the resulting parcels of land do not resemble the shape or characteristics of the lots that exist at present, which are each largely rectangular with road frontage and split zoning.

  4. This first subdivision also does not presently comply with the requirements of cl 4.1G of the CCLEP, but for a different reason than that which is advanced by the Council. The triangular section that is referred to by the Council in its submissions, and relied upon by the Council as a non-compliance with cl 4.1G, is that which will be dedicated as a public road and does not form part of this first subdivision. I deal with that dedication further below.

  5. Clause 4.1G applies to “each lot (an original lot) identified as “SZ” on the Key Sites Map”. Both Lot 382 and Lot 1 are identified as “SZ”, and in my view, can be together considered an ‘original lot’ for the purpose of cl 4.1G. Nothing to the contrary was put to the Court by the Council on that point. That original lot can be subdivided “to create other lots” if cl 4.1G(3) is complied with. Clause 4.1G(3)(a) requires that one of the resulting lots contain both land that meets the description of (i), and land that meets the description of (ii). Whilst I accept that the new Lot 1 comprises all of the land in the C2 zone that was in the original lot in compliance with (ii), it does not also contain “land that has an area that is not less than the minimum lot size shown on the Lot Size Map in relation to that land”, in compliance with (i). To do so, it would need to contain at least 450m2 of land from the area that has a minimum lot size of 450m2. At present, it does not do so, as it exclusively contains the land in the C2 zone, which is co-incident with the area with a minimum subdivision lot size of 40ha.

  6. Curiously, the Council has proposed a condition (condition 1.4) that rectifies this aspect of the non-compliance with cl 4.1G(3), although that was not necessarily the express intention of that condition. The proposed condition is:

“The proposed Plan of Subdivision prepared by Brett Anthony Burns Williams dated [December 2024] is to be amended so that proposed Lot 1 is to contain all of the land described as proposed Lots 82 and 83 in DA-005 being the land the subject of the Biodiversity Management Plan.”

  1. The inclusion of Lot 82 in the new Lot 1 in the first subdivision would achieve compliance with cl 4.1G(3)(a)(i), as the land in proposed Lot 82 is land with a minimum subdivision lot size of 450m2, and the area would meet the description of cl 4.1G(3)(a)(i).

  2. However, as Lot 83 does not contain all of the C2 land, the amendment described by this proposed condition would cause a non-compliance with cl 4.1G(3)(a)(ii), which does not presently exist in the first subdivision as proposed.

  3. There is no dispute that cl 4.1G(3)(b) is complied with, as the new Lot 2 complies with the minimum lot size on the Lot Size map, which is 450m2. Further, based on the BMP, I am satisfied of the matters in cl 4.1G(4).

  4. Accordingly, the first subdivision is capable of compliance with cl 4.1G, if the first plan of subdivision is amended to incorporate proposed Lot 82 in the new Lot 1. I am of the view that this ought to be done prior to the grant of development consent, in circumstances where the requirements of cl 4.1G(3) can be seen to be a jurisdictional pre-requisite to the power to grant consent for the subdivision.

  1. The appropriate direction would be for the proposed Plan of Subdivision prepared by Brett Anthony Burns Williams dated December 2024 to be amended so that proposed Lot 1 is enlarged to contain the land described as proposed Lot 82 in DA-005 in addition to the area presently contained within proposed Lot 1.

The subsequent subdivisions of land outside the 40ha lot size area

  1. The subsequent subdivisions of the land outside the land to which the minimum lot size of 40ha applies do not contravene cl 4.1. This includes the subdivisions of all stages, except for stage 3 and stage 4. This is because, other than stages 3 and 4 (dealt with below), there is no subdivision of the land in relation to which there is a minimum lot size of 40ha. There is no change to the boundaries of the new Lot 1, which comprises the land that has the minimum lot size of 40ha, and there is therefore no subdivision of that land. This is consistent with the Court’s findings in Goldcoral. Accordingly, there is no breach of cl 4.1(3), because the “subdivision of land” is only a subdivision of the land to which the minimum lot size of 450m2 applies, and the resulting lots each comply with the minimum lot size of 450m2.

Dedication of part of the C2 land as a public road (stage 3)

  1. The next subdivision of the land to which the minimum lot size of 40ha applies is that which dedicates part of the land as a public road, which is proposed as part of stage 3. Stage 3 includes 18 residential lots and the construction of all of roads 2, 3 and 4. Part of Road No.3 is within the new Lot 1 created by the first subdivision described above. It is intended, by agreed condition 5.5, that stage 3 will be the subject of a separate subdivision certificate. Condition 5.39(b) requires the dedication of Roads No.2 to 8 as public roads.

  2. To dedicate that part of the new Lot 1 that will be part of Road No.3, a plan of subdivision will be required that dedicates that part as a public road. Stage 3 does not contain any other subdivision of the land to which the minimum lot size of 40ha applies.

  3. The opening of a public road occurs pursuant to Part 2 Div 1 of the Roads Act 1993. Pursuant to s 9, a public road is created by the registration of a plan of subdivision that bears a statement of intention to dedicate. It provides:

(1) A person may open a public road by causing a plan of subdivision or other plan that bears a statement of intention to dedicate specified land as a public road (including a temporary public road) to be registered in the office of the Registrar-General.

(2) On registration of the plan, the land is dedicated as a public road.

  1. As set out above, MKY submits that dedication of part of the lot as a public road is not subdivision as defined in s 6.2 of the EPA Act. Presumably this is based on the specific exception in s 6.2(3)(b). No submission to the contrary was put to the Court by the Council. The exception specifies that the subdivision of land does not include “the opening of a public road, or the dedication of land as a public road, by the Crown, a statutory body representing the Crown or a council”.

  2. Even if s 6.2(3)(b) does not apply to the dedication of part of the new Lot 1 as a public road in this particular instance, and such dedication does fall within the definition of subdivision, the excision of part of a lot for public purposes is exempt development, pursuant to cl 2.75(f) of the SEPP ECDC. Pursuant to s 5 of the Roads Act 1993, a public road is a road along which members of the public have a right of passage. For that reason, I consider that “public purposes” includes a public road. As such, the dedication of part of the new Lot 1 as a public road, is a subdivision for the purpose for “excising from a lot land that is, or intended to be, used for public purposes”, consistent with cl 2.75(f).

  3. This point was not the subject of any debate between the parties. Instead, the debate between the parties concerned whether the environmental protection of the land under the BMP was “public purposes” and whether that was the purpose of the subdivision so as to satisfy cl 2.75(f). However, the purpose to which the residue of the lot will be put is not relevant to the satisfaction of cl 2.75(f). It is sufficient, to meet the requirement of cl 2.75(f), that there is a lot, from which land is excised, and the land that is excised is, or is intended to be, used for public purposes. That is met simply by the excision of the land for the public road.

  4. Accordingly, the dedication of part of the new Lot 1 as a public road is not subject to the minimum lot size in cl 4.1 of the CCLEP, as it is either does not fall within the definition of ‘subdivision’ in the EPA Act, or it is exempt development pursuant to the SEPP ECDC. In stage 3, there is no other subdivision of the land to which a minimum subdivision lot size of 40ha applies.

  5. The other subdivision that is proposed in stage 3 is to land to which the minimum lot size of 450m2 applies. Accordingly, with respect to stage 3, there is no breach of cl 4.1(3), because the subdivision of the new Lot 1 by the dedication of part of it as a public road is exempt development, and the “subdivision of land” for the remainder of stage 3 is a subdivision of the land to which the minimum lot size of 450m2 applies.

Subdivision of the new Lot 1 (less the public road) into two environmental lots (stage 4)

  1. Stage 4 involves the subdivision of land to create 13 residential lots and 2 environmental lots. This stage therefore involves the subdivision of both new Lot 2, to create the residential lots, and the new Lot 1, to create the two environmental lots. One of the environmental lots is the area zoned C2, in Lot 83. The other environmental lot is the area zoned R2, and is split across two parts in a lot identified as Lot 82.

  2. However, the Council seeks that the two environmental lots, Lot 82 and 83, remain as one lot. This is clear from the preamble in proposed condition 1.6, which states that the staging is to be “modified by the above conditions in accordance with the approved plans”. One of “the above conditions” includes condition 1.4, requiring that the first subdivision combine Lots 82 and 83 into new Lot 1. For the reasons expressed above, this is best dealt with by way of an amended plan of subdivision expressed differently to condition 1.4 (see above at [70]-[74]), but nonetheless, the intention is that there would be one environmental lot.

  3. If there is no subdivision of the new Lot 1 (less the area dedicated as public road) into two environmental lots, there is no subdivision of the land to which the minimum lot size of 40ha applies. The boundaries of the environmental lot created by the first subdivision, which becomes a residue lot following the dedication of the public road, would not be altered in any way that would fall within the definition of subdivision. Even if there is a transaction that takes place with respect to that land, it would fall within the exception to the subdivision of land in s 6.2(3)(d) which stipulates that the subdivision of land does not include a division of land effected by means of a transaction referred to in s 23G of the Conveyancing Act. One such transaction, at s 23G(l)(iii), is one that relates to “the whole of the residue of an existing lot, where part of the lot… has been dedicated as a public road”.

  4. In stage 4, the single environmental lot which comprises the new Lot 1 (less the public road) does not contravene cl 4.1, as there is no subdivision of the land within the meaning of that term pursuant to s 6.2 of the EPA Act. The subdivision of the other land (contained in new Lot 2) into residential lots in stage 4 is not a subdivision of the land to which the minimum lot size of 40ha applies, and complies with the minimum lot size that applies to that land.

  5. However, in my view, condition 1.6 should be amended to make it clear that stage 4 does not include the creation of two environmental lots, given the earlier creation of the new Lot 1. In addition, condition 1.4 should be replaced and require the subdivision plans to be updated to reflect the new Lot 1. This will also be the subject of a direction, set out below.

Dedication as a public reserve

  1. The final registration of a plan that concerns the area to which a minimum lot size of 40ha applies, is the dedication of the land the subject of the BMP as a public reserve. This is the area intended as the environmental lot, shown in Lots 82 and 83 in the staging plan, or the amended future Lot 1 less the land dedicated as a public road.

  2. The dedication of this land is the subject of the VPA offer. Alternatively, the dedication of the land could be a condition of development consent requiring the registration of a plan of subdivision dedicating the land as a public reserve. As set out further below, I consider that this mechanism for the dedication of the land the subject of the BMP is appropriate in the circumstances.

  3. The dedication of this land as a public reserve is effected by the registration of a plan of subdivision on which land is marked with the words “public reserve”, pursuant to s 49 of the Local Government Act 1993.

  4. The creation of a public reserve in this manner is exempt development, pursuant to s 2.75(e) of the SEPP ECDC. Accordingly, it does not require a grant of development consent by a consent authority, and questions of compliance with cl 4.1(3) do not arise.

  5. Therefore, having regard to the staging plans and the conditions of consent for the staging of the development, and subject to the preparation of an amended plan of subdivision for the first subdivision, each subdivision of land that is to be undertaken in the proposed development is permissible, either by compliance with cl 4.1(3) or cl 4.1G of the CCLEP, or as exempt development pursuant to cl 2.75 of the SEPP ECDC.

The subdivision design

  1. There are three aspects of the subdivision design which cause the Council to contend that the proposed subdivision is unacceptable.

  2. The first aspect is that the 10m buffer for the urban interface area (UIA) is located within the environmental lot, whereas the Council says that it ought to be located outside the environmental lot, as required by clause 2.4.2.7 of the CCDCP (Contentions 1(a) and 7(b)). At requirement (g)(iii) of clause 2.4.2.7, the CCDCP requires:

“retained naturally vegetated buffer: 5-10 metres minimum width from the WSUD infrastructure to the boundary of the lot containing significant vegetation to be retained (or the natural watercourse) is to be retained as a naturally vegetated buffer zone. No vegetation removal or modification apart from bush regeneration will be permitted within this area.”

  1. The Council’s position is that, whilst the proposed buffer does assist with the management of edge effects, this would be better achieved by the buffer being outside the environmental lot, rather than within it. It submits that such an outcome would allow the full extent of the environmental lot to be fully revegetated, which is more consistent with the objectives of the UIA controls. Mr To suggested that the only way that this control could be complied with is to extend the buffer into more of the R2 zoned land. Ms Brown’s evidence is that requirement (g)(iii) of clause 2.4.2.7 should be complied with to minimise biotic and abiotic edge effects, thereby mitigating environmental impacts, but identified no actual environmental impacts of the location of the buffer zone within the environmental lot to be managed pursuant to the BMP.

  2. The second aspect of subdivision design that the Council contends is unacceptable is the size of some of the corner allotments (contention 7(c)). Corner lots numbered 31, 53, 56 and 64 have lot sizes of 550m2 to 566m2, whereas corner lots are required by Clause 2.4.3.1(d) to be of a size “at least 150m2 greater than the recommended or required minimum lot size”, which equates to 600m2. The evidence of Ms Brown is that compliance should be achieved, and would minimise the overshadowing caused by the retaining walls and fencing. Both Ms Brown and Ms Van Dissel agree that this could be achieved by conditions of consent.

  3. The third aspect of the subdivision that the Council contends is unacceptable is the extent of excavation and fill, which results in retaining walls on the boundary that are up to 2.4m on some lots. The maximum heights of boundary retaining walls that are greater than 1.5m are summarised in the table below (RWS, p.9).

  1. It is also anticipated that a standard 1.8m high fence would be on top of these retaining walls. The Council points out that Chapter 2.4 of the CCDCP contains a number of provisions to achieve a high standard of amenity in residential subdivisions. Clause 2.4.2.3 contains a requirement, at (c), for boundary retaining walls to not exceed 900mm or extend for more than 2 lots. One of the specific objectives is to minimise earthworks in order to protect the amenity of the site. Clause 2.4.3.1, at requirement (b), requires minimum lot sizes to be increased in response to environmental constraints and topography, and Clause 2.4.3.6, at requirement (b), requires that the lot design maximise solar access.

  2. The Council submits that the overshadowing implications of the large retaining walls (with fencing) are obvious and substantial. The evidence of Ms Brown is that, although the steepest parts of the site have been excluded from the residential subdivision, the retaining walls and fencing creates overshadowing that has the potential to reduce the amenity of the residential allotments. Ms Brown considers that the extent of earthworks and retaining could be reduced through an alternate subdivision layout and larger allotments sizes.

  3. The Council also points out that Ms Van Dissel agrees that overshadowing could be reduced by adjusting lot layouts and increasing lot sizes, and therefore submits that the CCDCP objectives are not met by the proposed subdivision.

The subdivision design is acceptable

  1. None of the issues raised by the Council concerning the subdivision design warrant refusal of the development application.

  2. Firstly, there is no environmental impact associated with the location of the buffer zone within the environmental lot. Contrary to the Council’s position, the buffer zone is managed and fully revegetated through the BMP. The BMP makes it clear that the buffer zone will be fenced at the urban boundary, will have logs removed, will be revegetated with “thick planting of trees, shrubs and ground layer plants from PCT 1589” (Ex B, p.554). The Council’s position is also contrary to the evidence of the ecologists, who state that there are no ecological contentions associated with the appeal.

  3. On one view, the Council’s position is arbitrary. The area proposed within the environmental lot is an area chosen by the proponent, and includes both land zoned R2 and land zoned C2. It includes land identified as residential development area in the indicative staging plan for the urban release area. The ecologists agree that there are no longer any contentions concerning ecology. MKY has chosen to put the buffer area within the environmental lot so that it is in an area managed by the BMP, which requires clearing of logs, replanting and fencing. That is an entirely acceptable outcome for the environmental management of the environmental lot.

  4. Compliance with the control at (g)(iii) of clause 2.4.2.7 could be achieved by moving the boundary of the environmental lot to a line that is 10m on the inside of the current proposed boundary, leaving the buffer zone within an expanded area of the public road. That would achieve no practical change to the outcome, although it may result in a risk that the buffer area may not be appropriately managed. However, the Council denied that this would achieve compliance, its position instead being that the area to be conserved in a specified management zone should be increased. The problem is that it advances this position without evidence and without identifying any control that would support an expansion of the management zone or that defines the line along which the management zone is required. Put simply, by so requiring, the Council creates a moving target.

  5. Secondly, I consider that the size of the corner lots is acceptable, for three reasons. The first reason is that they are each compliant with the minimum subdivision lots size in the CCLEP. Arguably, the requirement for a larger lot in a development control plan than that required by a local environmental plan, is a provision that has no effect pursuant to s 3.43(5) of the EPA Act, as it provides a minimum lot size that is incompatible with the minimum lot size in the CCLEP. In my view, whilst both are capable of being complied with, it is incompatible as it requires something more onerous than that which is required by the CCLEP.

  6. The second reason why the size of these corner lots is acceptable is that they vary from the size required by the CCDCP by less than 10%. That is, consistent with the evidence of Ms Van Dissel, they are only marginally smaller than what is required by the control.

  7. The third reason that the corner lots are acceptable is that the four lots are adequately sized to accommodate either a dwelling house or a dual occupancy. I accept the evidence of Ms Van Dissel that, in circumstances where the lot size meets the minimum lot size of 550m2 required under the CCLEP for a dual occupancy, the lot size is acceptable.

  8. Thirdly, although the height of the retaining walls is not ideal, it does not warrant refusal of the development application. The agreed evidence of Ms Brown and Ms Van Dissel is that the proposed development includes site wide lot benching and retaining, which results in retaining walls up 2.5m within the lots, but generally around 1.5m, and up to 3.5m for the perimeter road, but generally 2.5m. They agree that this results from the topography of the site.

  9. There are four reasons why I have reached the view that this lot benching, and resultant height of the retaining walls, does not warrant refusal of the development application. The first is that, based on the evidence of Ms Van Dissel, the lot benching allows each lot to achieve a maximum grade of 10%, which is consistent with what is appropriate for a lot size of 450m2 pursuant to Clause 2.4.3.2 of the CCDCP, and provides a building platform which is able to contain the most affordable style of housing. I accept her evidence that this means that that future property owners will not need to undertake individual retaining which would increase the cost of construction and lead to an uncoordinated retaining pattern across the site. This results in a more appropriate outcome for the provision of residential lots on the site than if the site was subdivided without lot benching.

  10. The second reason that this does not warrant refusal of the development application is that the resulting overshadowing does not actually breach any identified solar access controls. The controls concerning solar access are contained within requirement (b) of Clause 2.4.3.6 of the CCDCP, and the evidence of Ms Van Dissel is that this is complied with. In particular, (iv) requires that “the midpoint of each lot shall have access to a minimum of 3 hours sunshine between 9 am and 3 pm on June 21 (the winter solstice)”. The solar diagrams demonstrate that this is achieved. Accordingly, there is no substance to the Council’s submission that the proposed lots will be unacceptably impacted by overshadowing as a result of the retaining walls and fencing.

  11. The third reason that the retaining walls do not warrant refusal of the development application is that they are a result of the topography of the area. I accept the evidence of Ms Van Dissel that this is typical across subdivisions within urban release areas across the Central Coast region.

  12. The fourth reason that I consider the height of the retaining walls does not warrant refusal of the development application is that I accept the submission made by MKY that the extent of the excavation and fill is minimised. The excavation is minimised because the steepest part of the site is not part of residential subdivision and forms part of the environmental lot, notwithstanding that it is zoned for residential development. This is consistent with the objective in Clause 2.4.2.3 to “minimise earthworks in order to preserve… the existing topography, drainage and catchment areas, trees and amenity of the site”. Further, I accept the evidence of Ms Van Dissel that the coordinated benching strategy across the site ensures that an appropriate cut and fill balance is provided, reducing the need to import/export large amounts of fill and allowing the development to be “self-reliant” as much as possible in terms of earthworks.

  1. For all of those reasons, the design of the residential subdivision is appropriate and none of the matters raised by the Council warrant the refusal of the development application.

The objectives of the R2 zone

  1. The Council contends that the proposal is inconsistent with the objectives of the R2 zone, as it fails to maintain and enhance the residential amenity and character of the surrounding area, and does not seek to encourage best practice in the design of low density residential development.

  2. This contention was supported by a single particular, which identifies the lack of buffer as having the potential to impact adversely on the retained vegetation. However, as outlined above, there are measures in the BMP that require enhancement of the buffer area, to ensure that retained vegetation is maintained and enhanced, and the ecologists agree that there are no contentions concerning biodiversity.

  3. There is no other basis advanced by the Council on which it contends the proposed development is inconsistent with the objectives of the R2 zone. Having regard to my findings concerning the subdivision design and the site’s location in the Urban Release Area, as well as the reduction in lot numbers in order to protect and enhance the site’s biodiversity, I consider that the proposed development is consistent with the objectives of the R2 zone.

Development consent should be granted

  1. For the above reasons, none of the matters raised by the Council warrant refusal of the development application. Having regard to each stage of the development, and subject to the preparation of an amended plan of subdivision for the first subdivision, each subdivision proposed to be undertaken is permissible, either by compliance with the CCLEP or as exempt development pursuant to the SEPP ECDC. Further, the subdivision design is acceptable, notwithstanding the location of the buffer, the height of retaining walls and the smaller corner lots. The proposed development presents an acceptable outcome for an urban release area by providing lots capable of accommodating housing, whilst also retaining and enhancing the site’s biodiversity.

  2. In addition, the following jurisdictional matters are satisfied:

  1. 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. Based on the Preliminary and Detailed Contamination Assessment dated 4 November 2022, the site can be made suitable for the development, subject to recommendations concerning the removal of waste material, the conduct of a hazardous materials survey, and the preparation of a remedial action plan and an unexpected finds protocol. These recommendations have been incorporated in the agreed conditions of consent.

  2. The proposed development includes the clearing of vegetation to an extent that triggers cl 7.2 of the Biodiversity Conservation Regulation 2017 (BC Regulation) and a biodiversity development assessment report (BDAR) is therefore required pursuant to the Biodiversity Conservation Act 2016 (the BC Act). Consistent with s 7.7 of the BC Act, the development application includes the BDAR dated 23 October 2024. Pursuant to s 7.13 of the BC Act, I have considered the likely impact of the proposed development on biodiversity values as assessed in the BDAR. The parties agree, and I am satisfied, that the applicable provisions of the BC Act and the BC Regulation have been satisfied, and that the agreed conditions of consent will meet the requirements of s 7.13(3) of the BC Act.

  3. Chapter 4 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), which concerns koala habitat protection, applies to the site. This is dealt with in the BDAR (Ex B, p.471), and on the basis of the site surveys and analysis set out in the BDAR, I am satisfied that development consent can be granted in accordance with s 4.9(3) of Part 4.2 of the SEPP B&C.

  1. Accordingly, it is appropriate for there to be a grant of development consent, subject to the amendments to the first plan of subdivision and subject to appropriate conditions.

The conditions of consent

  1. The parties are in dispute concerning a number of the conditions.

  2. Firstly, the Council seeks a deferred commencement condition requiring MKY to enter into a Voluntary Planning Agreement in terms of the VPA Offer. Whilst MKY has no issue with a condition requiring the entry into an agreement in the terms of the VPA Offer, it says that the condition ought to be an operational condition rather than a deferred commencement condition.

  3. The problem with either of those approaches is that the Council, through Mr To, has raised issues concerning uncertainty as to whether the Council will enter into an agreement in the terms of the VPA Offer. In the time that the Council has had the VPA Offer, it has not been considered in a meeting of the councillors. Nor has the Council given any indication that it intends to consider the VPA Offer in such a meeting or otherwise.

  4. Accordingly, a more appropriate condition would be to require the dedication of the environmental lot as a public reserve pursuant to the provisions of s 49 of the Local Government Act 1993, following the carrying out of the environmental restoration, management and protection works in the BMP. As set out earlier, this dedication can be done by MKY as exempt development. Neither of the parties raised any issue with it being required to be done by a condition of consent, nor was there any suggestion by either party that there was no power to impose such a condition.

  5. Whilst not specifically raised by either party, insofar as the dedication of land is required to be authorised by a contributions plan (see ss 7.11 and 7.13 of the EPA Act), the dedication of land free of cost is contemplated by the Warnervale District Contributions Plan 2021 (Ex 2, Tab 27). Section 4.8.4 of that plan states that environmental lands “shall be rehabilitated back to their natural state in accordance with an approved vegetation management plan at no cost to Council prior to dedication”. A condition of consent requiring that the land the subject of the BMP (Lot 1 less the public road) be dedicated as a public reserve through the registration of a plan of subdivision, following the completion of the obligations under the BMP, is entirely consistent with this. Such a condition ought to be imposed, in lieu of either of the proposed conditions requiring entry into a voluntary planning agreement. The appropriate wording is that which has been advanced by the parties, as follows:

“4.26A On completion of the obligations referred to in Condition 4.24, including the 5 years’ of works described in Table 3 of the Biodiversity Management Plan (BMP), a Plan of Subdivision shall be prepared and registered the effect of which is to dedicate to Council, as a public reserve, the BMP lands identified in BMP Figure 1 – Site location, AEP Ref: 2610.04 dated October 2024.”

  1. Secondly, the condition at 1.4, sought by the Council to change the size of the corner lots, is not required, for the reasons expressed above at [107]-[109]. This condition can be removed.

  2. Thirdly, rather than impose a varied condition 1.5, requiring the plan of subdivision prepared by Brett Anthony Burns Williams to be amended, my preference is that the amended plan of subdivision be prepared prior to the grant of consent. This condition can therefore be removed.

  3. Fourthly, as set out above, condition 1.6 should be amended to make it clear that stage 4 does not include the creation of two environmental lots, given that a new Lot 1 will be created by the earlier subdivision. In addition, for abundance of clarity, it would be appropriate for there to be a new condition 1.4 that requires the staging plans to be updated to reflect that the environmental lots remain in a single lot, which is the new Lot 1 less the land dedicated as public road.

  4. Finally, I note that the conditions required to be met prior to the issue of any subdivision works certificate are split across the separate stages, yet condition 2.1 requires all conditions to be met prior to the issue of “any Subdivision Works Certificate”. The wording of this condition ought to be updated to make it clear that only the relevant conditions are required to be met before the issue of each Subdivision Works Certificate.

The appropriate directions

  1. To enable the Court to uphold the appeal and grant development consent, the applicant will need to prepare an amended plan of subdivision for the first subdivision, and the parties will need to finalise the conditions of consent to reflect the findings made above. I will make directions for this to occur. I am also listing the proceedings before the Court in case either party wishes to make any further submission about the amended plan of subdivision and conditions of consent.

  2. The Court orders that:

  1. The proposed Plan of Subdivision prepared by Brett Anthony Burns Williams dated December 2024 is to be amended so that proposed Lot 1 is enlarged to contain the land described as proposed Lot 82 in DA-005 in addition to the area presently contained within proposed Lot 1.

  2. The applicant is to prepare, file and serve the amended Plan of Subdivision referred to in order (1), by 21 March 2025.

  3. The parties are to confer and agree on the conditions of consent, revised in accordance with the Court’s rulings, by 28 March 2025 and file the revised conditions by 31 March 2025.

  4. The proceedings are listed on 4 April 2025 at 9:00am for disposal of the proceedings.

  5. Exhibits 1-6, C-F and H are returned, the remaining exhibits are retained.

J Gray

Commissioner of the Court

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Decision last updated: 05 March 2025

Most Recent Citation
Cases Citing This Decision

1

MKY Enterprises (Aust) Pty Ltd v Central Coast Council (No 2) [2025] NSWLEC 1215
Cases Cited

4

Statutory Material Cited

12

Camden Council v Cranney [2018] NSWLEC 127
Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77
Johnson v Coffs Harbour City Council [2018] NSWLEC 1094