Nyinya Investments Pty Ltd ATF Nyinya Investments Unit Trust v Central Coast Council

[2023] NSWLEC 1457

Land and Environment Court

New South Wales

Medium Neutral Citation:

Nyinya Investments Pty Ltd ATF Nyinya Investments Unit Trust v Central Coast Council [2023] NSWLEC 1457

Hearing dates:

Conciliation conference 11 August 2023

Date of orders:

18 August 2023

Decision date:

18 August 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA/557/2022 for the demolition of existing structures and construction of a two storey multi-dwelling housing development comprising 9 units with 2 units to be used as affordable housing pursuant to State Environmental Planning Policy (Housing) 2021, above basement car parking, the removal of 1 tree and associated works at 18 Campbell Avenue, The Entrance (Lot 25 Section 2 DP 14230) subject to the conditions of consent annexed and marked Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition of existing structures and construction of a two storey multi dwelling housing development – amended plans – agreement between the parties - orders

Legislation Cited:

Central Coast Local Environmental Plan 2022, cl 1.8A

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2021, s 23

Land and Environment Court Act 1979, s 34

State Environment Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Housing) 2021, Div 1, ss 16, 17, 18, 21

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

Wyong Local Environmental Plan 2013, cll 2.7, 6.1

Texts Cited:

Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy: Urban Design Guidelines for Infill Development, March 2004

Wyong Development Control Plan 2013

Category:

Principal judgment

Parties:

Nyinya Investments Pty Ltd ATF Nyinya Investments Unit Trust (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
M Norman (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/244024

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by the Applicant, Nyinya Investments, against the deemed refusal of their Development Application DA/557/2022. The development application, as amended, seeks consent for demolition of existing structures and the construction of a two storey multi-dwelling housing development comprising 9 units above basement car parking, and the removal of 1 tree. The development application proposes that two of the units be used as affordable housing pursuant to State Environmental Planning Policy (Housing) 2021 (SEPP Housing). The development is proposed at 18 Campbell Avenue, The Entrance.

2. A conciliation conference was held between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) on 24 January 2023. That conciliation conference was terminated, and the matter listed for hearing. In July 2023 the Applicant was granted leave to amend their development application. The principal amendments were as follows:

• A reduction in the number of units from 10 to 9;

• An increase in the size of units to a minimum of 65m²;

• Reconfiguration of the building design to introduce pitched roofs and articulate the building form to read as separate building elements;

• Lowering of the building elements to better reflect the sloping site topography;

• Introduction of a full subterranean basement and extension of the extent of the basement into the rear (northern) portion of the site;

• Reduction in the number of basement car parking spaces from 10 to 9;

• Provision of ramped pedestrian access along the eastern boundary; and

• A private rooftop terrace area provided to units R1 and R2.

3. Following the amendment to the development application the parties reached an in principle agreement and sought orders for a further conciliation conference. That conciliation conference was listed on 11 August 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached an agreement based on amended plans and documents. The parties’ agreement is for the grant of consent to the application, as amended, subject to conditions.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1. The development application was lodged with the consent of the owner of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

2. The Development Application was notified by the Respondent from 10 June 2022 to 4 July 2022 as required by the Wyong Development Control Plan 2013. No submissions were received.

3. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), a consent authority must not consent to the carrying out of development unless it has considered whether the land is contaminated. The site is not known to be contaminated and the historic residential use of the site does not suggest any risk of contaminated materials. The conditions of consent include at Condition 4.12, a condition for the appropriate management of asbestos if located during works.

4. The amended development application is accompanied by a BASIX certificate dated 14 March 2023, complying with the requirements of State Environment Planning Policy (Building Sustainability Index: BASIX) 2004.

5. The amended development application seeks consent for the removal of a Camphor Tree (Cinnomaum Camphora) which is supported by the recommendations of the Arboricultural Report which forms part of the application. Pursuant to State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), I am satisfied that the tree does not comprise Koala Habitat Vegetation and its removal will not trigger the biodiversity offset scheme. Accordingly, the removal of this tree is consistent with the SEPP BC having regard to the tree species, integrity, level of significance and replacement planting as proposed in the landscaping strategy for the site shown in the amended landscape plans.

6. The development application seeks consent for ‘in-fill affordable housing’ and is subject to the provisions of Division 1 of SEPP Housing. I am satisfied that the division of SEPP Housing applies as:

1. development for the purpose of ‘multi dwelling housing’ is permitted with consent in the R3 Medium Density zone under Wyong Local Environmental Plan 2013 (LEP 2013): s 16(1)(a) of SEPP Housing;

2. proposed units R4 and R5 are required to be dedicated as affordable housing. These units comprise 21.1% of the gross floor area of the building: s 16(1)(b) of SEPP Housing;

3. the development is located in the Greater Sydney Region, but is within an accessible area: s 16(1)(c) of SEPP Housing; and

4. the land is within 800m of land zoned B2 Local Centre: s 16(1)(d) of SEPP Housing.

7. The development is compliant with the development standard of 1.1:1 at s 17 Floor Space Ratio of SEPP Housing.

8. Section 18 of SEPP Housing contains non-discretionary development standards, as detailed in the following. The amended development application is compliant with those standards.

1. The site area (878m²) exceeds the minimum requirement of 450m²: s 18(2)(a)

2. The landscaped area (315.9m²) exceeds 30% of the site area (36%): s 18(2)(c)

3. The deep soil zone (133.8m²) exceeds 15% of the site area (15.2%), the deep soil zone has minimum dimensions of 3m and all of the deep soil is located in the rear portion of the site: s 18(2)(d)

4. At least 70% of living rooms and private open space receive a minimum of 3 hours of direct solar access between 9am and 3pm at mid-winter: s 18(2)(e)

5. A minimum of 0.5 parking spaces are provided for each dwelling (9 parking spaces provided for 9 dwellings): s 18(2)(g)

6. All dwellings are 1 bedroom and have a floor area of at least 65m²: s 18(2)(j)

9. The statement of environmental effects accompanying the development application includes an assessment against the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004. In determining the development application, I have considered this policy and the compatibility of the development with the character of the areas as required by s 19 of SEPP Housing.

10. Condition 7.1A of Annexure A requires that the dwellings R3 and R4 within the development will be used for affordable housing and be managed by a registered community housing provider complying with s 21 of SEPP Housing.

11. On 1 August 2022, the Central Coast Local Environmental Plan 2022 (LEP 2022) came into force and repealed LEP 2013. However, given the effect of cl 1.8A of LEP 2022, LEP 2013 continues to apply to the Development Application as it was lodged prior to the commencement of LEP 2022.

12. Development for the purpose of ‘multi dwelling housing’ is permitted with consent in the R3 Medium Density zone under LEP 2013. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2013.

13. The development application is compliant with the development standards in LEP 2013.

14. Pursuant to cl 6.1 of LEP 2013, the site is mapped as containing Class 5 Acid Sulfate Soils (ASS), while the site is within 500m of adjacent Class 3 ASS. The development does not propose works below 5m AHD as the bottom of the basement is the lowest point of the development at AHD 11.77m.

5. 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.

6. 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.

7. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA/557/2022 for the demolition of existing structures and construction of a two storey multi-dwelling housing development comprising 9 units with 2 units to be used as affordable housing pursuant to State Environmental Planning Policy (Housing) 2021, above basement car parking, the removal of 1 tree and associated works at 18 Campbell Avenue, The Entrance (Lot 25 Section 2 DP 14230) subject to the conditions of consent annexed and marked Annexure A.

D Dickson

Commissioner of the Court

22.244024 Annexure A

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Decision last updated: 18 August 2023