Peninsula Capital Holdings Pty Ltd v Central Coast Council

[2025] NSWLEC 1001

Land and Environment Court

New South Wales

Medium Neutral Citation:

Peninsula Capital Holdings Pty Ltd v Central Coast Council [2025] NSWLEC 1001

Hearing dates:

Conciliation conference 18 November 2024

Date of orders:

06 January 2025

Decision date:

06 January 2025

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders:

(1) The Applicant is granted leave to file the amended Development Application referred to in [6] with the Court.

(2) The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $3,000 within 28 days of these orders.

(3) The appeal is upheld.

(4) Development Application No. DA/422/2024, as amended, for the demolition of existing structures and construction of a two storey multi dwelling housing development, comprising of 3 dwellings and 5 car spaces, tree removal, and associated earthworks and retaining walls on land legally described as Lot 45 in DP7807 and known as 7 Berith Street, Umina Beach NSW 2257, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition and construction of multi dwelling housing development – conciliation conference – amended plans – agreement between the parties – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7,

Land and Environmental Court Act 1979, s 34

Central Coast Local Environmental Plan 2022, cll 2.7, 4.3, 4.4, 7.1, 7.6

Environmental Planning and Assessment Regulation 2021, s 23

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 2.3, Ch 2

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

Texts Cited:

Central Coast Development Control Plan 2022

Category:

Principal judgment

Parties:

Peninsula Capital Holdings Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
M Ball(Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
MBM Legal and Conveyancing (Respondent)

File Number(s):

2024/206049

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of development application DA/422/2024. The development application, as amended, seeks consent for the demolition of existing structures and construction of a two storey multi dwelling housing development, comprising of 3 dwellings and 5 car parking spaces with associated earthworks and retaining walls. The development is proposed at 7 Berith Street, Umina Beach (Lot 45 in DP7807).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on 18 November 2024. I presided over the conciliation conference. At the conciliation conference, agreement was reached between the parties as to the terms of a decision that would be acceptable to them. This agreed decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 10 December 2024.

3. 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 site the subject of the development application is owned by the Applicant, Peninsula Capital Holdings Pty Ltd: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2. The development application was first notified by the Applicant between 19 April and 13 May 2024 in accordance with the Central Coast Community Engagement Plan 2021. No submissions were received during the notification period. The amended development application was not renotified as the Respondent formed the view that the amendments to the development did not increase its environmental impacts, in accordance with section 23 of Schedule 1, Part 2 of the EPA Act. I accept that finding.

3. Pursuant to s 2.3 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), Chapter 2 ‘Vegetation in Non Rural Areas’ applies to the development application. The proposed tree removal has been assessed in the arboricultural assessment which forms part of the development application. That assessment concludes that the proposed removal of the nominated trees is consistent with the provisions of SEPP BC when consideration is given to the tree species, integrity, level of significance and replacement planting proposed in the landscaping strategy for the site. I accept, that the relevant provisions of Chapter 2 of SEPP BC are met.

4. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that the land the subject of the development application has been historically utilised for residential use. There are no known previous uses that would lead to the site being contaminated or unsuitable for ongoing use for residential purposes. The development application does not propose a change of use. The parties agree and I accept that s 4.6 of the SEPP RH is satisfied.

5. The amended development application is accompanied by a complying BASIX Certificate No. 1774201M dated 21 November 2024.  A condition of consent requires compliance with the commitments detailed in the BASIX certificate.

6. The Central Coast Local Environmental Plan 2022 (LEP 2022) is the applicable environmental planning instrument to the Site. The land is zoned R1 General Residential under LEP 2022 and multi dwelling housing is permissible with consent in the zone. In determining the development application, I have given consideration to the objectives of the zone which are:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To promote best practice in the design of multi dwelling housing and other similar types of development.

•  To ensure that non-residential uses do not adversely affect residential amenity or place unreasonable demands on services.

7. Demolition works are permitted with consent pursuant to cl 2.7 of LEP 2022.

8. Clause 4.3 (Height of Buildings) in LEP 2022 applies to the site. It prescribes a maximum building height of 8.5 metres: cl 4.3(2). The maximum proposed building height of the development is 7.49 metres and is therefore compliant with the building height control.

9. Clause 4.4 (Floor Space Ratio) in LEP 2022 applies to the site. It prescribes a maximum floor space ratio of 0.5:1 cl 4.4(2). The proposed floor space ratio for the development is approximately 0.46:1 and is therefore compliant.

10. Pursuant to cl 7.1 (Acid Sulfate Soils) in LEP 2022, the site is mapped as class 4 Acid Sulfate Soils. The amended development application proposes at-grade car parking with no basement level. There are no works proposed more than two metres below the natural ground surface and no works which are likely to lower the watertable more than two metres below the natural ground surface. This clause is satisfied.

11. Pursuant to cl 7.6 (Essential Services) in LEP 2022 consent must not be granted unless the consent authority is satisfied that all of the services that are essential for the development are available or that adequate arrangements have been made to make them available when required. The parties agree, and I accept that this clause is satisfied in the following manner:

1. the supply of water:

The site currently contains a residential dwelling house and is located within an established residential area. The site is currently connected with supply of water.

2. the supply of electricity;

The site currently contains a residential dwelling house and is located within an established residential area. The site is currently connected with supply of electricity.

3. the disposal and management of sewage;

The site currently contains a residential dwelling house and is located within an established residential area. The site is currently serviced for disposal and management of sewage.

4. stormwater drainage or on-site conservation;

The amended development application is accompanied by stormwater drainage plans prepared by Meares Consulting Pty Ltd dated 25 November 2024. Stormwater is proposed to be directed to the street kerb at Berith Street.

5. suitable vehicular access; and

Vehicular access to the development is provided off Berith Street into the garage of Unit 1. There is also vehicular access from the unnamed laneway at the west of the site to the garage of Unit 3 and an additional resident parking in front of Unit 2. The amended development application is accompanied by a Traffic and Parking Impact Assessment prepared by McLaren Traffic Engineering dated 25 November 2024 which confirms that the vehicular access arrangements are safe and suitable from a traffic perspective and includes swept paths.

6. the collection and management of waste.

The site is currently serviced by waste collection. The amended development application is accompanied by a Waste Management Plan which details the proposed management of waste for the development. The proposed location on the road reserve for the storage of bins pending collection is nominated in the architectural plans.

12. Central Coast Development Control Plan 2022 (DCP) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of the DCP. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

4. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)).

5. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

6. The Court notes that the Respondent has approved, as the relevant consent authority, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA/422/2024 to rely upon the following amended documents:

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1	Drawing No: S34-01 Revision D	Landscape Calc Plan / Demo Plan / GF & FF Calc. Plan	DA DesignWorx P/L	20 November 2024
	Drawing No: S34-02 Revision D	Site & Ground Floor Plan		20 November 2024
	Drawing No: S34-03 Revision D	First Floor Plan		20 November 2024
	Drawing No: S34-04 Revision D	Roof Plan		20 November 2024
	Drawing No: S34-05 Revision D	Elevations/Section A-A		20 November 2024
	Drawing No: S34-06 Revision D	Streetscape Elevations / Site Analysis Plan		20 November 2024
	Drawing No: S34-07 Revision D	Shadow Plans (Taken from 21st of June)		20 November 2024
	Drawing No: S34-08 Revision D	Shadow Plans (Taken from 21st of June)		20 November 2024
	Drawing No: S34-09 Revision D	Shadow Plans from 9AM to 3PM (Taken from 21st of June)		20 November 2024
BASIX Notes 1 of 2 - 7 Berith Street, Umina Beach
Revision A	Materials & Finishes Schedule	20 November 2024
Landscape Plans
2	Drawing No LPS34 25-68 Issue D Sheet 01	Hardscape Plan	Conzept Landscape Architects	25 November 2024
	Drawing No LPS34 25-68 Issue D Sheet 02	Landscape Plan		25 November 2024
	Drawing No LPS34 25-68 Issue D Sheet 03	Details		25 November 2024
	Drawing No LPS34 25-68 Issue D Sheet 04	Details		25 November 2024
	Drawing No LPS34 25-68 Issue D Sheet 05	South Elevation		25 November 2024
	Drawing No LPS34 25-68 Issue D Sheet 06	Specification		25 November 2024
Survey Plan
3	Reference 7BerithSt Issue 2	Plan showing Details and Levels	NJB Surveying	14 October 2024
Services Survey
4	Plan No: MK25.012024 Issue 1 Sheet 1 of 2	Plan showing the approximate position/depths of Investigated services along the front/rear of 7 Berith Street, Umina Beach	On Point Locating	25 October 2024
	Plan No: MK25.012024 Issue 1 Sheet 2 of 2	Plan showing the approximate position/depths of investigated services along the front/rear of 7 Berith Street, Umina Beach		25 October 2024
Stormwater Plans
5	Drawing No: Sheet 1 Rev L	Stormwater Drainage Plan	Meares Consulting	25 November 2024
	Drawing No: Sheet 2 Rev L	Stormwater Drainage Plan		25 November 2024
	Drawing No: Sheet 3 Rev L	Sediment Control Plan		25 November 2024
Documents
6	Traffic and Parking Impact Statement Reference: 240571.01FB		McLaren Traffic Engineering	25 November 2024
7	Stormwater Design Certificate		Meares Consulting	25 November 2024
8	Statement of Environmental Effects		Think Planners	22 November 2024
9	Basix Certificate No: 1774201M		Manali Rana	21 November 2024
10	Arboricultural Impact Assessment		Hugh The Arborist	1 November 2024

7. The Court orders that:

1. The Applicant is granted leave to file the amended Development Application referred to in [6] with the Court.

2. The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $3,000 within 28 days of these orders.

3. The appeal is upheld.

4. Development Application No. DA/422/2024, as amended, for the demolition of existing structures and construction of a two storey multi dwelling housing development, comprising of 3 dwellings and 5 car spaces, tree removal, and associated earthworks and retaining walls on land legally described as Lot 45 in DP7807 and known as 7 Berith Street, Umina Beach NSW 2257, is determined by the grant of development consent subject to the conditions at Annexure A.

I certify that this and the preceding 6 pages are a true copy of my reasons for judgment.

………………………….

D Dickson

Commissioner of the Court

Annexure A

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Decision last updated: 06 January 2025