Peter Fryar trading as Key Urban Planning v Central Coast Council

[2023] NSWLEC 1079

Land and Environment Court

New South Wales

Medium Neutral Citation:

Peter Fryar trading as Key Urban Planning v Central Coast Council [2023] NSWLEC 1079

Hearing dates:

Conciliation conference on 17 February 2023

Date of orders:

21 February 2023

Decision date:

21 February 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application No. 1923/2021, to rely on the amended plans and documents specified in Annexure A.

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of order (1) in the sum of $5,000.00 within 28 days of the date of this order.

(3) The appeal is upheld.

(4) Development Application No. 1923/2021 for alterations and additions to a former cinema building to provide a mixed use development comprising five retail shops at ground floor level; seven office suites at first floor level; the construction of an additional floor containing a four bedroom dwelling; rooftop plant and services and open space for the dwelling; and associated parking and engineering works is determined by the grant of consent, subject to the conditions set out in Annexure B.

Catchwords:

APPEAL – development application – alterations and additions to a former cinema for the purpose of retail, commercial and shop top housing – conciliation conference – agreement reached – orders made

Legislation Cited:

Central Coast Local Environmental Plan 2022 cl 1.8A

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55, Sch 1

Environmental Planning and Assessment Regulation 2021

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Resilience and Hazards) 2021 ss 2.10, 2.12, 4.6

Wyong Local Environmental Plan 2013

Category:

Principal judgment

Parties:

Peter Fryar trading as Key Urban Planning (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
H Howard (Applicant)
A Rutherford (Respondent)

Solicitors:
John B Hajje & Associates (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/136959

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for alterations and additions to a former cinema building at 54 The Entrance Road, The Entrance, for the purpose of a mixed use development with retail shops at the ground floor, office suites at the first floor, and an additional floor containing a dwelling. The development application was lodged with Central Coast Council on 2 January 2022. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17 February 2023. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement reflects that which was filed on 10 February 2023, and was reached following the agreement of the Council to an amendment to the development application, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). There is no requirement for the amended development application to be lodged on the NSW Planning Portal, as the applicable savings provision in Environmental Planning and Assessment Regulation 2021 provides that the EPA Regulation 2000 continues to apply to development applications submitted before 1 March 2022, except that a requirement to use the NSW Planning Portal under the EPA Regulation 2000 does not apply if the development application is subject to proceedings in the Court. The amendments to the development application include the provision of a Construction Management Plan, the introduction of a setback to Bayview Mall at level 2, the provision of landscaping at level 2 to soften its presentation to Bayview Mall, changes to the external finishes in favour of a lighter colour palette, a widened entrance to the garage, and the introduction of bicycle parking on level 1.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters about which the Court must be satisfied prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The site is in the B2 Local Centre zone pursuant to the Wyong Local Environmental Plan 2013 (WLEP), which continues to apply to the development application as a result of the operation of the savings provision in cl 1.8A of the Central Coast Local Environmental Plan 2022, and development for the purposes of commercial premises and shop top housing are permissible with consent in the B2 zone.

• The proposed development complies with the height and floor space ratio development standards established by the WLEP.

• The subject site is within the coastal environment area, pursuant to the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH). Based on the extent of the proposed development, I have considered the matters in s 2.10(1), and, consistent with s 2.10(2)(a) I am satisfied that the development will not have any adverse impacts on the matters set out in s 2.10(1), and will not cause any increased risk of coastal hazards on that land or other land as per s 2.12.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the SEPP RH. As the site has a history of use for the purposes of a cinema, it is unlikely to be contaminated.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the EPA Regulation 2000.

• The development application was notified between 21 January 2022 and 14 February 2022, and one submission was received. I have considered the issues raised by that submission.

6. 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)).

7. In making the orders to give effect to the agreement between the parties, 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.

8. The Court notes:

1. Central Coast Council as the relevant consent authority has agreed pursuant to cl 55 of the EPA Regulation 2000 to the Applicant amending the Development Application No. 1923/2021 the subject of these proceedings, to rely on the documents specified in Annexure A,

2. The Applicant uploaded the amended application on the NSW Planning Portal on 14 December 2023,

3. The Applicant filed the amended application with the Court on 9 February 2023.

9. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application No. 1923/2021, to rely on the amended plans and documents specified in Annexure A.

2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of order (1) in the sum of $5,000.00 within 28 days of the date of this order.

3. The appeal is upheld.

4. Development Application No. 1923/2021 for alterations and additions to a former cinema building to provide a mixed use development comprising five retail shops at ground floor level; seven office suites at first floor level; the construction of an additional floor containing a four bedroom dwelling; rooftop plant and services and open space for the dwelling; and associated parking and engineering works is determined by the grant of consent, subject to the conditions set out in Annexure B.

J Gray

Commissioner of the Court

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Annexure A

Annexure B

Decision last updated: 21 February 2023