Pmando Holdings Pty Ltd v Central Coast Council

[2024] NSWLEC 1409

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pmando Holdings Pty Ltd v Central Coast Council [2024] NSWLEC 1409

Hearing dates:

Conciliation conferences on 13 February, 14, 21 and 28 March, and 4, 10 and 26 April and 3 May 2024

Date of orders:

19 July 2024

Decision date:

19 July 2024

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $7,500, such amount to be paid within 28 days of the date of this order.

(2) The appeal is upheld.

(3) Development consent is granted to development application No DA/3716/2022 as amended, for alterations and additions to the Woy Woy Hotel including internal alterations to the ground floor, installation of a beer garden and play area on Lot 1 DP 657247, known as 33-39 The Boulevarde, Woy Woy, 2256, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions to heritage hotel - conciliation conference – agreement between the parties – cl 4.6 variation – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, 8.15, Sch 1, Div 1, s 7

Land and Environment Court Act 1979, s 34

Central Coast Local Environmental Plan 2022, cll 4.1, 4.2, 4.3, 4.4, 5.10, 5.13, 5.18, 5.19, 5.21, 5.22, 5.23, 6.2, 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.8, 7.9, 7.10, 7.24

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 4.2

State Environmental Planning Policy (Industry and Employment) 2021, Ch 3, Sch 5 ss 3.1, 3.6

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6

Texts Cited:

Central Coast Development Control Plan 2022

Category:

Principal judgment

Parties:

Pmando Holdings Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation:

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

Solicitors:
Hones Lawyers (Applicant)
Wiltshire Webb Staunton Beattie (Respondent)

File Number(s):

2023/206833

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Central Coast Council of development application DA/3716/2022 (the DA) for alterations and additions to the Woy Woy Hotel including internal alterations to the ground floor, installation of a beer garden and play area on Lot 1 DP 657247 at 33-39 The Boulevard, Woy Woy, NSW, 2256.

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 13 February 2024 and further adjourned a number of times to through March and April 2024. I presided over the conciliation conferences, which commenced with an on site view. There were no submitters.

3. The parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, following the conciliation conferences. This decision involved the Court upholding the appeal and granting development consent to the DA, subject to conditions.

4. The parties agree that all contentions have now been resolved by the preparation of the following documents:

1. Amended Architectural Drawings including removal of upstairs residential component;

2. Heritage Overlay Drawings;

3. Heritage Impact Assessment dated 12 December 2023;

4. Acoustic Assessment dated 25 January 2024;

5. Access Report dated 12 December 2023;

6. Traffic and Parking Assessment Report dated 18 December 2023;

7. Floor Report dated January 2024;

8. BCA Report dated 28 April 2023;

9. Annual Fire Safety Statement dated 30 September 2022;

10. Hydrant Flow Test dated 22 September 2023; and

11. Plan of Management dated 21 March 2024.

5. The parties advise that the amended architectural drawings, amended documents and agreed Conditions of Consent, have adequately addressed Respondent’s concerns as set out in the Statement of Facts and Contentions (SOFAC).

6. Revised plans (dated 3 May 2024), constituting an amendment to the DA (the Amended Application), were prepared by the applicant following the conciliation conferences and these revised plans form the basis of the s 34 agreement.

7. A signed s 34 agreement with Annexure A was filed with the Court on 3 May 2024, with amended plans and additional material (the amended DA) as agreed between the parties filed on 3 May 2024. The s 34 agreement is supported by an agreed Statement of Jurisdictional Prerequisites, which was submitted on 3 May 2024.

8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

9. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

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

Environmental Planning and Assessment Act 1979

Owner’s consent

11. The parties advise that the DA was made with the written consent of the owner of the site.

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

12. The DA was notified between 9 December 2022 and 20 January 2023 in accordance with Chapter 1.2 of the Central Coast Development Control Plan 2022 (the DCP). No submissions were received in response to this notification.

Conditions

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

Central CoastLocal Environmental Plan 2022

14. The Central Coast Local Environmental Plan (2022) (the LEP) applies to the site and to the proposed development. At the time the DA was lodged, the site was zoned B2 – Local Centre pursuant to the LEP. On 26 April 2023, the site was re-zoned to E1 – Local Centre; and

1. Under the LEP provisions:

1. Use of the site for a ‘Commercial Premises’ or ‘Hotel or Motel Accommodation’ is permissible with development consent under the LEP in the E1 – Local Centre Zone;

2. The parties submit that the proposed development complies with the objectives of the E1 Zone; and

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

2. Clauses 4.1 and 4.2 of the LEP relate to subdivision; and

1. The proposed development does not include subdivision.

3. Pursuant to cl 4.3 of the LEP, the maximum height of buildings on the site is 11.5 metres. The parties advise that the existing building has a maximum height of 6.8 metres; and

1. The proposed development does not result in any change of building height, therefore complying with cl 4.3;

4. Pursuant to cl 4.4 of the LEP a maximum Floor Space Ratio (FSR) of 1:1 applies to the site; and

1. The proposed development complies with the FSR control;

5. Clause 5.10 of the LEP relates to heritage matters; and the site contains a heritage item (the Woy Woy Hotel – Item No. I355); and

1. Development consent is required for the proposed development in accordance with cl 5.10(1)(a) and (2);

2. The parties advise that the proposed development, as amended, complies with the objectives of cl 5.10(1); and

6. For the purposes of cl 5.10(4), the Applicant has submitted a Heritage Impact Assessment dated 12 December 2023 to the Council;

7. For the purposes of cl 5.13 of the LEP, the proposed development does not comprise eco-tourist facilities;

8. For the purposes of cl 5.18 of the LEP, the proposed development does not comprise intensive livestock agriculture;

9. For the purposes of cl 5.19 of the LEP, the proposed development does not comprise pond-based, tank-based or oyster aquaculture;

10. Clause 5.21 of the LEP deals with flood planning. The site is located within a flood planning area in the LEP, and the Applicants submitted to the Respondent a Flood Report dated January 2024 to address the matters required by cl 5.21(2) and (3). The parties advise that:

1. For the purposes of cl 5.21(2)(a) and (e), the proposed development area is classified as a flood storage area and is subject to low flood hazards in the 1% AEP event. The proposed development will be managed to ensure that in the event of a flood, all occupants will be capable of evacuating the site. The proposed external works will not cause adverse offsite impacts. All proposed internal works will not increase the flood risk to people or property given the extent of the pub and floor levels remain identical between existing and proposed conditions;

2. For the purposes of cl 5.21(2)(b) and (e), there are limited elements of the proposed external development which come into contact with the 1% AEP floodwaters. These items represent an immaterial obstruction which would not alter local flood characteristics, especially considering the Site is in a flood storage area, the lack of overland flow and low flood velocities. Overall, proposed flood conditions will be largely unchanged from existing conditions, and hence there will be no adverse flood impacts arising from the development;

3. For the purposes of cl 5.21(2)(c) and (d), there will be sufficient time to warn occupants in the event of heavy rainfall/storm surge prior to flooding commencing on Site, and patrons will be capable of fully evacuating prior to Site inundation. The proposed development does not introduce permanent or significantly increased population on the Site, and hence the capacity of existing evacuation routes will not be materially affected;

4. For the purposes of cl 5.21(2)(e), the proposed development will not adversely affect the environment or cause increased risk of erosion, siltation destruction of riparian vegetation of bank stability issues;

5. For the purposes of cl 5.21(3)(a) and (d), the proposed development will not materially change local flood conditions in the 1% AEP flood event, no material change in proposed flood conditions will occur as a result of climate change;

6. For the purposes of cl 5.21(3)(b), the proposed development only includes alterations and additions to the existing pub. No new building are proposed;

7. For the purposes of cl 5.21(3)(c), as noted above, the proposed development incorporates measures to minimise risk to life and ensure the safe evacuation of people in the event of a flood;

11. To the extent that special flood consideration as contained in cl 5.22 of the LEP has been considered, the parties advise that the Applicant has addressed the matters set out in cl 5.22(3) in the response to cl 5.21 above;

12. For the purposes of cl 5.23 of the LEP, the parties advise that the proposed development is not reasonably likely to disturb public bushland;

13. For the purposes of cl 6.2 of the LEP, the parties advise that the site is not located within an Urban Release Area;

14. For the purposes of cl 7.1 of the LEP, the site is identified as Class 2 on the Acid Sulfate Soils Map. The parties advise that an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual, and provided to the consent authority in accordance with cl 7.1(2);

15. For the purposes of cl 7.2 of the LEP, the parties advise that the site is not located within a drinking water catchment;

16. For the purposes of cl 7.3 of the LEP, the parties advise that the site is not identified as a Foreshore Area;

17. For the purposes of cl 7.4 of the LEP, the parties advise that the proposed development will not penetrate the Limitation or Operations Surface;

18. For the purposes of cl 7.5 of the LEP, the parties advise that the site is not located near Central Coast Airport or in an ANEF contour of 20 or greater;

19. For the purposes of cl 7.6 of the LEP, as existing and demonstrated on the amended architectural drawings and in the Plan of Management, the parties advise that adequate arrangements have been made for:

1. the supply of water;

2. the supply of electricity;

3. the disposal and management of sewage;

4. stormwater drainage or on-site conservation;

5. suitable vehicular access;

6. the collection and management of waste;

20. For the purposes of cl 7.8 of the LEP, the parties advise that the proposed development does not comprise a sex services premises;

21. For the purposes of cl 7.9 of the LEP, the parties advise that the proposed development does not comprise caravan park or manufactured home estate; and

22. The parties advise that the site is not located within the nominated areas for the purposes of cll 7.10-7.24 of the LEP.

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

15. On 1 October 2023, the State Environmental Planning Policy (Sustainable Buildings) 2022 came into force. However, cl 4.2 provides that the policy does not apply to a DA submitted on the NSW Planning Portal but not finally determined before 1 October 2023. The DA was submitted before 1 October 2023 and has not been finally determined. Therefore, the State Environmental Planning Policy (Building and Sustainability Index: BASIX) 2004 (BASIX SEPP) applies; and

1. Under the BASIX SEPP, “BASIX affected building” means a building that contains one or more dwellings but does not include a hotel or motel. The proposed development does not comprise a BASIX affected building, and the parties advise that a BASIX certificate is not required.

State Environmental Planning Policy (Industry and Employment) 2021

16. The parties advise that Chapter 3 - Advertising and Signage in State Environmental Planning Policy (Industry and Employment) 2021 (Industry and Employment SEPP) applies to the site and the DA.

17. For the purposes of s 3.6 of the Industry and Employment SEPP, the parties advise, and I am satisfied that the proposed development is:

1. consistent with the objectives of Chapter 3 as set out in s 3.1(1)(a), in that the proposed signage is not “advertisement” but rather “signage”; and

2. the proposed signage satisfies the assessment criteria specified in Sch 5 of the Industry and Employment SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use; and

1. The parties advise that the site has a long history of use as a hotel/pub, and there is no evidence of any other activities occurring on the site that would render it unsuitable for the continued operation of the Site by virtue of any contaminated land. As such, the parties advise that the site is suitable for the proposed development with regard to Ch 4 of the Resilience and Hazards SEPP; and

2. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

Central Coast Development Control Plan 2022

19. The parties advise that the amended architectural drawings and additional information is satisfactory having regard to the provisions of the DCP and s 4.15(a)(iii) of the EPA Act.

Conclusion

20. Having considered the advice of the parties provided above at [11-29], I am satisfied that:

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

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

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

21. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, and I am required to dispose of the proceedings in accordance with the parties’ decision under s 34(3) of the LEC Act.

22. The Court notes:

1. That Central Coast Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA/3716/2022 made on 3 May 2024 to rely on the documents specified below:

Document	Prepared by	Drawing No.	Date
Notes	Fabric Architecture Studio	A001 (Issue 2)	22 February 2024
Precedents	Fabric Architecture Studio	A002 (Issue 2)	22 February 2024
Survey	Fabric Architecture Studio	A003 (Issue 2)	22 February 2024
Site Analysis	Fabric Architecture Studio	A004 (Issue 2)	22 February 2024
Site Controls	Fabric Architecture Studio	A005 (Issue 2)	22 February 2024
Site Plan	Fabric Architecture Studio	A006 (Issue 2)	22 February 2024
Roof Plan	Fabric Architecture Studio	A007 (Issue 2)	22 February 2024
Shadow Diagrams	Fabric Architecture Studio	A008 (Issue 2)	22 February 2024
Demolition Plan	Fabric Architecture Studio	A009 (Issue 2)	22 February 2024
Area Calculations	Fabric Architecture Studio	A010 (Issue 2)	22 February 2024
Area Calculations – Existing Conditions	Fabric Architecture Studio	A011 (Issue 2)	22 February 2024
Plan – Ground	Fabric Architecture Studio	A101 (Issue 2)	22 February 2024
Plan - Upper	Fabric Architecture Studio	A102 (Issue 2)	22 February 2024
Elevations N+S	Fabric Architecture Studio	A201 (Issue 2)	22 February 2024
Elevations East	Fabric Architecture Studio	A202 (Issue 2)	22 February 2024
Elevations - West	Fabric Architecture Studio	A203 (Issue 2)	22 February 2024
Sections 1, 2, 3	Fabric Architecture Studio	A301 (Issue 2)	22 February 2024
Sections A, B	Fabric Architecture Studio	A302 (Issue 2)	22 February 2024
Perspectives	Fabric Architecture Studio	A401 (Issue 2)	22 February 2024
Perspectives	Fabric Architecture Studio	A402 (Issue 2)	22 February 2024
Details	Fabric Architecture Studio	A500 (Issue 2)	22 February 2024
Details	Fabric Architecture Studio	A501 (Issue 2)	22 February 2024
Details	Fabric Architecture Studio	A502 (Issue 2)	22 February 2024
Plan of management	Hones Lawyers	-	March 2024
Heritage Impact Assessment	GBA Heritage	-	12 December 2023
Acoustic Assessment for DA	Renzo Tonin & Associates	-	25 January 2024
Access Report	Linsday Perry Access	-	12 December 2023
Traffic Report	TEF Consulting	-	18 December 2023
Flood Assessment Report	Martens & Associates	-	January 2024
BCA Assessment Report	Granda Consulting Building Certifiers	-	5 March 2024
Waste Management Plan	Mammoth Projects Pty Ltd	-	3 November 2023

23. The Court orders that:

1. Pursuant to s 8.15(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $7,500, such amount to be paid within 28 days of the date of this order.

2. The appeal is upheld.

3. Development consent is granted to development application No DA/3716/2022 as amended, for alterations and additions to the Woy Woy Hotel including internal alterations to the ground floor, installation of a beer garden and play area on Lot 1 DP 657247, known as 33-39 The Boulevarde, Woy Woy, 2256, subject to the conditions of consent in Annexure A.

G Kullen

Acting Commissioner of the Court 

Annexure A

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Decision last updated: 22 July 2024