Pollicina v Central Coast Council

[2024] NSWLEC 1368

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pollicina v Central Coast Council [2024] NSWLEC 1368

Hearing dates:

Conciliation conference 5, 6 June 2024

Date of orders:

2 July 2024

Decision date:

02 July 2024

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/1349/2023 for the construction of a residential dwelling with basement garage and roof terrace with swimming pool at 57 Kurrawyba Avenue, Terrigal, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – new residential dwelling and swimming pool – amended plans and documents – conciliation conference – agreement reached – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, ss 23, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch2

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

State Environmental Planning Policy (Resilience and Hazards) 2021 ss 2.11, 4.6

Central Coast Local Environmental Plan 2022 cll 4.3, 4.6, 7.1, 7.6

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130

Texts Cited:

Central Coast Development Control Plan 2022

Category:

Principal judgment

Parties:

Phillip Pollicina (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
P Vergotis, solicitor (Applicant)
M Cottom, solicitor (Respondent)

Solicitors:
Piper Alderman (Applicant)
Local Government Legal (Respondent)

File Number(s):

2023/348578

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 Phillip Pollicina (Applicant) against the deemed refusal of development application DA/1349/2023. As amended the development application seeks consent for the construction of a residential dwelling with basement garage and roof terrace with swimming pool at 57 Kurrawyba Avenue, Terrigal (Lot 7 in DP 501794).

2. A conciliation conference was held between the parties on 5 to 6 June 2024 pursuant to s 34AA of Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference. At the conciliation conference the parties reached agreement based on amended plans and documents. The parties agreement is for the grant of consent to the application, as amended, subject to the annexed conditions of consent.

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 the s 34(3) of the LEC Act). To form this state of satisfaction on the basis that:

1. The Applicant is Phillip Pollicina who is the director of Fesen Pty Ltd who is the owner of the land. The development application was lodged with the consent of the owners of the land under s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2. The development application was notified between 7 and 21 July 2023. Seven submissions were received as a result of the notification. Further, at the commencement of the proceedings a number of residents addressed the Court and outlined their concerns with the development application. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

3. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies to the land. However, the amended development application does not contemplate any clearing of native vegetation on the land.

4. Section 2.11 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) provides that development consent must not be granted to development on land that is within the coastal area unless the consent authority has considered the matters listed at s 2.11(1). The parties agree, and I accept, that the proposed development is:

1. Located away from the foreshore area and will not impact public access to the foreshore.

2. Designed with regard to surrounding development and therefore will maintain a similar presentation to the existing dwellings located on the hillside behind Terrigal Beach.

Further, there are no records of Aboriginal places or sites located on or around the land. I accept the proposed development is therefore unlikely to have any adverse impacts on cultural heritage.

Having considered these matters I find I can be satisfied that the development, situated within a coastal use area, has been designed and will be managed to avoid any adverse impacts on the ecology, visual amenity, environmental and cultural heritage of the coastal use area.

Further, I find that the proposed development is consistent with the surrounding streetscape and designed to avoid adverse impact on the coastal environmental area surrounding the foreshore area.

5. Section 4.6 of SEPP RH requires a consent authority to consider the contamination of land when determining a development application. The land is currently vacant, adjoined by existing residential dwellings. There is no evidence that the land is contaminated or unsuitable for the proposed development. On the basis of the preceding, and the annexed conditions, I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under the development application.

6. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the development application. Compliant with the requirements of SEPP BASIX the development application includes BASIX certificate No. 1383168S_03.

7. The development application was lodged after the commencement of Central Coast Local Environmental Plan 2022 (LEP 2022) which applies to the land. Pursuant to LEP 2022 the land is zoned R2 Low Density Residential Development. The proposed development, a dwelling house, is permitted with consent in the zone. In determining the development application, I have had regard to the objectives of the R2 Low Density Residential zone.

8. Clause 4.3 Height of Buildings of LEP 2022 provides that the maximum height of buildings on the land is 8.5m. The amended development application has a maximum building height of 8.956m and relies on cl 4.6 of LEP 2022 to vary the height standard. The Applicant relies on a written request prepared by Coastal Planning and Consulting dated 15 April 2024, in support of the variation. The written request addresses the matters set out at cl 4.6(3) of LEP 2022, including having regard to the tests set out in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118.

1. Pursuant to cl 4.6(3) of LEP 2022, the Court, in exercising the functions of the consent authority, must be satisfied of both matters in cl 4.6(3) being:

1. that compliance with the development standard in cl 4.3 of LEP 2022 is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) of LEP 2022), and;

2. that there are sufficient environmental planning grounds to justify the contravention of the development standard in cl 4.3 of LEP 2022 (cl 4.6(3)(b) of LEP 2022).

2. Only if the requirements in cl 4.6(3) are met, will the power in cl 4.6(2) to grant consent to development that contravenes the development standard, be enlivened: RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 per Preston CJ at [23].

3. I am satisfied, for the reasons outlined in the written request, that it is unreasonable and unnecessary to comply with the height of building standard in the circumstances of the case as the objectives of the standards are met, notwithstanding the non-compliance. Further, I am satisfied that the grounds advanced in the written request are sufficient environmental planning grounds to justify contravening the development standard.

4. The parties agree, and I accept, that the proposed development is in the public interest because it is consistent with the objectives of height of building standard and the objectives of the of R2 Low Density Residential zone for the reasons detailed in the written request.

5. Having regard to all of the above matters I am satisfied I should uphold the cl 4.6 variation request in relation to the height of building standard in LEP 2022.

9. Clause 7.1 of LEP 2022 relates to Acid Sulfate Soils. A portion of the Site is identified as being affected by Acid Sulfate Soils, Class 5, on the Acid Sulfate Soils Map. Given the discrete and limited nature of acid sulfate soils on the site and the scope of excavation works proposed the parties agree, and I accept, that the works are not likely to lower the water table below 1m AHD on adjoining land mapped as Class 1, 2, 3, 4 soils. I find cl 7.1 is satisfied.

10. Pursuant to cl 7.6 ‘Essential Services’ of LEP 2022, development consent must not be granted to the development application unless the consent authority is satisfied that any public utility infrastructure essential for the proposed development is available or can be made available. The land is surrounded by existing residential development. The proposed development will require a limited extension of services to the site. The parties agree and I accept that the essential services listed at cl 7.6 of LEP 2022 are available.

11. The Central Coast Development Control Plan 2022 (DCP 2022) applies to the site. The SEE filed with the application details the compliance of the proposed development with DCP 2022. 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 in s 34(3)(b) also requires me to “set out in writing the terms of the decision”.

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, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application DA No.1349/2023 and the supporting documents, the subject of these proceedings, to rely on the documents and further information specified below:

Plan No	Revision No	Plan Title	Drawn By	Dated
Variation to Development standard under Clause 4.6 Central Coast LEP 2022	Coastal Planning and Consulting	15 April 2024
DA-04	H	Proposed Upper Ground Plan	Bleu Design	10 April 2024
DA-05	I	Proposed Roof Plan	Bleu Design	14 May 2024
DA-06	G	Proposed Front Elevation (East)	Bleu Design	18 April 2024
DA-07	G	Proposed Side Elevation (North)	Bleu Design	14 May 2024
DA-09	I	Proposed Side Elevation (South)	Bleu Design	14 May 2024
DA-10	G	Proposed Section A-A	Bleu Design	14 May 2024
DA-11	F	Proposed Section B-B	Bleu Design	14 May 2024
DA-36	B	Proposed Detail Section	Bleu Design	April 2024
C	Landscape Plan	Lisa Peace Landscapes	29 May 2024

7. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA/1349/2023 for the construction of a residential dwelling with basement garage and roof terrace with swimming pool at 57 Kurrawyba Avenue, Terrigal, subject to the conditions of consent in Annexure A.

D Dickson

Commissioner of the Court

Annexure A

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Decision last updated: 02 July 2024