Prescott v Central Coast Council

[2024] NSWLEC 1609

Land and Environment Court

New South Wales

Medium Neutral Citation:

Prescott v Central Coast Council [2024] NSWLEC 1609

Hearing dates:

Conciliation Conference on 1 August 2024

Date of orders:

01 October 2024

Decision date:

01 October 2024

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application No DA 337/2024 as amended for the demolition of the existing dwelling, construction of new dwelling with pool and detached garage on the land at 140 Araluen Drive, Hardys Bay NSW 2257 known as Lot 1 in Deposited Plan 1118822, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 4.17, 8.7, 10.3, Sch 1, Div 2, s 7

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

Central Coast Local Environmental Plan 2022, cll 2.2, 2.3, 2.7, 4.3, 4.4, 5.10, 5.11, 5.21, 7.1, 7.6

Environmental Planning and Assessment Regulation 2021, s 38

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

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

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 4.6

Texts Cited:

Central Coast Development Control Plan 2022

NSW Rural Fire Service, Planning for Bush Fire Protection 2019

Category:

Principal judgment

Parties:

William Prescott (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
M Parrino (Solicitor) (Applicant)
M Ball (Solicitor) (Respondent)

Solicitor:
Project Lawyers (Applicant)
Central Coast Council (Respondent)

File Number(s):

2024/197638

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 deemed refusal by the Central Coast Council of development application DA/337/2024 (the DA). The DA sought consent for the construction of a new dwelling with pool and detached garage on land described as Lot 1 in DP 1118822 known as 140 Araluen Drive, Hardys Bay (the site).

2. The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 19 June 2024.

3. The Court arranged a conciliation conference under subs 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 1 August 2024. I presided over the conciliation conference, which commenced with an onsite view, attended by one submitter.

4. At the first day of the conciliation conference, the parties advised that they had reached an in principle s 34 agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. Accordingly, the hearing was adjourned, and the matter proceeded under s 34 of the LEC Act. This decision involved the Court upholding the appeal and granting development consent to the DA, subject to conditions.

6. Amended architectural plans were prepared (the amended DA) and filed with the Court on 25 September 2024. The signed s 34 agreement and Annexure A (Conditions of Consent) were filed on 1 August 2024. An updated Annexure A was filed on 25 September 2024. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites. The Jurisdictional Statement was filed with the Court on 1 August 2024.

7. The parties advise that the amended DA satisfactorily addresses the contentions raised by the Respondent in the SOFAC.

8. In particular the changes in the amended DA included:

1. Increase in the setback from the boundary of the north-eastern corner of the proposed dwelling, and changes to the roof pitch of the proposed dwelling, to reduce impacts on views from the objector’s property.

9. In particular, the parties advised that in relation to the amended DA:

1. due to the site topography, the proposed development has been appropriately stepped, as practicable, to be consistent with the neighbouring dwellings, providing a suitable response to the site’s topographical constraints;

2. The parties agree that the amended proposed development will still result in view sharing for surrounding properties, however that this considered to be satisfactory based on the view loss analysis for the amended DA; and

3. The parties agree that the proposed development includes carefully selected window locations and utilises highlight windows to ensure privacy is maintained to adjoining properties.

10. In a response to an Affidavit filed by the Applicant’s solicitor on 12 August 2024, a Notice of Motion was granted to bring to my attention the Affidavit of M Parrino (solicitor for the Applicant) and Exhibit MP-1. This exhibit contained, amongst other material, comments from the objector in relation to the view impact analysis prepared by the Applicant for the amended DA.

11. On 9 August 2024, the two expert town planners (for the Applicant and the Respondent) prepared a supplementary Joint Report to ensure that the objector’s concerns were addressed. This is included in Exhibit MP-1. I have reviewed this material and note that the parties remain in agreement in relation to the approval of the amended DA through the s 34 agreement filed with the Court.

12. 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.

13. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

14. 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.

Jurisdictional Prerequisites

Environmental Planning and Assessment Act 1979

Owner’s consent

15. Owner’s consent was provided by the Applicant (who is the landowner) in the lodgement of the DA.

Community Participation (Sch 1, Div 2, subs 7(1) EPA Act)

16. The DA was publicly notified between 22 March 2024 and 9 April 2024. One submission was received objecting to the proposed development.

17. The parties have confirmed that the Objector’s submission requested the Respondent to require the erection of surveyor certified height poles.

18. As a result, on 12 June 2024, the Respondent issued a letter to the Applicant requesting:

1. Erection of height poles; and

2. A view impact assessment with superimposed images.

19. The parties have confirmed that on 12 July 2024 a joint site inspection was held with the Applicant’s town planner and the Respondent’s town planner, to enable images to be taken at agreed locations for the purpose of the view impact assessment. The parties confirm that the height poles were also erected by a registered surveyor.

20. The Respondent has confirmed that the amended plans were provided to the objector on 19 July 2024 and 1 August 2024. The Respondent determined that re-notification was not required as the impacts on the neighbouring properties had been reduced by the amendments to the proposed development.

EPA Act s 4.14: Consultation and development consent—certain bush fire prone land

21. The parties advise that the site is mapped as bushfire prone land on a map certified under s 10.3(2) of the EPA Act. The parties noted that only the south-eastern corner of the site is mapped as a “Vegetation Buffer" and no proposed works are actually located within the mapped land.

22. The parties advise that the proposal is supported by Bush Fire Assessment Report prepared by Clarke Dowdle & Associates dated 8 March 2023 (Bushfire Report). The parties submit that the Bushfire Report certifies that the proposed development conforms with the performance criteria for Planning for Bush Fire Protection 2019 (PBP) and the Court can be satisfied that the development conforms with this document.

Conditions

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

Central Coast Local Environmental Plan 2022

24. The Central Coast Local Environmental Plan 2022 (the LEP) applies to the site and to the proposed development. Under the LEP provisions, the site is zoned R2 Low Density Residential pursuant to cl 2.2 of the LEP; and

1. The proposed development is permitted with consent under cl 2.3 of the LEP;

2. Demolition is permitted with consent under cl 2.7 of the LEP;

3. the parties agree that the amended DA is consistent with the R2 Low Density Residential zone objectives pursuant to cl 2.3 of the LEP;

4. 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.

25. Clause 4.3 of the LEP relates to height of buildings. The site has a maximum building height of 8.5m under the LEP. The parties agree that the proposed development does not exceed the maximum allowable height, as shown in the amended DA.

26. Clause 4.4 of the LEP relates to floor space ratio (FSR). The site does not have a maximum FSR under the LEP.

27. Clause 5.10 of the LEP relates to heritage conservation. The parties submit that the site is not mapped as being an item of heritage significance or being located within a heritage conservation area.

28. Clause 5.11 of the LEP relates to Bush Fire Hazard Reduction. The parties advise that the site is mapped as being located on bushfire prone land. The proposal is supported by a Bushfire Report, which concludes that the proposed development can comply with the performance criteria for PBP if the recommended bushfire protection measures outlined within the Bushfire Report are implemented.

29. Clause 5.21 of the LEP relates to flood planning. The parties advise that the site is not mapped as being within a flood planning area.

30. Clause 7.1 of the LEP relates to Acid Sulfate soils. The parties advise that the site is impacted by Class 5 Acid Sulfate Soils and is located directly adjacent to Class 2 Acid Sulfate Soils and 20m from Class 1 Acid Sulfate Soils; and the parties advise that:

1. The proposed development does not include works below 5m Australian Height Datum (AHD);

2. the proposed development is not anticipated to lower the water table below 1.0m AHD on adjacent Class 1, 2, 3 or 4 land; and

3. the amended DA is acceptable with regard to Clause 7.1 of the LEP.

31. Clause 7.6 of the LEP relates to essential services. The site is within an established area and is currently provided with electricity, telephone, water and sewerage services. The parties submit that the proposed development is acceptable with regard to cl 7.6 of the LEP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

32. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) applies to the site. The aims of Ch 2 of the Biodiversity SEPP are to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation.

33. The parties advise that the amended DA is acceptable with regard to the Biodiversity SEPP for the following reasons:

1. The amended DA does not propose the removal of trees; and

2. The amended DA is supported by a Landscape Plan dated 17 July 2024 (dwg no. 183-A-10). The parties agree that existing shrubs and vegetation are to be removed to accommodate for the proposed development. Further, the proposal will be supplemented with improved planting and more appropriate native species.

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

34. The Applicant submitted BASIX Certificate No 1730888S_02 prepared by James Fraser dated 29 July 2024 with the amended plans.

State Environmental Planning Policy (Resilienceand Hazards) 2021

35. The parties advise that the site is mapped as being within the Coastal Environment Area and Coastal Use Area under State Environmental Planning Policy (Resilience and Hazards) 2021 (the Resilience and Hazards SEPP). In accordance with ss 2.10 and 2.11 of the Resilience and Hazards SEPP, the parties agree that the proposal has been designed to avoid or minimise impact as follows:

1. The site is separated from the waterway by Araluen Drive. Runoff will be managed during the construction phase of the development and appropriate conditions can be imposed. The development, when complete, will have no adverse impacts on the integrity and resilience of the biophysical, hydrological or ecological environment. The water quality will be improved through better management of stormwater on the site as stormwater from the roof will be collected and reused on the site (where possible);

2. The proposal takes place on land that has been previously disturbed or has minimal intervention on the existing landform. The proposal will have no adverse impact on coastal environmental values or natural coastal processes;

3. No significant vegetation exists on the site and vegetation will be substantially maintained and supplemented with improved planting and more appropriate native species;

4. The site is already disturbed by the existing development and use. It is unlikely that any Aboriginal cultural heritage items or places will be impacted as a result of the proposal. Further, the site does not contain any cultural and built environmental heritage items;

5. There is no existing access to the foreshore from the site. Accordingly, the proposal will not adversely impact the existing, safe access to and along the foreshore;

6. The proposal will not overshadow, create a wind funnel or result in the loss of views to or from any public place;

7. The proposal is for a new residential dwelling that will not adversely impact the visual amenity or scenic qualities of the locality.

36. Section 4.6 of the 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 have advised that based on their investigation of site history, perusal of historic aerial imagery and long residential use of the site, it is unlikely that the site has previously been used for any potentially contaminating land uses, and is, therefore, unlikely to be contaminated. The parties agree that no further action is required in relation to contamination.

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

37. The parties advise that all of the matters contained in s 4.15 of the EPA Act (including the Central Coast Development Control Plan 2022) which are of relevance to the proposed development have been taken into consideration, and the amended DA is acceptable subject to conditions.

Conclusion

38. Having considered the advice of the parties provided above at [15]-[37], I am satisfied that:

1. the Applicant’s amended DA can be approved having regard to the matters in subs 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;

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

39. Further, 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. Accordingly, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

40. 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 No. 337/2024 made on 1 August 2024 to rely on the documents specified below:

Plans	Rev	Date
Architectural Plans prepared by Mora Makers of Responsive Architecture
i) Site Analysis, dwg no. 183-A-01	DA2	29 July 2024
ii) Lower Floor Plan, dwg no. 183-A-02	DA2	29 July 2024
iii) Ground Floor Plan, dwg no. 183-A-03	DA2	29 July 2024
iv) Upper Floor + Roof Plan, dwg no. 183-A-04	DA2	29 July 2024
v) Garage Plan + Section, dwg no. 183-A-05	DA2	29 July 2024
vi) South East Elevation, dwg no. 183-A-06	DA2	29 July 2024
vii) North West Elevation, dwg no. 183-A-07	DA2	29 July 2024
viii) North – East + South – West Elevation, dwg no. 183-A-08	DA2	29 July 2024
ix) Section AA, dwg no. 183-A-09	DA2	29 July 2024
x) Landscape Plan, dwg no. 183-A-10	DA2	29 July 2024
xi) Shadow Diagrams, dwg no. 183-A-50	DA2	29 July 2024
xii) Area Calculations, dwg no. 183-A-52	DA2	29 July 2024
xiii) Erosion + Sediment Control + Stormwater Plan, dwg no. 183-A-51	DA2	29 July 2024
xiv) BASIX Commitments (Part A), dwg no. 183-A-53	DA2	29 July 2024
xv) BASIX Commitments (Part B), dwg no. 183-A-54	DA2	29 July 2024
BASIX Certificate 1730888S_02 prepared by James Fraser	02	29 July 2024

2. The amended DA was filed with the Court on 1 August 2024.

41. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application No DA 337/2024 as amended for the demolition of the existing dwelling, construction of new dwelling with pool and detached garage on the land at 140 Araluen Drive, Hardys Bay NSW 2257 known as Lot 1 in Deposited Plan 1118822, subject to the conditions of consent in Annexure A.

G Kullen

Acting Commissioner of the Court

**********

Annexure A

Decision last updated: 01 October 2024