Stevens Holdings Pty Limited trading as Stevens Group v Central Coast Council

[2020] NSWLEC 1395

Land and Environment Court

New South Wales

Medium Neutral Citation:

Stevens Holdings Pty Limited trading as Stevens Group v Central Coast Council [2020] NSWLEC 1395

Hearing dates:

Conciliation conference on 18 August 2020

Date of orders:

27 August 2020

Decision date:

27 August 2020

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Actare:

(1)   The appeal is upheld;

(2)   Development Application No. 55881/2019 is approved subject to the Conditions of Consent which are annexed hereto and marked ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – subdivision and erection of new service station – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Gosford Local Environmental Plan 2014

Land and Environment Court Act 1979

State Environmental Planning Policy (Coastal Management) 2018

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy No 55—Remediation of Land

Category:

Principal judgment

Parties:

Stevens Holdings Pty Limited trading as Stevens Group (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
B Tobin (Solicitor) (Applicant)
M Domingo (Solicitor) (Respondent)

Solicitors:
DWF (Australia) (Applicant)
Central Coast Council (Respondent)

File Number(s):

2019/188876

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by Stevens Holdings Pty Ltd, trading as Stevens Group (Applicant) who is appealing the deemed refusal of their development application, DA 55881/2019, by Central Coast Council. The application seeks consent for the demolition of existing improvements, three lot subdivision and construction of a service station, restaurant, vehicle repair station (tyre outlet), a warehouse and signage on proposed Lot 1, the creation of two residue parcels and associated earthworks, landscaping and servicing. The development is proposed at 90 - 96 The Entrance Road, Erina (Lot 1 DP 625529, Lot 3 DP 22264, Lot 4 DP 22264 and Lot 1 DP 535379).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 18 August 2020. Following the conciliation, 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 would be acceptable to them. The decision agreed upon is that the appeal is upheld, subject to the conditions of consent annexed to this judgment.

4. 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 have formed this state of satisfaction for the following reasons:

1. The development application was lodged with the consent of the owner of the land to which the development relates: cl 49 of the Environmental Planning and Assessment Regulation 2000 (the Regulation).

2. Pursuant to the Gosford Local Environmental Plan 2014 (LEP 2014) the subject site is zoned IN1: General Industrial. The proposed development (Service Station, Restaurant, Warehouse and Vehicle Repair Station) are uses that are permissible with consent in the zone. I have had regard to the objectives of the zone in determining the application. 

3. The proposed development does not contravene any development standard in LEP 2014.

4. The site the subject of the development application is bushfire prone land under s 4.14 of the EPA Act. The development application was referred to the NSW Rural Fire Service. A response was provided on 15 June 2020 which recommended conditions of consent, which are incorporated in the annexed conditions.

5. The adjoining land is mapped as Coastal Wetlands under State Environmental Planning Policy (Coastal Management) 2018 (SEPP CM) and the site is located within the mapped Proximity Area for Coastal Wetlands. As required by SEPP CM I am satisfied that the proposed development will not significantly impact on:

(a) the biophysical, hydrological or ecological integrity of the adjacent coastal wetland; or

(b) the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland.

6. Clause 101 of State Environmental Planning Policy (Infrastructure) 2007 applies to the development application as the site has frontage to a classified road. As required by cl 101 I am satisfied that it is not practicable for the site to have vehicular access to the land other than by the classified road, that as amended the development will not adversely impact the safety, efficiency and ongoing operation of the classified road, and finally that the development is not of a type that is sensitive to traffic noise and emissions. I note that the development application was referred to the Roads and Maritime Services who recommended conditions of consent, which are incorporated in the annexed conditions.

7. As required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land, consideration has been given as to whether the subject site is contaminated. A detailed site investigation has been prepared for the subject site by EP Risk, dated 8 May 2019. The report concludes that the site is considered to present a low risk of contamination in its current configuration. The results of analytical testing have been reported at levels that would not preclude the proposed future use of the site as a service station with associated restaurant, warehouse, and vehicle repair station buildings, subject to implementation of the reports’ recommendations. Compliance with the detailed site investigation is required as part of the annexed conditions.

8. The application was notified in accordance with the relevant development control plan and the submissions have been considered.

5. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

6. 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.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Actare:

1. The appeal is upheld;

2. Development Application No. 55881/2019 is approved subject to the Conditions of Consent which are annexed hereto and marked ‘A’.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (611887, pdf)

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Decision last updated: 27 August 2020