Stevens Holdings Pty Limited v Central Coast Council

[2025] NSWLEC 1045

Land and Environment Court

New South Wales

Medium Neutral Citation:

Stevens Holdings Pty Limited v Central Coast Council [2025] NSWLEC 1045

Hearing dates:

Conciliation conference on 21 October 2024

Date of orders:

28 January 2025

Decision date:

28 January 2025

Jurisdiction:

Class 1

Before:

Nichols AC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development application DA/2270/2023 as amended, for the light industrial development comprising 22 units and associated works at the Site, is determined by the grant of development consent subject to the conditions included at Annexure A.

(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, as agreed or assessed.

Catchwords:

APPEAL – development application – light industrial development – conciliation conference – agreement between the parties – orders made

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Central Coast Local Environmental Plan 2022, cll 2.1, 2.3, 2.7, 4.3, 4.4, 5.21, 7.1, 7.6

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Industry and Employment) 2021, s 3.6; Sch 5

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.7, 2.8, 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119

Category:

Principal judgment

Parties:

Stevens Holdings Pty Limited (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
D Tyrrell (Applicant)
S Simington (Respondent)

Solicitors:
Tyrells Planning Law (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2024/207814

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal of DA/2270/2023 by Central Coast Council lodged on 28 December 2023. This appeal concerns a development application for a light industrial development comprising 22 units and associated works at 96 The Entrance Road, Erina (Lot 22, DP1278847).

2. The proposal also seeks consent for construction of 22 light industrial units ranging in size from 31m² to 143m². Development involves civil works including earthworks, service infrastructure and a driveway and 37 carparks and landscaping.

3. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

Conciliation and agreement between the parties

4. 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 21 October 2024. I presided over the conciliation conference. In the course of the conciliation conference, the parties came to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. The terms of the agreement between the parties involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

6. As part of this agreement the Council agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), to the applicant amending the development application. These amendments included a revision of plans and material referred to at paragraph 1 of the s 34 agreement between the parties.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions.

Jurisdiction

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application, however there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites they saw as of relevance in these proceedings and explained how they have been satisfied. Mindful of this advice I make the following findings in relation to jurisdiction.

9. I accept the parties’ advice that Central Coast Local Environmental Plan 2022 (CCLEP) applies to the site. Light Industrial development is permissible with consent under cl 2.1.

10. The site is zoned E4 General Industrial. The proposed development is permissible under this zone.

11. Clause 2.3 of the CCLEP indicates that regard must be had to the zone objectives when determining the development application. The zone objectives for the E4 General Industrial are:

•  To provide a range of industrial, warehouse, logistics and related land uses.

•  To ensure the efficient and viable use of land for industrial uses.

•  To minimise any adverse effect of industry on other land uses.

•  To encourage employment opportunities.

•  To enable limited non-industrial land uses that provide facilities and services to meet the needs of businesses and workers.

•  To ensure that retail, commercial or service land uses in industrial areas are of an ancillary nature.

•  To support and protect industrial land for industrial uses.

12. I am satisfied that the parties have demonstrated that the proposed development, as amended, is compatible with the E4 General Industrial objectives.

13. Clause 5.21 of the CCLEP indicates that regard must be had to the impact of the development on projected changes to flood behaviour as a result of climate change, the intended design and scale of buildings resulting from the development, whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood, and the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion. The development footprint is located outside the areas identified as flood prone, the Finished Floor Level for the proposed buildings have been set at a minimum RL3.20m AHD, being the flood planning level. I am satisfied the Statement of Environmental Effects by Gyde dated 4 November 2024 (SEE) has considered these flood planning requirements.

14. Pursuant to cl 4.3 of the CCLEP, the site is not subject to a maximum building height control. The proposal has a maximum height of 8.3m and therefore complies with this development standard which does not provide any maximum. I am satisfied the SEE has considered these height requirements.

15. For the purposes of cl 4.4 of the CCLEP, the site is not subject to a maximum floor space ratio (FSR). The proposed FSR is 0.62:1 and therefore complies with this development standard which does not provide any maximum. I am satisfied the SEE has considered these FSR requirements.

16. The provisions of cl 7.1 of the CCLEP that apply to the proposed development are as follows:

1. Class 2:

1. Works below the natural ground surface.

2. Works by which the water table is likely to be lowered.

2. Class 5:

1. Works within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5m AHD and by which the water table is likely to be lowered below 1m AHD on adjacent Class 1, 2, 3 or 4 land.

17. The project area is within 500m of Class 2 Acid Sulfate Soils. The parties agree that the Acid Sulfate Soil Management Plan dated 4 November 2024 prepared by EP Risk for the works and provided to the consent authority thoroughly addresses this contention. Based on the results of the assessment, it is considered that there is likely to be limited acid sulfate soil disturbance. The parties agree that the acid sulfate soils can be readily managed and would not preclude approval of the proposed development. I am satisfied the Acid Sulfate Soil Management Plan dated 4 November 2024 prepared by EP Risk has considered these requirements.

18. Clause 7.6 of the CCLEP requires that development consent must not be granted to development unless the consent authority is satisfied that all of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required—

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.

19. I am satisfied that the essential services for the development are available or adequate arrangements have been made to make them available when required, as addressed in the SEE.

State Environmental Planning Policy (Resilience and Hazards) 2021

20. Chapter 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPPR&H) applies, s 2.7(2) provides that a development is declared designated development if development is carried out on the mapped area, unless it is for the purpose of environmental protection works. I am satisfied the only proposed development in the mapped area can be correctly characterised as “environmental protection works” pursuant to subss 2.7(2) and (3). This conclusion exempts this aspect of the development to be characterised as designated development under s 2.7 of the SEPPR&H.

21. Section 4.6(1) SEPPR&H requires the consideration of whether the land is contaminated. I am satisfied that the Preliminary Site Investigation prepared by EP Risk dated 4 November 2024 has adequately considered these requirements.

22. Section 2.7(4) of the SEPPR&H requires that sufficient measures have been, or will be taken to protect, and where possible enhance, the biophysical, hydrological and ecological integrity of the coastal wetland or littoral rainforest. I am satisfied that the environmental protection works which are identified in the Ecological Restoration Plan prepared by AEP dated 21 November 2024 satisfies these requirements.

23. Section 2.8 of the SEPPR&H requires satisfaction that the proposed development will not significantly impact on the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest. While works are proposed on land identified as “proximity area for coastal wetlands”, the parties agree, and I am satisfied by information provided in the Ecological Assessment Report prepared by AEP dated 9 April 2024 that the works will not result in any significant impacts to the adjoining Coastal Wetlands area.

State Environmental Planning Policy (Transport and Infrastructure) 2021

24. Section 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPPT&I) requires consent to development on land that has a frontage to a classified road only if the consent authority is satisfied that where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of the design of the vehicular access to the land, or the emission of smoke or dust from the development, or the nature, volume or frequency of vehicles using the classified road to gain access to the land, and the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

25. The proposed application maintains the approved driveway and access for all lots via the Central Coast Highway, however, the subject site does not have frontage to the classified road. I am satisfied that the driveway and access arrangements as addressed in the SEE.

State Environmental Planning Policy (Industry and Employment) 2021

26. Section 3.6 of the State Environmental Planning Policy (Industry and Employment) 2021 (SEPP I&E) requires that the signage satisfies the assessment criteria specified in Sch 5. I am satisfied that the requirements have been met on the basis of the details provided in the SEE.

Public interest

27. I note and accept the parties’ advice that the development application was notified in accordance with the EPA Act. No submissions were received and that as addressed in the SEE consideration has been given to the public interest.

Owner’s Consent

28. As provided in the SEE, the development application was made with the written consent of the owner of the subject site.

Conclusion

29. Having reached the state of satisfaction that the decision is one that the Court could make in the proper 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)). The orders I make below have this effect.

30. 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.

31. The Court notes that:

1. The Central Coast Council, as the relevant consent authority, has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending development application DA/2270/2023 to rely upon the plans and documents in Condition 1 of Annexure A.

32. The Court orders that:

1. The appeal is upheld.

2. Development application DA/2270/2023 as amended, for the light industrial development comprising 22 units and associated works at the Site, is determined by the grant of development consent subject to the conditions included at Annexure A.

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, as agreed or assessed.

P Nichols

Acting Commissioner of the Court

Annexure A

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Decision last updated: 28 January 2025