Thomas v Central Coast Council

[2020] NSWLEC 1666

Land and Environment Court

New South Wales

Medium Neutral Citation:

Thomas v Central Coast Council [2020] NSWLEC 1666

Hearing dates:

Conciliation conference on 19 November 2020, 7 and 14 December 2020

Date of orders:

21 December 2020

Decision date:

21 December 2020

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

The Court orders:

(1) Leave is granted to the applicant to amend Development Application No. DA/288/2018 to rely on the following:

(a) Plan of Management Short Term Rental Accommodation – 18 Soldiers Point Drive Norah Head dated December 2020; and

(b) House Rules – Short-term accommodation – 18 Soldiers Point Drive Norah Head dated December 2020.

(2) The appeal is upheld.

(3) Development Application No. DA/288/2018 for an additional use of the existing dwelling for the purposes of short-term rental accommodation is approved subject to the Conditions of Consent which are annexed hereto and marked “A”.

Catchwords:

DEVELOPMENT APPLICATION – short term rental accommodation – conciliation conference – agreement between the parties – orders

Legislation Cited:

Draft State Environmental Planning Policy (Short Term Rental Accommodation)

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Rural Fires Act 1997

State Environmental Planning Policy No 71—Coastal Protection

Wyong Local Environmental Plan 2013

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020)

Category:

Principal judgment

Parties:

Michelle Thomas (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
P Wright (Solicitor) (Applicant)
L Nurpuri (Respondent)

Solicitors:
PJ Donnellan & Co (Applicant)
Central Coast Council (Respondent)

File Number(s):

2019/230842

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Central Coast Council (Council) of development application, DA/288/2018 (the DA). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 701.9m² parcel of land referred to as Lot 3 in Section 3 DP 758779 at 18 Soldiers Point Drive, Norah Head (the site). The DA, as originally lodged with the Council on 21 March 2018, sought consent for an additional use of the existing dwelling house located on the site for the purpose of short-term rental accommodation. The DA did not involve any alterations or additions to the dwelling.

3. The DA was exhibited for a 14-day period between 12 – 27 April 2018. Five submissions by way of objection and a petition with 230 signatures were received. On 29 January 2019 the Council refused the DA.

4. The Applicant filed the Class 1 Application with the Court on 26 July 2019, and Council filed its Statement of Facts and Contentions (SOFC) on 18 October 2019. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. The s34 conciliation conference, at which I presided, was held on 19 November 2020, 7 and 14 December 2020.

5. On 19 November 2020, the conciliation conference commenced with a view of the site. Due to the Court’s COVID-19 Pandemic Arrangements Policy (March 2020) restrictions in place at the time, and as agreed between the parties, no oral submissions were made on-site by members of the public. Oral submissions, however, from two local residents, were given via Microsoft Teams after the site view and before commencement of the without prejudice discussions.

6. As a result of the discussions at the conciliation conference, the parties reached an agreement involving approval of the DA, subject to an agreed set of conditions. The resultant final s34 agreement and conditions was filed with the Court on 17 December 2020. A revised Plan of Management and revised “House Rules” for the short-term rental accommodation, both dated December 2020, as referred to in the s34 agreement, was filed on 15 December 2020.

7. The agreement reached between the parties involved the Court upholding the appeal and granting development consent, subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional matters of relevance in these proceedings. I have formed the opinion that the relevant jurisdictional matters identified have been satisfied for the reasons set out in paragraphs 8 to 12 below.

8. The Wyong Local Environmental Plan 2013 (WLEP) is the relevant local planning instrument applying to the site. I am satisfied that the development is for the purposes of “short-term rental accommodation” as defined in the dictionary at the end of the WLEP, that this is a use permissible with consent in the R2 Low Density Residential Zone (R2 Zone) applying to the site, that the development meets the objectives of the R2 Zone found in the Land Use Table at Part 2 of the WLEP, and is development to which cl 7.18 of the WLEP applies.

9. Clause 7.18 of the WLEP provides that development consent may be granted for short-term rental accommodation “for the use of a dwelling containing up to 6 bedrooms”. The subject dwelling on the site contains 5 bedrooms.

10. Under the provisions of the Rural Fires Act 1997 the proposed development is classified as a special fire protection purpose. The DA was referred to the New South Wales Rural Fire Service who granted a Bushfire Safety Authority on 3 September 2018.

11. At the time the DA was lodged State Environmental Planning Policy No 71—Coastal Protection (SEPP 71) applied to the land. Under the provisions of cll 7 and 8 of SEPP 71 certain matters must be taken into consideration when determining a development application to which SEPP 71 applies. The parties have advised the subject proposal does not offend the matters for consideration in cl 8 of SEPP 71.

12. The application is subject to consideration of the publicly exhibited draft planning instrument Draft State Environmental Planning Policy (Short-term Rental Accommodation) 2019 (draft short-term rental accommodation SEPP). The proposal is not inconsistent with the draft short-term rental accommodation SEPP.

13. 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.

14. The Court orders:

1. Leave is granted to the applicant to amend Development Application No. DA/288/2018 to rely on the following:

1. Plan of Management Short Term Rental Accommodation – 18 Soldiers Point Drive Norah Head dated December 2020; and

2. House Rules – Short-term accommodation – 18 Soldiers Point Drive Norah Head dated December 2020.

2. The appeal is upheld.

3. Development Application No. DA/288/2018 for an additional use of the existing dwelling for the purposes of short-term rental accommodation is approved subject to the Conditions of Consent which are annexed hereto and marked “A”.

………………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (125903, pdf)

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Decision last updated: 21 December 2020