Vicary Pty Ltd v Central Coast Council

[2025] NSWLEC 1003

Land and Environment Court

New South Wales

Medium Neutral Citation:

Vicary Pty Ltd v Central Coast Council [2025] NSWLEC 1003

Hearing dates:

Conciliation conference on 12 December 2024

Date of orders:

07 January 2025

Decision date:

07 January 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA2209/2023 for the demolition of existing structures and the erection of a New Dwelling House at Lot 8 in DP 12022, known as 75 Ocean View Drive, Wamberal.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – dwelling house – agreement between the parties – orders

Legislation Cited:

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

Coastal Management Act 2016, s 5

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

Central Coast Local Environmental Plan 2022, cll 2.7, 4.3, 7.1, 7.6

Environmental Planning and Assessment Regulation 2021, ss 27, 38

State Environmental Planning Policy (Resilience and Hazard) 2021, ss 2.10, 2.11, 2.12, 2.13

Category:

Principal judgment

Parties:

Vicary Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
T Poisel (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Tyrrells Planning Law (Applicant)
Central Coast Council (Respondent)

File Number(s):

2023/237002

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Central Coast Council, of development Application DA/2209/2023 which seeks consent for the demolition of existing structures and the erection of a new dwelling house at Lot 8 in DP 12022, known as 75 Ocean View Drive, Wamberal.

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

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 12 December 2024. I presided over the conference, at which the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting consent to the development application subject to conditions. As a result, the matter concluded in conciliation and did not proceed to a hearing.

4. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application to adequately address the Council’s contentions.

5. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified the in a jurisdictional note. From this I note the following points.

Jurisdictional matters

6. The development application was made with the written consent of the owner of the land.

7. The application was adequately notified from 2 to 18 December 2023. Fourteen submissions were received, and two residents made oral submissions at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions. In particular, I note that the parties are satisfied that the proposed development does not rely on a sea wall, and the visual impact of the proposed development from the street has been considered. The parties agree that the amended application does not necessitate renotification.

8. The subject site is zoned R2 Low Density Residential under the Central Coast Local Environmental Plan 2022 (CCLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

9. Demolition is permitted with consent pursuant to cl 2.7 of the CCLEP.

10. Pursuant to CCLEP cl 4.3, a maximum building height of 8.5m applies to the subject site which the proposed development, as amended, complies with.

11. Pursuant to CCLEP cl 7.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, however from the parties’ submission I accept that the proposed works are not likely to lower the water table below 1 metre Australian Height Datum on any adjacent Class 1, 2, 3 or 4 land.

12. Pursuant to CCLEP cl 7.6, the parties submit and I accept that the site is currently serviced by all listed essential services.

13. Pursuant to s 2.10 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), the site is mapped as within the coastal environment area. From the information contained in the Statement of Environmental Effects by Coastal Planning and Consulting, dated November 2023 (SEE) and the Coastal Engineering Advice report by Horton Coastal Engineering dated 8 November 2023, I accept that the matters listed in s 2.10(1) have been considered, and that as required by s 2.10(2) the proposal is appropriately designed and sited to avoid an adverse impact of the type referred to in s 2.10(1).

14. The site is also mapped as being within the coastal use area pursuant to s 2.11 of the Resilience and Hazards SEPP. Again from the parties’ submissions, the Coastal Engineering Advice and the information contained in the SEE, I accept that the matters listed in s 2.11(1) have been considered, and that as required by s 2.11(2) the proposal is designed and sited to avoid an adverse impact of the type referred to in s 2.11(1).

15. Pursuant to s 5 of the Coastal Management Act 2016, the site is located within the coastal zone. For the reasons given in the SEE and the Coastal Engineering Advice, I accept that the proposed development is not likely to increase the risk of coastal hazards on the subject site or any other land, as required by s 2.12 of the Resilience and Hazards SEPP.

16. No coastal management program applies to the site, and therefore s 2.13 of the Resilience and Hazards SEPP does not apply.

17. Section 4.6 of the Resilience and Hazards SEPP requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. The parties submit, and I accept, that there is no known contamination on the site nor any history of contaminating activities and that, subject to the agreed conditions of consent, the site is suitable for the intended, continued residential use.

18. Pursuant to s 27 of the EPA Regulation, a BASIX certificate that relates to the development as amended, accompanies the application. Compliance with this certificate is required under the agreed conditions of consent.

Conclusion

19. For these reasons, 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, and that I am therefore required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

20. The Court notes:

1. The respondent has agreed, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the applicant amending Development Application No DA/2270/2023 to rely on the following plans and documents:

Architectural Plans revision 5 prepared by PopovBass dated 6 November 2024
Plan No.	Plan Title
DA100	Title Page
DA101	Site Analysis Plan
DA102	Demolition Plan
DA103	Excavation Plan
DA104	Site Plan
DA105	Garage Floor Plan
DA106	Level 01 Plan
DA107	Level 02 Plan
DA108	Roof Plan
DA109	North Elevation
DA110	South Elevation
DA111	East Elevation
DA112	West Elevation
DA113	Section AA
DA114	Section BB
DA115	Schedule of External Finishes
DA116	Height Plane Diagram
DA117	Side Setback Diagram
DA118	Side Setback Diagram
DA119	Shadow Diagram: 9:00am June 21
DA120	Shadow Diagram: 12:00pm June 21
DA121	Shadow Diagram: 3:00pm June 21
DA122	Shadow Diagram: 9:00am March & September
DA123	Shadow Diagram: 12:00pm March & September
DA124	Shadow Diagram: 3:00pm March & September
DA125	Sun Eye View Diagrams
DA128	Site Plan Level 01
DA129	Site Plan Level 02
DA130	Sun Eye View Diagrams
DA131	Shadow Diagrams (P.O.S): 9:00am June 21
DA132	Shadow Diagrams (P.O.S): 10:00am June 21
DA133	Shadow Diagrams (P.O.S): 11:00am June 21
DA134	Shadow Diagrams (P.O.S): 12:00pm June 21
DA135	Shadow Diagrams (P.O.S): 1:00pm June 21
DA136	Shadow Diagram: 9:00am June 21
DA137	Shadow Diagram: 12:00pm June 21
DA138	Shadow Diagram: 3:00pm June 21
DA139	Shadow Diagram: 9:00am March & September
DA140	Shadow Diagram: 12:00pm March & September
DA141	Shadow Diagram: 3:00pm March & September
DA142	Section CC
DA143	Level 02 View Diagram
DA144	Site Plan Basement
Landscape Plan issue B prepared by Paul Scrivener Landscape dated 14 August 2024
Plan No.	Plan Title
1 of 4	Landscape Site Plan
2 of 4	Details planting plan
3 of 4	North & South Elevation
4 of 4	East & West Elevation
Concept Landscape Plan issue D prepared by Paul Scrivener Landscape dated 14 October 2024
1 of 4	Landscape site plan
2 of 4	Details planting plan
3 of 4	North & South Elevation
4 of 4	East & West Elevation
Survey Plan revision 04 prepared by Matthew Freeburn Surveyors dated 26 October 2022
Arboricultural Impact Appraisal and Method Statement – Revised prepared by Naturally trees dated 16 August 2024
Letter from Horton Coastal Engineering dated 15 August 2024
Letter from Horton Coastal Engineering dated 17 October 2024

Orders

21. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA2209/2023 for the demolition of existing structures and the erection of a new dwelling house at Lot 8 in DP 12022, known as 75 Ocean View Drive, Wamberal.

E Washington

Commissioner of the Court

Annexure A

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Decision last updated: 07 January 2025