Vinogradov v Central Coast Council

[2023] NSWLEC 1690

Land and Environment Court

New South Wales

Medium Neutral Citation:

Vinogradov v Central Coast Council [2023] NSWLEC 1690

Hearing dates:

Conciliation conference on 6 October and 1 November 2023

Date of orders:

29 December 2023

Decision date:

29 December 2023

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The Applicant is granted leave to rely on the amended plans identified in Annexure A.

(2) The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $12,000.00 (ex GST).

(3) The appeal is upheld.

(4) Development consent is granted to development application DA/4367/2022 for the demolition of existing structures and the construction of 3 x 2-storey units, including associated landscaping, at Lot 492 of DP 10570, also known as 33 Burrawang Street, Ettalong Beach, subject to the conditions of consent at Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – multi-dwelling housing –agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2021, s 38

Central Coast Local Environmental Plan 2022, cll 4.3, 4.4, 7.1

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Resilience and Hazards) 2021, s 2.11, s 4.6, Ch 2

Category:

Principal judgment

Parties:

Andrey Vinogradov (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
R Byrd (Solicitor) (Applicant)
D Havadjia (Solicitor) (Respondent)

Solicitors:
P J Donnellan & Co Solicitors (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/154551

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as the result of the deemed refusal, by Central Coast Council of development application DA/4367/2022, which seeks approval for the demolition of all existing structures on the site, including the removal of 12 trees on the site plus 1 tree on an adjacent property, and for the construction of 3 multi-dwelling houses, within No 33 Burrawang Street, Ettalong Beach legally known as Lot 492 in DP 10570.

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 under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 6 October and 1 November 2023. I presided over the conciliation conference, after which the parties reached agreement as to the acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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, however there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied. From this I note the following points.

5. In the course of the conciliation the development application has been amended in response to the contentions raised by the Respondent. Principally, these amendments result in an increase to the building setback and subsequent changes to the private open space and general arrangement, and additional owner’s consent for tree works to the neighbouring property. It is this application, as amended (the proposed development), that is referred to in this judgment.

6. The development application has been made by the owner of the subject site, and owner’s consent for works to a single tree on the neighbouring site at 31 Burrawang Street, Ettalong Beach has been provided.

7. The development application was appropriately notified from 24 February to 17 March 2023, during which time 14 submissions were received. The parties submit, and I accept, that the relevant matters raised in these submissions have been adequately taken into consideration.

8. Pursuant to the Central Coast local Environmental Plan 2022 (CCLEP), the subject site is zoned R1 General Residential, within which development for the purpose of multi-dwelling housing is permitted with consent. The proposed development is consistent with the objectives of this zone.

9. Pursuant to CCLEP, the proposed development complies with the development standards of height (cl 4.3), with a maximum height of 7.8m, and floor space ratio (FSR) (cl 4.4) with an FSR of 0.5:1.

10. Pursuant to CCLEP cl 7.1, the site is mapped as containing Class 4 acid sulfate soils. However, as confirmed by the parties’ submission and the architectural drawings in the amended application, there will be no excavation more than 2m below the natural ground surface and the water table is not likely to be lowered more than 2m below the natural ground surface. Subsequently, in accordance with the provisions of cl 7.1, there is no requirement for an acid sulfate soils management plan.

11. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether the land is contaminated. Based on the information contained within the Statement of Environmental Effects (SEE) and the parties’ submission, I accept that the site has been historically used for residential purposes and there are no known actions that may have led to contamination of the subject site. Subsequently, I am satisfied that there is no evidence of contamination or potentially contaminated activities and that, pursuant to the requirements of s 4.6, the site is suitable for its intended purpose.

12. Chapter 2 of the SEPP Resilience and Hazards applies to the subject site as it is located within a Coastal Environment Area and the coastal use area. Accordingly, and pursuant to the provisions of s 2.11 the proposal will incorporate appropriate nutrient control measures in regards to stormwater, as demonstrated by the stormwater management plans. Subsequently, the parties submit, and I accept, that the proposed development will not have an impact on the coastal environment and is consistent with the requirements of Ch 2 of the SEPP Resilience and Hazards.

13. A BASIX certificate has been filed with the amended application in accordance with State Environmental Planning Policy (Building Sustainability Index) (BASIX) 2004.

14. 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.

15. As the parties’ decision is one 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.

16. The Court notes:

1. Central Coast Council, the Respondent, as the relevant consent authority has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending development application DA/4367/2022 to include the amended plans identified in Annexure A.

2. The plans outlined in Annexure A were filed with the court on the date of this agreement.

17. The Court orders:

1. The Applicant is granted leave to rely on the amended plans identified in Annexure A.

2. The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $12,000.00 (ex GST).

3. The appeal is upheld.

4. Development consent is granted to development application DA/4367/2022 for the demolition of existing structures and the construction of 3 x 2-storey units, including associated landscaping, at Lot 492 of DP 10570, also known as 33 Burrawang Street, Ettalong Beach, subject to the conditions of consent at Annexure B.

……………………….

E Washington

Acting Commissioner of the Court

Annexure A (109992, pdf)

Annexure B (334196, pdf)

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Decision last updated: 29 December 2023