Vinogradov v Central Coast Council

[2023] NSWLEC 1785

Land and Environment Court

New South Wales

Medium Neutral Citation:

Vinogradov v Central Coast Council [2023] NSWLEC 1785

Hearing dates:

Conciliation conference on 15 December 2023

Date of orders:

21 December 2023

Decision date:

21 December 2023

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The Applicant to pay those costs of the consent authority 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).

(2)   The appeal is upheld.

(3)   Development consent is granted to development application DA/3526/2022, for the demolition of existing structures and the construction of three, 2-storey units, including associated landscaping, at Lot D in DP 311487, also known as 34 Picnic Parade, Ettalong Beach, subject to the conditions of consent at Annexure B.

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 4.6

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

Central Coast Local Environmental Plan 2022, cll 2.3, 2.7, 7.6

Category:

Principal judgment

Parties:

Andrey Vinogradov (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
R Byrd (Solicitor) (Applicant)
S Simington (Solicitor) (Respondent)

Solicitors:
PJ Donnellan and Co (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/155066

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, relate to an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the respondent’s deemed refusal of Development Application No DA/3526/2022 (DA). The DA seeks consent for the demolition of all existing structures on the site, and construction of three multi dwelling houses at 34 Picnic Parade, Ettalong Beach being Lot D in Deposited Plan 311487 (site).

Conciliation and agreement between the parties

2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 15 December 2023. I presided over the conciliation conference.

3. Prior to the conciliation conference, the parties filed an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal, subject to certain amendments to the DA, and granting consent 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 the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

Jurisdiction

5. The parties’ decision involves the Court exercising the consent authority 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. The parties provided the Court with an agreed jurisdictional statement on 4 December 2023. In regard to jurisdiction and having regard to this statement, I find as follows:

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards)

6. In regard to Ch 2 (concerned with coastal management) I accept the parties’ advice that the site falls within a coastal environment area. Having regard to the proposal’s siting within a coastal environment area, I have considered the matters at subs 2.10(1) with, during conciliation, the parties taking me through each of the particulars (subss 2.10(1)(a)-(g)) and indicating the relevance of the individual matters and how they have been given consideration. With this background information and the direct advice of the parties, in regard to subs 2.10(2)(a), I am satisfied the development is designed, sited and will be managed to avoid an adverse impact referred to in subs 2.10(1). In this instance the matters at subss 2.10(2)(b)-(c) do not require any findings.

7. In regard to Ch 4 (concerned with remediation of land) and cl 4.6(1), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is, or will be made to be, suitable for the development. I am advised by the parties that there is no reason to believe that the site may be contaminated, the reasoning is essentially based on the site’s long term history of residential use, a use which would continue with this proposal. On this basis, I too am satisfied that the requirements of Ch 4 are met. I also note there is no proposed change in the general nature of the use of the site.

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

8. Pursuant to SEPP BASIX and the Environmental Planning and Assessment Regulation 2021, the proposal is a BASIX affected development, containing a BASIX affected building. The DA was accompanied by a BASIX certificate and I am advised that the applicant has provided an amended BASIX Certificate in line with plan amendments.

Central Coast Local Environmental Plan 2022 (CCLEP)

9. The development is permitted with consent within the subject R1 General Residential zone. Demolition is also permissible with consent under cl 2.7. I have had regard to the zone objectives as required under cl 2.3(2). The parties advise that the proposal would not breach any development standards.

10. Under cl 7.6, there is a requirement for satisfaction that nominated essential services are available or that adequate arrangements have been made to make them available when required. The parties advise that this is so, and I am satisfied in that regard, noting the site as located within an established and serviced residential area.

11. I accept the advice of the parties that no further jurisdictional findings are required in relation to CCLEP in relation to the question of jurisdiction.

Other provisions of s 4.15(1) of the EPA Act

12. In relation to s 4.15(1)(d), I note that there were a considerable number of objections forwarded to Council following the proposal’s notification. During the conciliation conference, I had the opportunity to hear from the parties on the particulars of the objecting submissions and how there had been consideration to them, with some amendments to the proposal coming about as a consequence. I am satisfied that the jurisdictional requirement for consideration of these objecting submissions has been met.

Conclusion

13. Based on the above considerations, 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. It follows that I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

14. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that had been in dispute between the parties.

15. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation

16. The Court notes that Central Coast Council, 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/3526/2022 to include the amended plans identified in Annexure A.

17. The plans outlined in Annexure A were filed with the Court on 4 December 2023.

Orders

18. The Court orders:

1. The Applicant to pay those costs of the consent authority 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).

2. The appeal is upheld.

3. Development consent is granted to development application DA/3526/2022, for the demolition of existing structures and the construction of three, 2-storey units, including associated landscaping, at Lot D in DP 311487, also known as 34 Picnic Parade, Ettalong Beach, subject to the conditions of consent at Annexure B.

Peter Walsh

Commissioner of the Court

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Annexure A

Annexure B

Decision last updated: 21 December 2023