Vinogradov v Central Coast Council

[2023] NSWLEC 1731

Land and Environment Court

New South Wales

Medium Neutral Citation:

Vinogradov v Central Coast Council [2023] NSWLEC 1731

Hearing dates:

Conciliation conference held on 24 November 2023

Date of orders:

05 December 2023

Decision date:

05 December 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development Application DA/349/2023, which seeks the demolition of the existing structures and construction of a multi dwelling housing development, consisting of three dwellings, landscaping and associated works on Lot 113 Sec 1 in Deposited Plan 11935, also known as 102 Bay Road, Blue Bay, is determined by the grant of consent, subject to the conditions in Annexure A.

(3) The Applicant must pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed in the amount of $12,000 (ex GST).

Catchwords:

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

Legislation Cited:

Central Coast Local Environmental Plan 2022, cl 2.3

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

Environmental Planning and Assessment Regulation 2021, ss 23, 38

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, Ch 4, s 4.6

Texts Cited:

Central Coast Development Control Plan 2022

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 (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/152530

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application DA/349/2023 (the DA) by the Central Coast Council (the Council), which as amended, seeks demolition of existing structures, tree removal and the construction of multi-dwelling housing for three x two-storey dwellings with landscaping on Lot 113 Sec 1 in Deposited Plan 11935, also known as 102 Bay Road, Blue Bay (the site).

Background

2. The DA was lodged with Council on 24 February 2023. The Applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced without a site view and held before me as Duty Commissioner.

4. Prior to the conciliation, the Council agreed for the Applicant to amend the plans and documents that support the DA, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

5. Based on the amended application and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The issues raised by the objectors have also been considered in Council’s merit assessment. The agreed position of the parties, as described in their jurisdictional assessment, is for the Court to grant consent to the amended Development Application DA/349/2023, with conditions.

6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court making a determination under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, and other relevant jurisdictional requirements, to grant consent to DA/349/2023, subject to conditions in Annexure A.

Jurisdictional prerequisites

7. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically considered and are addressed:

1. Central Coast Local Environmental Plan 2022 (CCLEP):

1. Pursuant to cl 2.3 of the CCLEP, the proposed residential development is situated over land zoned R1 General Residential. The proposed development, as described to the Court, is permissible with consent. The amended DA addresses all the relevant objectives, aims, standards and requirements of the CCLEP.

2. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. Pursuant to Ch 4 of the SEPP Resilience, the contamination status of the site must be considered, prior to grant of consent. Based on the existing use of the site as residential, the Council has appropriately considered that the site is not contaminated, which together with the agreed conditions of consent to address any unexpected finds, satisfy the relevant requirements of s 4.6.

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

1. A BASIX Certificate (1367402M_03), issued on 16 October 2023 is relevant to the proposed development, as amended, and is identified in the conditions of consent.

4. Central Coast Development Control Plan 2022 (CCDCP):

1. The original DA was publicly notified in accordance with the CCDCP, with twelve submissions received. The relevant requirements of the CCDCP have been considered in Council’s merit assessment and are generally complied with, based on the amended plans and supporting documents to the amended DA, and as described in the agreed conditions of consent.

8. Pursuant to s 23 of the EPA Reg, the application has satisfied the Court with the provision of consent from relevant landowner.

Grant of consent

9. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

10. The Council has undertaken the appropriate merit assessment of the proposed development. The Court is advised that the issues raised in contention have been addressed by the amendments made to the application.

11. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA/349/2023 should be granted consent.

12. 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.

13. The Court notes that:

1. Central Coast Council, as the relevant consent authority, has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA/349/2023 as follows:

Document	Issue/Rev	Author	Date
Architectural Plans
DA000 COVER PAGE DA010 SITE ANALYSIS PLAN DA020 DEMOLITION PLAN DA030 SITE PLAN DA035 SITE COVERAGE PLAN DA040 PERSPECTIVES DA100 GROUND FLOOR DA110 FIRST FLOOR DA150 ROOF PLAN DA300 ELEVATIONS DA301 ELEVATIONS DA350 EXTERNAL FINISHES DA400 SECTIONS DA900 EXTERNAL SHADOW DIAGRAMS DA901 EXTERNAL SHADOW DIAGRAMS DA960 SEDIMENT CONTROL	B	ELK Designs	13 October 2023
Landscape Plans
1 of 3 Site Analysis Plan 2 of 3 Landscape Plan 3 of 3 Specification Plan	JK’s Garden Creations and Tolero Landscape Design	14 October 2023
Civil Plans
Sedimentation and Erosion Control Plan – C01	3	MPC Consulting Engineers	13 October 21023
Sedimentation and Erosion Control Details – C02	3
Stormwater Plan – C03	3
Stormwater Details – C04	3
Pre-developed Site Catchment Plans – C05	3
Post-developed Site Catchment Plan – C06	3
Turning Path Entry Plan Sheet 1 – T01	4
Turning Path Entry Plan Sheet 2 – T02	4
Turning Path Exit Plan Sheet 1 – T03	4
Turning Path Exit Plan Sheet 1 – T04	2
BASIX
BASIX Certificate 1367402M_03	Building Sustainability Assessments	16 October 2023

2. The Applicant has filed the amendments to the Development Application DA/349/2023 with the Court on 17 and 24 November 2023.

14. The Court orders that:

1. The appeal is upheld.

2. Development Application DA/349/2023, which seeks the demolition of the existing structures and construction of a multi dwelling housing development, consisting of three dwellings, landscaping and associated works on Lot 113 Sec 1 in Deposited Plan 11935, also known as 102 Bay Road, Blue Bay, is determined by the grant of consent, subject to the conditions in Annexure A.

3. The Applicant must pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed in the amount of $12,000 (ex GST).

Sarah Bish

Commissioner of the Court

Annexure A

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Decision last updated: 05 December 2023