Vinogradov v Central Coast Council

[2023] NSWLEC 1675

Land and Environment Court

New South Wales

Medium Neutral Citation:

Vinogradov v Central Coast Council [2023] NSWLEC 1675

Hearing dates:

Conciliation conferences on 11 August and 14 September 2023

Date of orders:

10 November 2023

Decision date:

10 November 2023

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders:

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

(2) The appeal is upheld.

(3) Development Consent is granted to Development Application DA/185/2023 for the demolition of existing structures and the construction of three, 2-storey units, including associated landscaping at Lot 486 DP10570, also known as 21 Burrawang Street Ettalong Beach, subject to the conditions at Annexure B.

(4) The Applicant is 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 Act1979 in the agreed amount of $12,000.00 (ex GST).

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties - orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34A

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

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

Central Coast Local Environmental Plan 2022, cll 2.2, 4.3, 4.4, 7.1

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)
S Simington (Solicitor) (Respondent)

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

File Number(s):

2023/152496

Publication restriction:

No

Judgement

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA/185/2023 (the DA) for the demolition of existing structures and the construction of three 2-storey units, including associated landscaping at 21 Burrawang Street, Ettalong Beach.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 August and further adjourned to 14 September 2023. I presided over the conciliation conference, which commenced with a site inspection.

3. Three objectors attended the site inspection and made submissions.

4. At the conciliation conference following the on-site view, the parties reached 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 and granting development consent to the DA, subject to conditions.

5. Revised plans (dated 28 September 2023), constituting an amendment to the DA (the Amended Application), were prepared by the applicant following the conciliation conference and these revised plans form the basis of the s 34 agreement.

6. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows:

1. The DA was lodged by the Applicant who provided the written consent of the owner of the site.

2. The DA was notified for 21 days between 24 February and 17 March 2023. 13 submissions were received in response to that notification.

3. In relation to the provisions of the Central Coast Local Environmental Plan 2022 (CCLEP):

1. The site is zoned R1 – General Residential pursuant to the provisions of cl 2.2 of the CCLEP; and

1. the proposed development is permissible with consent in R1 – General Residential zone within which the subject site is located;

2. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out;

2. Pursuant to cl 4.3 of the CCLEP a maximum height of buildings (HOB) development standard of 8.5 m applies to the site; and

1. the Amended Application complies with the HOB development standard contained in the CCLEP;

3. Pursuant to cl 4.4 of the CCLEP a floor space ratio (FSR) development standard of 0.5:1 applies to the site; and

1. the Amended Application complies with the FSR development standard contained in the CCLEP;

4. The provisions of cl 7.1 of the CCLEP concern acid sulfate soils. The site is within an area mapped as containing class 4 acid sulfate soils; and

1. Clause 7.1 of the CCLEP requires that consent must not be granted for development on class 4 soil for works more than 2m below the natural ground surface or where the water table is likely to be lowered more than 2m below the natural ground surface without an acid sulfate soils management plan;

2. The parties submit that the Amended Application does not involve excavation more than 2m below ground level, and therefore, no plan is required under cl 7.1 of the CCLEP;

4. In relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 the applicant’s Amended Application is accompanied by an updated BASIX certificate (Certificate No 1366997M_03 prepared by Building Sustainability Assessments dated 29 September 2023) which is consistent with the Amended Application.

5. In relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP):

1. The parties had submitted, and I am satisfied, that the provisions of s 4.6 of the Resilience SEPP have been addressed in the Applicant’s Statement of Environmental Effects submitted with the DA, and have been considered and met;

6. The parties submit, and I am satisfied, that the provisions of the Central Coast Development Control Plan 2022 (the DCP) that apply to the Amended Application have been considered and found to be acceptable to the Respondent.

9. 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. I adopt the reasons given by the parties as set out in this judgment.

10. 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.

11. 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 were originally in dispute between the parties.

12. The Court notes:

1. 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/185/2023 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.

13. The Court orders:

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

2. The appeal is upheld.

3. Development Consent is granted to Development Application DA/185/2023 for the demolition of existing structures and the construction of three, 2-storey units, including associated landscaping at Lot 486 DP10570, also known as 21 Burrawang Street Ettalong Beach, subject to the conditions at Annexure B.

4. The Applicant is 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).

……………………….

G Kullen

Acting Commissioner of the Court

Annexure A (107865, pdf)

Annexure B (337323, pdf)

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Decision last updated: 10 November 2023