Zenith Tuggerah Pty Ltd v Central Coast Council

[2022] NSWLEC 1488

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zenith Tuggerah Pty Ltd v Central Coast Council [2022] NSWLEC 1488

Hearing dates:

28-30 March 2022 and 8 August 2022

Date of orders:

13 September 2022

Decision date:

13 September 2022

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1)  The appeal is dismissed.

(2)  Development Application 1249/2020 which, as amended, seeks demolition of existing structures, construction of a 53-room boarding house with parking on Lots 18, 19 and 20 DP 20723, also known as 2-6 Glen Road, Ourimbah is refused.

(3) The applicant is to pay the respondents costs thrown away as a result of the amendments of the application for development consent, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(4)  The exhibits are returned.

Catchwords:

DEVELOPMENT APPLICATION – boarding house –consistency with character and streetscape – significant tree protection – stormwater services

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 4.47, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Evidence Act 1995 No 25

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

Standard Instrument (Local Environmental Plans) Amendment (Miscellaneous) Order 2021, ss 6, 7

Standard Instrument (Local Environmental Plans) Order 2006, cl 8

State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 29, 30, 30A,

State Environmental Planning Policy (Housing) 2021, Sch 7A

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

Water Management Act 2000, s 91

Wyong Local Environmental Plan 2013, cll 1.2, 2.3, 7.9

Texts Cited:

AS/NZ 2890.2004 - Australian/New Zealand Standard for parking facilities – Part 1: Off-street parking

AS 2890.2:2018 - Australian Standard parking facilities – Part 2: Off-street commercial vehicle facilities

Central Coast Council - Civil Works Specification Design Guideline 2020

Ourimbah Area Strategy and Centre Master Plan 2022

Wyong Development Control Plan 2013

Category:

Principal judgment

Parties:

Zenith Tuggerah Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
J Lazarus SC (Applicant)
J Farrell (Respondent)

Solicitors:
Co Lab Law & Mediation (Applicant)
MBM Legal and Conveyancing (Respondent)

File Number(s):

2021/190026

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against deemed refusal of Development Application (DA) 1249/2020 by the Central Coast Council (the Council) which, as amended, seeks demolition of existing structures, construction of a 53-room boarding house with parking on Lots 18, 19 and 20 DP 20723, also known as 2-6 Glen Road, Ourimbah (the site).

2. For the reasons explained below, I am not satisfied that the proposed development, as amended, addresses the relevant jurisdictional and merit assessment requirements for the Court to determine to grant consent to the amended DA under appeal.

Background

3. The DA was submitted to Council on 25 November 2020 and internally reviewed. The original application was notified to residents and referred to various relevant authorities, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act), including the NSW Rural Fire Service (RFA), NSW Police Service and Department of Natural Resources Access Regulator (NRAR).

4. Council also referred the application to the Central Coast Local Planning Panel on 30 June 2020. The DA was subsequently amended before review by the Panel and remains undetermined by the Panel and Council.

5. The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the EPA Act.

6. On 3 December 2021, prior to the hearing, the Court (Registrar) granted leave to amend the DA based on the applicant’s Notice of Motion (NoM). The Court also granted leave for the respondent to amend their Statement of Facts and Contentions (SoFC), which was filed on 2 February 2022 (Exhibit 3).

7. Pursuant to s 34D of the Land and Environment Court Act 1979 (the LEC Act), the hearing commenced by request of the parties as a site view, with resident submissions and then proceeded via Microsoft Teams.

8. During the hearing, the applicant further sought by NoM, to amend plans that support the application, in response to expert conference. The Court granted leave to rely on these amended plans, without opposition of the respondent, after seeking a costs order, pursuant to s 8.15(3) of the EPA Act.

9. During the hearing, the applicant tendered a root mapping report, which the Court accepted as Exhibit H, overruling the respondents’ objection that it did not have the relevant expert available and that the document was not prepared consistent with the Court’s Practice Note or the Evidence Act 1995 No 25. I consider that the root mapping report directly responds to issues raised in the amended SoFC and expert evidence. I also find that the expert, Mr Kingdon, who prepared the report is relevantly qualified, as described in his CV attached to the expert report. However, to allow the respondent an opportunity to engage the relevant expert to review this evidence, and also for the parties to provide an amended arboricultural expert report in response, the hearing was adjourned by agreement of the parties.

10. During the adjournment of the hearing, on 14 June 2022 by NoM, the applicant filed amended stormwater plans, and was granted leave to rely on these plans by the Court, without opposition of the respondent.

11. With agreement of the respondent, the applicant was directed to upload the amended application to the NSW Planning Portal, pursuant to s 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

Proposed development

12. The amended application before the Court seeks to:

1. Demolish existing structures,

2. Construct a 53-room boarding house, including one room as a manager’s residence, 18 double rooms, 30 single rooms, plus 4 accessible rooms,

3. Undertake civil and drainage works,

4. Remove trees, retain two Tallowwood trees and provide landscaping; and

5. Construct parking for 25 vehicles with a waste enclosure, which is partially on a cantilevered structure over a watercourse.

13. As described to the Court, the amended application proposes:

• a building of up to three stories with a variable roof form, oriented in a north-south direction, and has its bulk form located within the eastern portion of the site, set back from the front boundary by ~6.5m (although with minor built form incursions);

• a ground floor at ~68m in length, with the remaining upper floors split into two blocks, between 28.8m to 30.5m in length, with a separation between the blocks up to 11.3m;

• a number of boarding rooms facing towards the east (towards rear of Ourimbah shops) with a landscaped setback up to 6m in depth, and the remaining boarding rooms facing towards the west (being the carpark), with minimal landscaping;

• a hardstand (carpark) area generally at grade that covers the majority of the western portion of the site up to and along the (western) boundary, that is cantilevered above the existing watercourse in the south-western edge of the site;

• a waste (bin) enclosure elevated on the cantilevered structure in the south-west corner (front) of the site; and

• a watercourse, which is currently unformed, to be channelised and partially enclosed, with a culvert at the front of site adjacent to Glen Road

• retention of two existing Tallowwood trees, located within the front site boundary and on Council’s verge.

The contentions before the Court in consideration of the amended application

14. Based on the amended application, the respondent has identified the primary contentions remaining as being:

• incompatibility and inconsistency with the local area character, streetscape, and a zone objective, and

• inadequate landscaping and potential for impact to two existing Tallowwood trees at the front of the site.

15. Based on the amendments made to the DA, agreed conditions of consent and expert evidence, the other contentions raised in the amended SoFC have been resolved to the satisfaction of the respondent.

The Site

16. The site is an irregular, triangular shape, located adjacent to single level residential dwellings along Glen Road, and commercial buildings/shops, which form part of Ourimbah local centre along the Pacific Highway.

17. The site fronts directly to Glen Road for a length of 47m, which forms the southern boundary. The northern, eastern, and western boundaries are 27.4m, 79.5m and 81.4m in length, respectively. The total area of the site is 2,966m².

18. An unnamed watercourse, which is an unlined and vegetated channel, traverses along the western boundary of the site. The watercourse primarily directs stormwater flow towards Glen Road in the south-western corner of the site, which is then directed in an easterly direction to the Pacific Highway along an unlined drainage channel within the verge.

Relevant Planning Controls

19. The site is identified as being on ‘bushfire prone’ land. Satisfaction of s 4.14 of the EPA Act is therefore a requirement to grant consent on the site. The amended DA is supported by a Bushfire Hazard Assessment Report and the conditions of consent identify the required bushfire protection measures. The Rural Fire Service (RFS) have provided General Terms of Approval (GTA’s), pursuant to s 100B of the Rural Fires Act 1997, which are adopted in the agreed draft conditions of consent. I am satisfied that the relevant provisions of the Rural Fires Act 1997 and s 4.14 of the EPA Act are addressed.

20. The requirements of s 4.15 of the EPA Act are also relevant for the Court’s consideration to grant consent to the DA under appeal, as described below:

4.15 Evaluation (cf previous s 79C)

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

21. Pursuant to s 4.46 of EPA Act, the application is an integrated development due to being bushfire prone and affected by a watercourse. The response received from relevant authorities to the original DA are adopted in the agreed draft conditions of consent, pursuant to s 4.47(3).

22. Works within the watercourse on the site, require a controlled activity approval, pursuant to s 91(2) of the Water Management Act 2000. I am satisfied that the agreed draft conditions of consent sufficiently address the requirements to obtain the relevant approval for works within the watercourse. It is noted that NRAR have not provided GTA’s for this application by the time of judgement.

23. Pursuant to cl 49 of the EPA Reg, the applicant has satisfied the Court with the provision of written consent from landowners for works proposed by the application.

24. Pursuant to cl 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience), the site must be deemed or capable of being made suitable for the proposed (residential) use with regards to contamination, prior to grant of consent. Based on the supporting documents to the amended DA and the described historical use of the site as residential, the Court is satisfied that the applicant has provided sufficient evidence, together with the agreed draft conditions of consent, to address the relevant requirements of the cl 4.6 of the SEPP Resilience.

25. The parties agree, and the Court concurs that the provisions of the State Environmental Planning Policy (Housing) 2021 are not relevant for consideration of the application before the Court, pursuant to the savings provision in Sch 7A.

26. As the proposed development is a boarding house, the provisions as set out in the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) are relevant for the Court’s consideration to grant consent, specifically reference is made to cll 29, 30 and 30A.

27. I accept the expert evidence that all the requirements of cl 29, except cl 29(2)(b) are sufficiently addressed by the amended application.

28. The parties are also satisfied, and the Court concurs, that the provisions in cl 30 of the SEPP ARH, which are standards that are determinative, are numerically addressed by the amended application.

29. To grant consent, the proposed development must also satisfy the character provision, as specified in cl 30A of the SEPP ARH below, which remains in contention:

30A Character of local area

A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

30. The site is zoned R1 General Residential, pursuant to cl 2.3 of the Wyong Local Environmental Plan 2013 (WLEP), and it is noted that this land adjoins R2 Low Density Residential and B2 Local Centre zones. The proposed development, as a boarding house, is permissible with consent in the (R1) zone, with the following objectives of the zone that must be satisfied to grant consent (objective 5 in italics remains in contention):

Zone R1 General Residential

1 Objectives of zone

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To promote “walkable” neighbourhoods.

• To ensure that development is compatible with the scale and character of the local area and complements the existing streetscape.

31. The Court notes, and the parties accept that the recent amendments to the definition of a boarding house in the WLEP, pursuant to ss 6 and 7 of the Standard Instrument (Local Environmental Plans) Amendment (Miscellaneous) Order 2021, are not relevant for consideration of this application, pursuant to the (savings) cl 8 in Standard Instrument (Local Environmental Plans) Order 2006.

32. The western boundary of the site is aligned along an existing watercourse, which directs stormwater drainage from the site and upstream catchment area, through an easement that burdens the (applicant) site to Council’s benefit. The easement for the existing stormwater drainage system provides an ‘essential service’, as described in cl 7.9 of the WLEP. The Court accepts the expert evidence that the proposed (cantilevered) structure over the easement will not impede essential stormwater services, and that the amended application satisfies the requirements of cl 7.9.

33. The Court accepts the expert assessment that the other relevant provisions of the WLEP are satisfied by the proposed development, as amended, except relating to objective (5) of the zone (in cl 2.3 above) and aims in cl 1.2(2)(h) of the WLEP, which remain in contention and are addressed below.

34. The Wyong Development Control Plan 2013 (WDCP) is relevant for consideration of the amended application before the Court, and the experts specifically reference Chapter 2.4 (multi-dwelling residential) in evidence.

35. The experts refer to the following documents in their evidence:

• Ourimbah Area Strategy and Centre Master Plan 2022 (the Masterplan),

• Australian/New Zealand Standard for parking facilities – Part 1: Off-street parking AS/NZ 2890.2004,

• Australian Standard parking facilities – Part 2: Off-street commercial vehicle facilities AS 2890.2:2018, and

• Civil Works Specification Design Guideline 2020, Central Coast Council.

Experts

36. The Court was provided with written and oral evidence from the following experts:

1. Planning and urban design – Messers Tim Shelley, Alan Cadogan and Nathan Burr, and Ms Tania Halbert.

2. Engineering – Mr Christopher Slater and Ms Michelle Gilson.

3. Hydrology – Messers Bruce Kenny and Andrew Dever

4. Landscaping/arboriculture – Messers Anton Conus, Russell Kingdon and Adrian Swain.

Resident submissions

37. In response to notification of the original application, made consistent with the requirements of the WDCP, the Council received 200 (resident) submissions, being 94 in objection and 106 in support. The respondent explained that the amended DA was not re-notified, as the amendments to the application were agreed to have reduced the environmental effect of the original DA.

38. The written submission of all objectors is tendered in Exhibit 1, which have been considered by the Court. It is noted that the submissions in support have not been provided to the Court.

39. In addition, at the start of the hearing, two residents provided oral submissions to the Court, summarised in Exhibit 9 and also considered by the Court.

Is the proposed development compatible with the character of the local area and does it complement the streetscape?

40. The primary contention of Council relates to whether the application, as amended, is compatible with the character of the local area, both existing and desired, future, and/or complements the existing streetscape, pursuant to cl 30A of the SEPP ARH and cl 2.3 of the WLEP.

41. The focus of this contention relates to the proposed cantilevered structure, in proximity to Glen Road and two Tallowwood trees, which is required for parking and waste services that support the (53 room) boarding house. The elevated structure is designed to ensure that (stormwater) flow is unimpeded through the existing watercourse. Council also contend that the height and length of the proposed boarding house is not characteristic.

42. It is noted that this contention is also a key issue raised by several objectors in their submissions.

43. The parties directed the Court through the relevant provisions of the SEPP ARH, WLEP and the WDCP to assess the character of the local area and streetscape. The relevant jurisdictional tests for the Court are specifically focused on cl 30A of the SEPP ARH and objective (5) in cl 2.3 (for R1 zone) in the WLEP, as described below:

30A Character of local area

A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

Zone R1 General Residential

1 Objectives of zone

…

• To ensure that development is compatible with the scale and character of the local area and complements the existing streetscape.

44. In assessment of the local area character, the experts refer to the recently released Masterplan, dated 22 March 2022, although they agree that this document should have limited weight in the Courts consideration due to its broad, strategic intent.

45. The experts agree that the local area should include the visual catchment, although do not agree on the areal extent for assessment of the local area or streetscape.

46. Based on my observations from the site view and evidence of the experts, I define the local area as being broadly consistent with the Masterplan boundary for Precinct 1, Section 4.2, Figure 4.2.1. I consider that the local area includes the residential dwellings around the site, and the commercial area near the site. I adopt the streetscape as including the area from Jaques Street, east along Glen Road to the Pacific Highway.

44. From my observations, I note that the residential dwellings around the site are generally single and double storey, detached on relatively large, landscaped lots. The adjoining commercial area has single and double storey, attached and detached buildings, some with attics. The front setback for the dwellings is vegetated, although the commercial area has extensive paved areas for driveways/parking.

45. The experts agree that the SEPP ARH, WLEP (and WDCP) do not provide any numeric height provisions for development on the site, and that the Floor Space Ratio (FSR) provision in cl 29(1) of the SEPP ARH have been achieved by the application. The experts also agree that the proposed three-storey development and length of the proposed building on the site does not contravene any development standards in the SEPP ARH or WLEP. I accept this evidence in consideration of local character and streetscape.

46. The key issues between the experts relates to the presentation/positioning of the proposed three-storey building form, and the areal extent of the elevated structures, particularly as viewed from Glen Road and the Pacific Highway.

47. In consideration of the ‘character’ of the local area, the Court must assess whether the proposed boarding house should reflect the character of the residential dwellings in the R1 and R2 zones, or commercial buildings in the B2 zones, or a combination of both these types of development. I consider that the proposed boarding house should be assessed against both the residential and commercial characteristics of the defined local area, noting that the application is a commercial development in a primarily residential setting. It therefore should seek to draw elements and inspiration from the differing uses in the local area.

48. The proposed landscaping, setbacks and building depth/articulation are all features that the parties draw the Court’s attention to in assessment of the local area character and streetscape, pursuant to cl 30A of the SEPP ARH, and objective (5) in cl 2.3 of the WLEP.

49. In evidence, Ms Halbert expressed concern that the proposed building form does not respond appropriately to the sloping topography of the site or adjoining land to the east (being the commercial shops) and will therefore be viewed from the Pacific Highway and Glen Road as bulky, because it is three stories, long length, with a dominant form.

50. Further to this, Mr Burr described the proposed landscaping in the front setback as being insufficient to effectively screen the cantilevered structure with a highly visible enclosed bin area, and that the proposed drainage works will likely dominate the streetscape at Glenn Road.

51. Mr Cadagon however considers that the proposed building form and elevated structures both complement the existing streetscape and are compatible with the character of the local area, including the existing and desired, future, consistent with the Masterplan.

52. I put minimal weight in my assessment to the Masterplan (Exhibit 2), except to note that the area of Precinct 1 corresponds with the ‘local area’ and that a boarding house on the site is not inconsistent with the Masterplan vision. The Masterplan for the Ourimbah Centre does seek in the future more ‘medium and higher density development’, which includes the site.

53. Together with the evidence submitted in this appeal, I also rely on my own (visual) observations of the local character and streetscape.

54. I find that the building form of the proposed boarding house itself is compatible with the character of the local area and complements the existing streetscape. A three-storey building, with the proposed length and location on the site is not uncharacteristic for the local area which includes the commercial area and will not be viewed adversely from residential dwellings along Glenn Road.

55. However, I find that the proposed extent, elevation, and proximity to the front boundary of the cantilevered portion of the parking area, which also includes an enclosed bin storage area is incompatible with the character of the local area and does not complement the existing streetscape. For reasons provided below, I find that the amended application therefore does not satisfy cl 30A of the SEPP ARH or objective (5) in cl 2.3 of the WLEP. I also find that the elevated structure does not satisfy aim (h) in cl 1.2 of the WLEP because it does not ‘maintain and enhance the existing character… of Wyong’.

56. The proposed cantilevered structure, as designed and located on the site will likely be highly visible when observed from Glen Road, the adjoining (western) property, as well as from the corner of Glen Road and the Pacific Highway. I assess that the existing front setbacks of residential dwellings along Glen Road, which forms a significant part of the local area and streetscape, are generally generous, with significant landscaping and minimal built form. Whilst I accept that the commercial developments along the Pacific Highway, which also form part of the defined local area, have significant concrete hardstand in the front setback, these commercial developments do not have elevated (hard stand) structures, as proposed by the application. There were no elevated (drainage) structures observed in the local area such as proposed by this application.

57. Due to the proposed size of the boarding house, specifically the number of rooms, on a constrained lot (due to the existing watercourse), and the requirement for associated services and structures that support the boarding house, being parking and waste management, this results in a development that is not suitable to the site. The amended application is an overdevelopment.

58. The surficial areal extent, projection and elevation of the cantilevered structure is a direct result of the (53 room) boarding house seeking to satisfy parking and waste management requirements, as specified in the SEPP ARH. Whilst the amended application does numerically satisfy the requirements of the SEPP ARH, cl 29(2)(e) for parking, it does so at the expense of landscaping and inappropriate positioning of structures on the site. The proposed development, whilst seeking to maximise economic yield does not adequately address the environmental constraint on the site, which is the watercourse.

59. The amended application has insufficient provision of landscaping along the western boundary of the site, and limited opportunity to landscape at the south-western corner of the site to effectively screen the bin enclosure and elevated structure from the street and adjoining (west) residence. The elevated structure projects too close to the front boundary.

60. I agree with Ms Gilson and Mr Dewar that the reliance of the amended application on the proposed landscaping is neither appropriate nor effective to screen the elevated structures from the street and the adjoining (western) property. There is insufficient area provided in the front and side setbacks. I am not sufficiently satisfied that the proposed landscaping addresses cl 29(2)(b) of the SEPP ARH. Landscaping should not be adopted primarily to shield the development from the street, but rather should complement the proposed development within the streetscape.

61. In addition, I find that based on the evidence of the engineering and arboriculture experts, the proposed location/design of the cantilevered structure has the potential to adversely impact on the two Tallowwood trees at the front of the site. The planning experts agree that these trees form part of the character of the local area and all experts, in evidence, agree that these trees should be retained and protected. I accept that the amended application seeks retention of these trees, however, I find that the proposed development does not provide sufficient certainty that these trees are capable of being protected. It is acknowledged in evidence of the experts that a significant portion of the tree protection zone for (Tallowwood) tree 2 could be adversely affected by the proposed stormwater structure.

62. Whilst I accept that the building itself and development on the eastern portion of the site is compatible with the character with the local area and complements the existing (and future) streetscape, I do not accept that the cantilevered structure (with elevated bin enclosure), located close to the front boundary are characteristic of the local area nor complement the (existing) streetscape. The proposed landscaping in the front setback is insufficient to address/shield this dominating structure located at the front of the site, and there is potential for loss of the Tallowwood trees , which would further add to the dominating view of the structure.

63. I accept Mr Farrell’s submission that the ‘proposed building is totally reliant on landscaping to shield impact from the public domain’. I also accept that the landscaping cannot be relied on to overcome the constraints of the site, being the existing Tallowwood trees and watercourse.

64. After consideration of the evidence, I am not satisfied that the amended application sufficiently addresses s 4.15(1)(a)(i), (b), (c) and (e) of the EPA Act. The proposed cantilevered structure does not satisfy the relevant provisions of cll 29(2)(b) or 30A of the SEPP ARH, or objective 5 of the R1 zone, as described in cl 2.3 of the WLEP. The cantilevered structure to accommodate the bin enclosure and parking, in its proposed location and design, is not suitable to the site, results in an overdevelopment and will likely cause visual amenity impacts within the streetscape and public domain. The proposed development is therefore not in the public interest.

Costs

68. The respondent seeks for the Court to make an order pursuant to s 8.15(3) of the EPA Act for the Council’s costs thrown away as a result of amendments to the DA during the course of the hearing. Section 8.15(3) of the EPA Act states:

(3) If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. This subsection does not apply to proceedings to which section 34AA of the Land and Environment Court Act 1979 applies.

69. As a consequence of the amended plans and documents, the respondent agreed that some issues in contention were addressed, however required further assessment by experts.

70. At the commencement of the hearing, the parties were of the view that based on the amended plans tendered at the start of the hearing and expert reports, many contentions as raised by Council were resolved.

71. It is agreed that the changes to plans and documents granted leave before and during the hearing were generally positive in resolving key contentions, resulted in a better outcome and as agreed by the experts, the amendments during the hearing were positive in context of the proposed development.

72. However, I agree with Council that the plan changes that amend that application and which the respondent seeks the Court to consider costs against, are not ‘minor’, and have caused the respondent’s experts to spend additional time in review and reporting, ultimately to the benefit of the applicant.

73. I find that an order for costs should be granted to the respondent, pursuant to s 8.15(3) of the EPA Act.

Conclusion

74. The proposed development has been assessed, based on the evidence before me, including the DA’s (amended) supporting plans, documents, agreed draft conditions of consent, expert reports and submissions from experts and residents.

75. In determining this application, I find that the amended application under appeal does not satisfy the requirements of the relevant instruments for assessment, namely the EPA Act, SEPP ARH and the WLEP. The reasons for my determination are principally that the proposed development: is incompatible with the character of the local area and does not complement the (existing) streetscape; is an overdevelopment and not suitable to the site; and is not in the public interest.

76. Therefore, I determine to refuse consent to DA 1249/2020, pursuant to s 4.16(1)(b) of the EPA Act.

Orders

77. The Court notes that:

1. The Central Coast Council, as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to amending the application for development consent (DA 1249/2020) and uploading to the NSW Planning Portal.

2. That the applicant has uploaded the documents that amend the application on the NSW Planning Portal.

3. That the applicant has filed with the Court the amended application, consistent with the documents uploaded to the NSW Planning Portal.

78. Consequently, the orders of the Court are as follows:

1. The appeal is dismissed.

2. Development Application 1249/2020 which, as amended, seeks demolition of existing structures, construction of a 53-room boarding house with parking on Lots 18, 19 and 20 DP 20723, also known as 2-6 Glen Road, Ourimbah is refused.

3. The applicant is to pay the respondents costs thrown away as a result of the amendments of the application for development consent, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

4. The exhibits are returned.

…………………….

Sarah Bish

Commissioner of the Court

**********

Decision last updated: 13 September 2022