Land and Environment Court New South Wales Medium Neutral Citation: Carantinos v Central Coast Council [2020] NSWLEC 1469 Hearing dates: Conciliation held on 24 September 2020 Date of orders: 07 October 2020 Decision date: 07 October 2020 Jurisdiction: Class 1 Before: Bish C Decision: Refer to Orders at [16] Catchwords: DEVELOPMENT APPLICATION – retaining wall with excavation and filling – flood management – conciliation conference – agreement between the parties – orders Legislation Cited: Biodiversity Conservation (Savings and Transition) Regulation 2017 Environmental Planning and Assessment Act 1979 Gosford Local Environmental Plan 2014 Land and Environment Court Act 1979 Texts Cited: Gosford Development Control Plan 2013 Category: Principal judgment Parties: Anthony Carantinos (Applicant) Central Coast Council (Respondent) Representation: Counsel: J Smith (Applicant) S Simington (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2019/250382 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against actual refusal of Development Application (DA) 53763/2018 by Central Coast Council (hereafter the Council), which as amended, seeks filling, excavation and construction of a retaining wall on Lot 342 DP 755227, also known as 82 Dwyer Street, North Gosford (hereafter the site). 2. This Class 1 appeal is made under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 24 September 2020. I presided over the conciliation conference by MS Teams, as agreed by the parties, without a site visit. There were no objectors whom made submission at this conciliation. 4. During the conciliation, the applicant sought to amend the DA to delete the demolition of the existing dwelling. Leave is granted to rely on the amended DA, with no opposition from the respondent. 5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Court and to the parties. An adjournment of the conciliation was agreed to by the parties to allow the applicant to further amend plans supporting the DA consistent with the additional flood modelling. The Court grants leave to rely on these amended plans, with no opposition from the respondent. The parties agree that based on the amended DA before the Court under appeal there are no works proposed beyond the site. 6. This decision of the parties is to uphold the amended DA under appeal and grant consent to DA 53763/2018, as agreed by the parties and that the Class 1 Application now relies upon. 7. 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 exercising its function under s 4.15(1) of the EPA Act to grant consent to DA 53763/2018, with conditions. 8. The parties identified the jurisdictional prerequisites of relevance in these proceedings, pursuant to consideration under ss 4.14 and 4.15(1) of the EPA Act, as: Biodiversity Conservation (Savings and Transition) Regulation 2017 (BC Reg); Gosford Local Environmental Plan 2014 (GLEP); and Gosford Development Control Plan 2013 (GDCP). 9. The parties agree that the ecological assessment that supports the DA, together with the conditions of consent will not result in significant impact to any threatened species or communities. They accept that the requirements of the BC Reg, specifically relating to cl 27 as contended, are satisfied. 10. The site is located on bushfire prone land. The parties agree that the bushfire threat assessment that supports the DA satisfies the requirements of s 4.14 of the EPA Act. The NSW Office of Water was notified, whom provided General Terms of Approval (GTA) for the proposed development. Conditions attached to their GTA are included in the conditions of consent. 11. The parties agree that the amended plans, together with the additional flood modelling that supports the DA and conditions of consent satisfies the requirements of the GLEP, and specifically addressing cll 7.1 and 7.2 as raised in contention. The parties explain that the relevant requirements of the GLEP are satisfied, by the supporting documents and conditions of consent, to grant consent to the amended DA, as sought under this appeal. The parties agree that the amended DA, with deletion of the removal of the existing dwelling has addressed any potential permissibility issues as raised by Council in contention. 12. The parties agree that the requirements of the GDCP, specifically those in contention that relate to flood management, are satisfied by the amended DA. Based on the supporting documents assessed under this appeal, the contentions that relate to the controls of the GDCP are resolved to the satisfaction of the parties. The parties agree that the DA was notified pursuant to GDCP requirement, and one submission in objection was received. 13. The parties advise the Court that they have undertaken a merit assessment of the amended amended DA which has resolved the contentions and any relevant issues raised by the objector. 14. I am therefore satisfied that there are no jurisdictional impediments to this agreement and that DA 53763/2018 should be granted with conditions, as it satisfies the requirements of ss 4.14 and 4.15(1) of the EPA Act. 15. 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. 16. The Court orders that: 1. The Applicant is granted leave to amend development application DA53763/2018 to rely upon the following plans and documents: 1. Cover Sheet & Notes, Drawing No D1, Issue Q, dated 24 September 2020, 2. General Arrangement, Drawing No D2, Issue Q, dated 24 September 2020, 3. General Arrangement – Detail Plan, Drawing No D3, Issue Q, dated 24 September 2020, 4. Revised Site Sections Sheet 01, Drawing No D4, Issue Q, dated 24 September 2020, 5. Revised Site Sections Sheet 02, Drawing No D5, Issue Q, dated 24 September 2020, 6. Revised Site Sections Sheet 03, Drawing No D6, Issue Q, dated 24 September 2020, 7. Revised Site Sections Sheet 04, Drawing No D7, Issue Q, dated 24 September 2020, 8. Retaining Wall Details Sheet 01, Drawing No D8, Issue Q, dated 24 September 2020, 9. Flood Investigation Assessment for Proposed Residential Development, Version 4.0, dated 2 September 2020, 10. Addendum to Statement of Environmental Effects prepared by Minto Planning Services, dated 24 September 2020. 1. The Applicant is to pay the Respondent's costs thrown away as a consequence of the amendments pursuant to section 8.15(3) of the Environmental Planning & Assessment Act 1979 as agreed or assessed. 2. The appeal is upheld. 3. Development consent is granted to development application DA53763/2018 for the filling, excavation and construction of a retaining wall on land at 82 Dwyer Street, North Gosford (Lot 342 DP 755227), subject to the conditions of consent set out in Annexure 'A'. ………………………… S Bish Commissioner of the Court Annexure A (155987, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 October 2020