Land and Environment Court New South Wales Medium Neutral Citation: Donnelly v Central Coast Council [2021] NSWLEC 1195 Hearing dates: Conciliation conference on 16 April 2021 Date of orders: 26 April 2021 Decision date: 26 April 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: Refer to orders at [9] Catchwords: DEVELOPMENT APPEAL – residential – first floor addition to an existing dual occupancy – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018 State Environmental Planning Policy No 55 – Remediation of Land Wyong Local Environmental Plan 2013 Texts Cited: Wyong Development Control Plan 2013 Category: Principal judgment Parties: Andrew Donnelly (Applicant) Central Coast Council (Respondent) Representation: Counsel: A Pickup (Solicitor) (Applicant) N Ikner (Solicitor) (Respondent) Solicitors: Pickup Legal (Applicant) Central Coast Council (Respondent) File Number(s): 2020/291150 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 - Residential Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the actual refusal of a development application number DA/484/2020 seeking development consent for the construction of a first floor addition to the rear dwelling of an existing dual occupancy (detached) development and also sought consent for the re-configuration of the ground floor layout and a pergola over the existing rear deck area (the Proposed Development) at 2/17 Shamrock Drive Berkeley Vale being Lot 2 in SP 43415 (the Site). The Applicant seeks leave to amend the Proposed Development seeking development consent for the construction of a first-floor addition to the rear dwelling of an existing dual occupancy (detached) development as set out in amended plans. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 16 April 2021. I have presided over the conciliation conference. 3. At the conciliation conference, 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 granting leave to rely on amended plans, upholding the appeal and granting development consent to the development application 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be matters in the Wyong Local Environmental Plan 2013 (WLEP), the Statement Environmental Planning Policy (Coastal Management) 2018 (Coastal SEPP), the State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and compliance with the statutory requirement to place the Proposed Development on public notification. 6. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed Jurisdictional Statement as follows: 1. In relation to the WLEP: 1. Pursuant to cl 7.1, The Site is identified as being affected by Acid Sulphate Soils – Class 3 and would require an Acid Sulphate Management Plan where works more than 1 metre below the natural ground surface are proposed. The Proposed Development is for a first-floor addition which is contained within the existing building footprint and no ground works are proposed. I agree with the Parties' submission that therefore an Acid Sulphate Management Plan is not required. 2. The first-floor addition will not be altering the existing building footprints on the Site. The existing buildings on the Site do not impact on the existing flood characteristics. I adopt this reason for the state of satisfaction required by cl 7.2(3) regarding flood planning. 3. Clause 7.9 provides that development consent must not be granted to development unless the consent authority is satisfied that the list services that are essential for the development are available for that adequate arrangements have been made to make them available when required. The Site is located in an existing residential area that is adequately serviced and the development will be utilising the existing services available to the Site. I accept and am satisfied that cl 7.9 is complied with. 1. The Site is located within a coastal environment area under the Coastal SEPP and development is required to be in accordance with clause 13. The proposal will not have an impact upon the coastal environment as it is contained within the existing building footprint on the Site. 2. Clause 7 of SEPP 55 requires a consent authority to consider the contamination and remediation of land when determining a development application. In relation to cl 7, the development does not propose a change of use and has been historically used for residential purposes. I have read the Statement of Environmental Effects filed with the Class 1 Application and note that at [3.2] titled "Site History" it states that "Development Consent DA/2229/90 was granted on 10 July 1990 for "the relocation of an existing dwelling house and construction as a dual occupancy associated with an existing dwelling house." It is for this reason that I am satisfied that contamination of the Site has been adequately considered and that as the Site has been used for residential purposes and no change to that use is proposed no further remediation action or investigation is required. 3. The DA is accompanied by a BASIX Certificate which can be approved as a condition of consent. 4. The original DA was placed on public notification between 12 June 2020 and 3 July 2020. No submissions were received objecting to the proposed development. 1. 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 at [6] in this judgment. 2. 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. 3. The Court orders that: 1. The Applicant is granted leave to amend its development application to rely upon the following plans: Drawing No. and Revision/Issue Title Prepared by Date Architectural plans 19/018, Rev C Sheet 1 of 5 Site Plan Pacific Design 20 December 2019 19/018, Rev C Sheet 2 of 5 Ground Floor Plan 20 December 2019 19/018, Rev C Sheet 3 of 5 First Floor Plan 20 December 2019 20 December 2019 19/018, Rev C Sheet 4 of 5 Northern and Western Elevation Plan 19/018, Rev C Sheet 5 of 5 Southern and Eastern Elevation Plan and Section AA 20 December 2019 1. The appeal is upheld. 2. Development Application No. DA-484/2020, for the construction of a first-floor addition to the rear dwelling of an existing dual occupancy (detached) development on Lot 2 in SP 43415 on land known as 2/17 Shamrock Drive, Berkeley Vale, is approved subject to the conditions at Annexure A. ………………………. E Espinosa Commissioner of the Court Annexure A (184327, 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: 26 April 2021