Land and Environment Court New South Wales Medium Neutral Citation: Sandro Sardi v Central Coast Council [2021] NSWLEC 1238 Hearing dates: Conciliation conference on 19 April 2021 Date of orders: 12 May 2021 Decision date: 12 May 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) The Applicant is granted leave to rely upon the amended plans and documents contained at Annexure "A" to this Agreement. (2) The Applicant is granted leave to amend the description of the development application provided in its development application form for Development Application 53997/2018 lodged 16 March 2018 as follows: "Residential subdivision of 1 lot into 9 lots at 17-25 Fountains Road, Narara, NSW (Lot 1 DP 313904), including approval for the use of fill that was placed on the land without prior approval between 27 September 2017 and 24 July 2020." (3) The appeal is upheld. (4) Development Application 53997/2018 for the residential subdivision of one (1) lot into nine (9) lots at 17-25 Fountains Road, Narara, NSW (Lot 1 in DP 313904) and the use of fill that was placed on the land without prior approval between 27 September 2017 and 24 July 2020 (to the extent that use of this fill is authorised by the conditions of consent and the approved Remediation Action Plan prepared by EP Risk, dated 23 March 2021) is approved subject to the conditions set out in Annexure "B" to this agreement. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 77 Gosford Local Environmental Plan 2014, ss 2.3, 2.6 7.1, 7.2 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy No 55 -Remediation of Land, cll 7(1), 17, 18 Texts Cited: Gosford Development Control Plan 2013 Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (December 2020) NSW Acid Sulfate Soils Advisory Committee, New South Wales Acid Sulfate Soils Manual, 1998 Category: Principal judgment Parties: Sandro Sardi (Applicant) Central Coast Council (Respondent) Representation: Counsel: D Tyrrell (Solicitor) (Applicant) H Irish (Respondent) Solicitors: McKees Legal Solutions (Applicant) McCullough Robertson Lawyers (Respondent) File Number(s): 2019/280616 Publication restriction: No Judgment 1. COMMISSIONER: Sandro Sardi (the Applicant) has appealed the refusal by Central Coast Council (the Respondent) of his development application (DA53997/2018) seeking consent for the subdivision of land for staged residential development and associated civil construction works (the Proposed Development) at 17-25 Fountains Road, Narara (legally described as Lot 1 in DP313904) (the Subject Site). 2. The Subject Site is part zoned R2 Low Density Residential and part zoned E2 Environmental Conservation under the provisions of s 2.3 of Gosford Local Environmental Plan 2014 (GLEP). The Proposed Development is permissible with consent on the Subject Site. 3. The Applicant's development application (DA53997/2018) is made with the consent of the Applicant, Sandro Sardi, who is the sole Director of Easy Choice Properties Pty Ltd which is the owner of the Subject Site. 4. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act. 5. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 19 April 2021, and I presided over the conciliation conference. 6. The conciliation conference was convened in a manner consistent with the Court's COVID-19 Pandemic Arrangements Policy (the Policy). A site view was not undertaken at the commencement of the conciliation conference. 7. 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 upholding the appeal and granting consent to the Applicant's development application, subject to conditions. 8. 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. 9. There are jurisdictional matters that must be satisfied in order for the Court to have power to grant consent to the Proposed Development, and that these requirements have been satisfied as follows: 1. In relation to the provisions of State Environmental Planning Policy No 55 - Remediation of Land (SEPP55), the Parties have confirmed, and I am satisfied, that: 1. they have considered whether the Subject Site is contaminated; and 2. formed the view that parts of the Subject Site are contaminated and remediation of the Subject Site is required to render it suitable for the residential purpose for which the development is proposed to be carried out; and 3. concluded that through the implementation of the remediation and validation methodology outlined in the Remediation Action Plan provided by EP Risk dated 23 March 2021, the land will be rendered suitable for its proposed residential land use; and 4. the Parties have proposed further conditions of consent, including deferred commencement conditions which require that a Validation Report, Site Audit Report and Site Audit Statement that must be produced before the development consent commences in accordance with the requirements of cll 17 and 18 of SEPP55; 5. as required under the provisions of cl 7(1) of SEPP55, the Subject Site will be suitable for its proposed future residential use and use as a continuing club facility; 1. in relation to the provisions of GLEP, the Parties have confirmed, and I accept, that the Applicant's development application (as amended) satisfies all applicable provisions of GLEP, and where required, this satisfaction is supported through the imposition of conditions of consent within Annexure "B" to this judgment. In particular, the Parties have confirmed, and I accept, that the following specific provisions of GLEP have been addressed by the Applicant's Proposed Development (as amended): 1. the Parties advise, and I am satisfied, that in reaching their agreement in this matter, regard has been had to the objectives of the R2 and E2 zoning of the Subject Site in relation to the Proposed Development as required under the provisions of cl 2.3(2) of GLEP; 2. under the provisions of cl 2.6(1) of GLEP, the subdivision of land is permitted on all land to which GLEP applies but only with development consent; 3. clause 2.6(2) of GLEP requires that development consent must not be granted for the subdivision of land on which a secondary dwelling is situated if the subdivision would result in the principal dwelling and the secondary dwelling being situated on separate lots, unless the resulting lots are not less than the minimum size shown on the Lot Size Map in relation to that land. In relation to this, the Parties have confirmed that: 1. as previously noted, the Subject Site is zoned part E2 Environmental Conservation and part R2 Low Density Residential; 2. a minimum lot size of 550m2 applies to the R2 residential component of the Subject Site; 3. as demonstrated on the Applicant's Plan of Subdivision dated 19 May 2020, the eight (8) allotments that would be created as a result of the proposed subdivision of the R2 Low Density Residential component of the Subject Site would all comply with the minimum lot size applicable under the provisions of GLEP; 4. a minimum lot size of 40ha applies to the E2 Environmental Conservation component of the Subject Site and the Proposed Development does not result in a change to the area of the E2 Environmental Conservation zoned land; 5. the Proposed Development includes the retention of an existing brick cottage (situated on proposed Lot 9) and no other existing dwellings/improvements on the land (which include a fibro cottage and fibro garage) are proposed to be retained; and 6. consequently, the Proposed Development will not result in a principal dwelling and a secondary dwelling being situated on separate lots, and the proposed Development is compliant with the provisions of cl 2.6 of GLEP; 1. the Subject Site is identified in the Acid Sulfate Soils Map of GLEP as being within a low (Class 5) Acid Sulfate Soils zone. Having regard to those matters contained within clause 7.1 of GLEP: 1. generally acid sulfate soils are found lower than 1 metre Australian Height Datum (AHD) and often 0-0.3 metre AHD; 2. the Subject Site is approximately 1.4 metres AHD and therefore it is unlikely that significant acid sulfate soils would be encountered; 3. although the Proposed Development is located in an area that is mapped as containing Class 5 acid sulfate soils, the Proposed Development is not likely to lower the watertable on adjacent Class 1, 2, 3 or 4 lands to a level lower than 1m AHD. As a consequence, the provisions of cll 7.1.(2) and 7.1(3) of GLEP are not triggered; 4. should acid sulfate soils be encountered during proposed construction works, the Parties have agreed that a condition of consent (namely, condition 4.12) would be imposed with the grant of consent requiring, inter alia, immediate notification of this fact to be made to the Respondent. The Parties agreed proposed terms of condition 4.12 to be imposed with the grant of consent are: "4.12 Should acid sulfate soils be encountered during construction works, Council must be notified immediately, and all excavation works must cease until such time as an Acid Sulfate Soils Management Plan, written in accordance with the NSW Acid Sulfate Soils Manual 1998 is submitted to Council and approved by the Principal Certifying Authority." 1. clause 7.2(3)(a) of GLEP applies to the Subject Site and provides that development consent must not be granted to development on land to which the clause applies unless the consent authority is satisfied that the development is compatible with the flood hazard of the land. This matter was considered by the Parties' Flooding Experts in a Joint Expert Report filed on 29 July 2020, and those experts agreed that the Proposed Development is compatible with the flood hazard of the land; 2. clause 7.2(3)(b) of GLEP applies to the Subject Site and provides that development consent must not be granted to development on land to which the clause applies unless the consent authority is satisfied that the Proposed Development is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties. In relation to this provision, the Parties have confirmed, and I accept, that, taking into account the findings and conclusions of the Applicant's Flood Impact Assessment Report, prepared by ACOR Consultants and dated 7 July 2020, the Proposed Development is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties; 3. clause 7.2(3)(c) of the GLEP applies to the Subject Site, and requires that development consent must not be granted to development on land to which that clause applies unless the consent authority is satisfied that the development incorporates appropriate measures to manage risk to life from flood, and in relation to this the Parties advise that: 1. this matter was considered by the Parties' Flooding Experts in a Joint Flooding Expert Report filed on 29 July 2020 and those experts agreed that the Proposed Development incorporates appropriate measures to manage risk to life from flood; 2. beyond this agreed conclusion of the Flooding Experts, the Parties have advised that, to ensure further that the Proposed Development delivers the measures included within its application to manage risk to life from flood, the Parties have agreed conditions of consent that require that a 'final' Flood Emergency Response Plans ('FERPs') for Lots 1-9 would be prepared generally in accordance with draft FERPs provided by the Applicant and referenced in agreed conditions of consent; 3. the risk to life on the Subject Site is also considered to be mitigated by the Applicant's proposed restriction on title that will prevent any subdivision works or the occupation of the existing dwelling on proposed lot 9 until a second storey addition is built and certified to withstand the effects of the calculated Probable Maximum Flood event on the Subject Site. Assurance as to the imposition of the Applicant's proposed restriction on title is also the subject of the Parties' agreed conditions of consent that accompanied their agreement in this matter; 1. clause 7.2(3)(e) of GLEP applies to the Subject Site, and requires that development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. This matter was considered by the Parties' Flooding Experts in a Joint Flooding Expert Report filed on 29 July 2020, and those experts agreed that the development is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding; 2. the Proposed Development has been notified consistent with the provisions of Gosford Development Control Plan 2013 (GDCP) and cl 77 of the Environmental Planning and Assessment Regulation 2000. No submissions were received in response to that notification and therefore consideration of submissions by the Parties has been required in reaching agreement in this appeal. 1. I am satisfied that there are no other jurisdictional prerequisites that must be satisfied before the Court can exercise the power to determine the appeal under s 4.16 of the EP&A Act. 2. Having considered the advice of the Parties, provided above at [9], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied. 3. I am further 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. 4. 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. 5. 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. 6. The Court orders that: 1. The Applicant is granted leave to rely upon the amended plans and documents contained at Annexure "A" to this Agreement. 2. The Applicant is granted leave to amend the description of the development application provided in its development application form for Development Application 53997/2018 lodged 16 March 2018 as follows: "Residential subdivision of 1 lot into 9 lots at 17-25 Fountains Road, Narara, NSW (Lot 1 DP 313904), including approval for the use of fill that was placed on the land without prior approval between 27 September 2017 and 24 July 2020." 3. The appeal is upheld. 4. Development Application 53997/2018 for the residential subdivision of one (1) lot into nine (9) lots at 17-25 Fountains Road, Narara, NSW (Lot 1 in DP 313904) and the use of fill that was placed on the land without prior approval between 27 September 2017 and 24 July 2020 (to the extent that use of this fill is authorised by the conditions of consent and the approved Remediation Action Plan prepared by EP Risk, dated 23 March 2021) is approved subject to the conditions set out in Annexure "B" to this agreement. ………………………….. M Chilcott Commissioner of the Court Annexure A (6440558, pdf) Annexure B (363107, 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: 12 May 2021