Land and Environment Court New South Wales Medium Neutral Citation: Zeaiter v Central Coast Council [2021] NSWLEC 1584 Hearing dates: Conciliation conference on 15 September 2021 Date of orders: 1 October 2021 Decision date: 01 October 2021 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) The request pursuant to clause 4.6 of the Gosford Local Environmental Plan 2014 to vary the development standard for floor space ratio contained in clause 4.4(2A) of the instrument prepared by Tim Shelley Planning dated July 2021 is upheld. (2) The appeal is upheld. (3) Development application DA58026/2020 for a 3-storey multi-dwelling housing development comprising 6 townhouses, and associated car parking, driveways, fencing, demolition of 2 existing houses, landscaping and utility services at 259 Burge Road and 200 Blackwall Road Woy Woy being Lot 6A DP 326825 and Lot 7 DP 9470 respectively, is approved subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPLICATION – multi-dwelling housing – clause 4.6 request – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Gosford Local Environmental Plan 2014 cll 4.4, 4.6 Land and Environment Court Act 1979 State Environmental Planning Policy (Coastal Management) 2018 cll 13, 15 & 16. State Environmental Planning Policy No 55 – Remediation of Land Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Gosford Development Control Plan 2013 Category: Principal judgment Parties: Charlie Zeaiter (Applicant) Central Coast Council (Respondent) Representation: Counsel: P Wright (Solicitor) (Applicant) J Farrell (Respondent) Solicitors: P J Donnellan & Co (Applicant) Central Coast Council (Respondent) File Number(s): 2020/364056 Publication restriction: No Judgment 1. COMMISSIONER: These Class 1 proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). They arise as the result of the actual refusal of development application DA58026/2020 for the demolition of 2 dwellings, and construction of 6 x 3 storey multi-dwelling houses at 259 Burge Road and 200 Blackwall Road Woy Woy, Lot 6A DP 326825 and Lot 7 DP 9470 respectively. 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 was held on 15 September 2021. I 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 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained how each been satisfied. From this I note the following points. 5. The owners of the land that forms the subject site are the Applicant, Mr Charbel Estephan Zeaiter (also known as Charlie Zeaiter) and Mr John Zeaiter. Pursuant to cl 49 of the EPA Act, the signed consent of both Charbel and John Zeaiter has been filed with the Court. 6. The development application was exhibited form 11 March 2020 to 1 April 2020 in accordance with the Gosford Development Control Plan 2013 (GDCP). Four submissions were received in this period and I am satisfied based on the Applicant's submissions and the revised architectural drawings that these submissions have been adequately addressed. 7. Pursuant to the requirements of State Environmental Planning Policy No 55 – Remediation of Land I am satisfied, based on the information provided in the Statement of Environmental Effects (SEE) that the land has previously only been used for residential purposes and that the site is suitable for the purpose of this development. 8. I am further satisfied based on the information provided in the SEE that the relevant provisions of the State Environmental Planning Policy (Coastal Management) 2018 cll 13, 15 and 16 are met, and the development will not result in unacceptable adverse impacts on the coastal environment area of coastal use area. Gosford Local Environmental Plan 1. The site is zoned R1- General Residential under the Gosford Local Environmental Plan 2014 (GLEP). The application for multi-dwelling housing is permissible with development consent within this zone. 2. The site complies with the requirement of GLEP cl 4.1B Minimum lot sizes for attached dwellings, dual occupancies, multi dwelling housing and residential flat buildings, with a site area of 1307m2. 3. The maximum building height standard of 11m set by the GLEP cl 4.3 Height of Buildings is met with the proposed 10.2m high building. 4. The site is not a flood control lot, and so GLEP cll 5.21 Flood Planning and 5.22 Special Flood Considerations do not apply. 5. Pursuant to GLEP cl 7.1 Acid Sulfate Soils, no excavation will extend beyond 1 metre below the natural ground surface and so the provisions of this clause do not apply. Variation to GLEP cl 4.4 Floor Space Ratio development standard 1. Pursuant to GLEP cl 4.4, the Floor Space Ratio (FSR) for the site is mapped as 0.85:1. However, cl 4.4(2A) provides additional criteria for FSR in relation to certain types of development in the R1 zone. Clause 4.4 reads: 4.4 Floor space ratio (1) The objectives of this clause are as follows— (a) to establish standards for the maximum development density and intensity of land use, (b) to control building density and bulk in relation to site area in order to achieve the desired future character for different locations, (c) to minimise adverse environmental effects on the use or enjoyment of adjoining properties and the public domain, (d) to maintain an appropriate visual relationship between new development and the existing character of areas or locations that are not undergoing, and are not likely to undergo, a substantial transformation, (e) to provide an appropriate correlation between the size of a site and the extent of any development on that site, (f) to facilitate design excellence by ensuring the extent of floor space in building envelopes leaves generous space for the articulation and modulation of design, (g) to ensure that the floor space ratio of buildings on land in Zone R1 General Residential reflects Council's desired building envelope, (h) to encourage lot amalgamation and new development forms in Zone R1 General Residential with car parking below ground level. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. (2A) Despite subclause (2), the maximum floor space ratio for a building on land in Zone R1 General Residential for which the maximum floor space ratio on the Floor Space Ratio Map is 0.7:1 or 0.85:1 is to be— (a) if the building is used for the purpose of an attached dwelling, semi-detached dwelling or dual occupancy—0.5:1 or 0.6:1, respectively, or (b) if the building is on a site area of less than 1,000 square metres and is used for the purpose of a residential flat building or multi dwelling housing with all on-site car parking located in the basement—0.6:1 or 0.7:1, respectively, or (c) if the building is used for the purpose of a residential flat building or multi dwelling housing and includes on-site car parking that is not located in the basement—0.5:1 or 0.6:1, respectively, or (e) if the building is used for any other purpose (excluding a dwelling house)—0.6:1 or 0.75:1, respectively. (2B) Despite subclause (2), the maximum floor space ratio for a building is as follows— (a) if the building is used for the purpose of a dwelling house—0.5:1, or (b) if the building is used for any other purpose and is located on land in Zone RU5 Village, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living—0.15:1. 1. This development application proposes multi-dwelling housing with on-site parking that is not located in the basement, and therefore subcl (2A)(c) is applicable, reducing the maximum allowable FSR to 0.6:1. 2. The proposed development as amended has a floor space of 0.66:1, which exceeds the 0.6:1 maximum floor space ratio allowable under GLEP cl 4.4 (2A)(c) by 10%, or 0.06. Pursuant to GLEP cl 4.6, a written request to vary this development standard has been submitted in support of the proposed development. 3. GLEP cl 4.6 is as follows: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows— (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating— (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless— (a) the consent authority is satisfied that— (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider— (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence. (6) Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living if— (a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or (b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard. Note— When this Plan was made it did not include all of these zones. (7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant's written request referred to in subclause (3). (8) This clause does not allow development consent to be granted for development that would contravene any of the following— (a) a development standard for complying development, (b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated, (c) clause 5.4, (ca) clauses 6.1 and 6.2. 1. The Applicant's written request pursuant to cl 4.6 of the GLEP addresses the matters required to be demonstrated in respect of the 0.06 FSR non-compliance, and is detailed in the following paragraphs: 1. Pursuant to the objectives of GLEP cl 4.6, the Applicant seeks flexibility in the application of the FSR development standard. The Applicant submits that the FSR is appropriate for a number of reasons, including that compliance with the development standard is unreasonable and unnecessary in the circumstances of this case; there are sufficient environmental planning grounds to justify the contravention of the development standard; the proposed development is consistent with the relevant objectives of the FSR development standard and of the R1 General Residential Zone; and that departure from the standard in this instance will achieve a better built outcome for and from the proposed development. 2. Pursuant to GLEP cl 4.6(2) the development standard set by GLEP cl 4.4 is not expressly excluded from the operation of GLEP cl 4.6, so development consent may be granted for a development that contravenes this standard, subject to the provisions of GLEP cl 4.6. 3. Pursuant to GLEP cl 4.6(3)(a), the Applicant's written request must justify the contravention of the development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in these circumstances. To demonstrate this, the Applicant has applied the five-point test established by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe) and submits: 1. Test 1: The objectives of the standard are achieved notwithstanding the non-compliance with the standard. 2. The written request details the reasons each of the eight objectives of GLEP cl 4.4 are achieved, which can be generally summarised as: 1. The proposed development is in keeping with the applicable height limit, bulk, scale and density of current and future medium density developments in the locality. 2. Adverse environmental impacts have been minimised, as demonstrated by the architectural drawings and SEE. 3. The architectural design and site planning achieve the desired future character of the locality, which is consistent with both existing and newer medium-density developments in the immediate vicinity. 4. The development falls well short of the maximum FSR that would apply to this site if the 9 parking spaces had been located within a basement, indicating that the development represents an appropriate correlation between the size of the site and the extent of proposed development on that site. Further, as 6 of the 9 parking spaces are already housed in garages, a basement would only be required for the remaining 3 spaces. Due to the prohibitive cost and modest scale of this construction, townhouse building typology, incompatible layout, and issues arising from the high water table, the provision of a below-ground basement on this site is prohibitive and impractical. 1. Test 2: The underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary. 2. The Applicant submits in their written request that the proposed development complies with all objectives of GLEP cl 4.4 except objective (h). Although the proposed development encourages and achieves lot amalgamation, it does not do so with residential car parking below ground level. For the reasons outlined above, I accept the Applicant's written submissions that car parking below ground level is unreasonable and unnecessary in this instance, and that the relevant site planning objectives are still met. Subsequently I accept that the purpose of this standard of encouraging parking below ground level is not relevant to this development, and therefore compliance is unnecessary. 1. For these reasons, I am satisfied that the development meets the first two tests set out by Preston CJ in Wehbe, and that compliance with the development standard is unreasonable or unnecessary in the circumstances of this case. 2. Pursuant to GLEP cl 4.6 (3)(b), the Applicant's written request must justify the contravention of the development standard by demonstrating that there are sufficient environmental planning grounds to justify contravening the development standard. In Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action), Preston CJ states that "the adjectival phrase 'environmental planning' is not defined, but would refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act." With reference to s 1.3 of the EPA Act, I accept that the following environmental planning grounds justify contravening the FSR development standard: 1. The development will promote good design and amenity of the built environment, as per EPA Act s 1.3(g). The proposed development is consistent with the relevant zone objectives and objectives of GLEP cl 4.4. It is consistent with Council's desired future character for the locality, and is of good design, seeking to lift the design standards of the Blackwall Road arterial road corridor by setting new and higher design and architectural standards. 2. The development will promote the orderly and economic use and development of land, as per EPA Act s 1.3(c). The non-compliance will not result in a development that is inconsistent with the existing and desired future planning objectives for the locality, whereas strict compliance may result in an underutilisation of the site in close proximity to Woy Woy CBD where higher density outcomes are sought, preventing the orderly and economic use and development of the land. 1. For these reasons, I am satisfied that there are sufficient environmental planning grounds to justify this variation to the FSR development standard, and the requirements of GLEP cl 4.6(3)(b) are met. 1. I am satisfied that the requirements of GLEP cl 4.6(4)(a) are met for the reasons listed above, and that the proposed development is in the public interest because it: achieves the objectives of both the development standard and of the R1 General Residential Zone; provides additional stock to the local housing market to assist in meeting the demand in the Woy Woy area, and; is of good design. 2. For these reasons, I am satisfied that compliance with the FSR development standard of GLEP cl 4.4 is unreasonable or unnecessary in these circumstances, and there are sufficient environmental planning grounds to justify contravening this development standard. 3. I am further satisfied that pursuant to GLEP cl 4.6(4)(b), under cl 64 of the Environmental Planning and Assessment Regulation 2000, concurrence of the Planning Secretary in relation to contravention of this development standard is assumed, but pursuant to GLEP cl 4.6(5), that the proposal does not raise any matter of significance for State or regional environmental planning, and that the public benefit of maintaining the development standard is not considered significant in the circumstances of this case. 4. The proposal is therefore consistent with the matters required to be taken into consideration before concurrence can be granted. The non-compliance contributes to a quality development which is consistent with the desired character of the locality and is in the public interest. 5. For these reasons, 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. 6. 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. 7. The Court notes: 1. That the Central Coast Council as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the application for development consent (DA58026/2020). 2. That the Central Coast Council has uploaded the amended application on the NSW planning portal on 9 September 2021. 3. That the applicant has subsequently filed the amended application with the Court on 15 September 2021. 1. The Court orders: 1. The request pursuant to clause 4.6 of the Gosford Local Environmental Plan 2014 to vary the development standard for floor space ratio contained in clause 4.4(2A) of the instrument prepared by Tim Shelley Planning dated July 2021 is upheld. 2. The appeal is upheld. 3. Development application DA58026/2020 for a 3-storey multi-dwelling housing development comprising 6 townhouses, and associated car parking, driveways, fencing, demolition of 2 existing houses, landscaping and utility services at 259 Burge Road and 200 Blackwall Road Woy Woy being Lot 6A DP 326825 and Lot 7 DP 9470 respectively, is approved subject to the conditions at Annexure A. ………………………. E Washington Acting Commissioner of the Court Annexure A (293897, 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: 01 October 2021