Land and Environment Court New South Wales Medium Neutral Citation: I.D.A. Safe Constructions Pty Ltd v Central Coast Council [2023] NSWLEC 1185 Hearing dates: 3 April 2023 Date of orders: 20 April 2023 Decision date: 20 April 2023 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is upheld. (2) Development Consent No 1591/2017 for a 72 lot subdivision (comprising 69 residential lot, 2 residue lots and 1 detention basin lot) and the creation and dedication of a park, at Lots 10 & 11 in Deposited Plan 1177776 and Lot 31 in Deposited Plan 23810, known as 10 Oscar Drive & 51 Geoffrey Road, Chittaway Point NSW 2261, is modified in the terms set out in the consolidated conditions of consent at Annexure A. (3) The exhibits are returned, with the exception of exhibit A, B, and C. Catchwords: MODIFICATION APPLICATION – 72 lot subdivision – alter the size and location of two box culverts – orders by consent of parties Legislation Cited: Environmental Planning and Assessment Act 1979 s 4.55 Wyong Local Environmental Plan 2013 cl 5.21 Central Coast Local Environmental Plan 2022 cl 1.8A Cases Cited: I.D.A. Safe Constructions Pty Ltd v Central Coast Council [2021] NSWLEC 1434 Texts Cited: Central Coast Development Control Plan 2022 Category: Principal judgment Parties: I.D.A. Safe Constructions Pty Ltd (Applicant) Central Coast Council (Respondent) Representation: Counsel: J Reid (Applicant) M Ball (Solicitor) (Respondent) Solicitors: Thomson Geer Lawyers (Applicant) MBM Legal (Respondent) File Number(s): 2022/366489 Publication restriction: No Judgment 1. COMMISSIONER: This is a modification application pursuant to the provisions of s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify Development Consent No 1591/2017 (the development consent), for a 72 lot subdivision (comprising 69 residential lot, 2 residue lots and 1 detention basin lot) and the creation and dedication of a park, to alter the size and location of two box culverts (the proposal), at Lots 10 & 11 in Deposited Plan 1177776 and Lot 31 in Deposited Plan 23810, known as 10 Oscar Drive & 51 Geoffrey Road, Chittaway Point NSW 2261 (the site). The functions imposed on the consent authority under s 4.55(2)(b) and (c) of the EPA Act have been carried out by Central Coast Council (the Council). Background and the proposal 1. The original development application (I.D.A. Safe Constructions Pty Ltd v Central Coast Council [2021] NSWLEC 1434) was granted by the Court following a conciliation conference and the parties' agreement on the terms of the decision. Legislative framework 1. Section 4.55(2), (3) and (4) is relevantly in the following terms: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if— (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all) … (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. (4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. 1. Wyong Local Environmental Plan 2013 (LEP 2013) applies to the application (pursuant to cl 1.8A of Central Coast Local Environmental Plan 2022). Clause 5.21(2) and (3) is in the following terms: (2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development— (a) is compatible with the flood function and behaviour on the land, and (b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and (c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and (d) incorporates appropriate measures to manage risk to life in the event of a flood, and (e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses. (3) In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters— (a) the impact of the development on projected changes to flood behaviour as a result of climate change, (b) the intended design and scale of buildings resulting from the development, (c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood, (d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion. 1. Central Coast Development Control Plan 2022 applies to the proposal. Chapter 5.43 applies to Chittaway Point and relevantly has as an objective to enable development of land to proceed in a manner that is sensitive to the existing natural environmental characteristics and constraints. Public submissions 1. One objector gave evidence at the commencement of the hearing. He is concerned that the proposal reduces the flow capacity of the culverts and that the flooding impact on adjoining properties will be increased. Expert evidence 1. Jonathan Frecker of Martens & Associates Pty Ltd provided an expert position paper (Ex C) relied on by the Applicant, summarising his detailed design and analysis of the two box culverts to refine their design and the flood modelling. Mr Frecker's paper includes the following summary: "c. The results of my flood modelling and detailed design have shown that dual 3.6m x 1.2m culvert sections for each proposed culvert, with associated wing walls and inlet grading produced flooding impacts that: i. Were less than the flood impacts approved during the original proceedings for the 0.5% AEP event using the concept 15m culverts. ii. Were only up to an additional 25mm higher in some areas (where flood depths are greater than 2m), to the flood impacts approved during the original proceedings for the PMF event using the concept 15m culverts. I consider these impacts to be within the scale of those approved during the original proceedings. d. In correspondence with Central Coast Council's (Council's) flood engineers, grated inlets and outlets were including in the design and flood model with inlet blockage factors of 50% in accordance with the Australian Rainfall and Runoff (ARR) 2019 blockage assessment form. This model configuration produced flooding that: i. Were less than the flood impacts approved during the original proceedings for the 0.5% AEP event using the concept 15m culverts. ii. Were only up to an additional 30mm higher in some areas (where flood depths are greater than 2m), to the flood impacts approved during the original proceedings for the PMF event using the concept 15m culverts. I consider these impacts to be within the scale of those approved during the original proceedings. e. The refined culvert design and model configuration was accepted by Council's flood engineer on 4 August 2022." 1. I accept Mr Frecker's expert evidence in the absence of evidence to the contrary. I have considered the matters under cl 5.21(3) of LEP 2013 and on the basis of Mr Frecker's evidence, I am satisfied of the matters under cl 5.21(2) of LEP 2013. 2. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, because the performance of the proposal in a flood event remains substantially the same as the performance of the originally approved development, with an improved performance in smaller flood events and a reduction in flood impact overall, notwithstanding the change in the width of the two box culverts. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Consent No 1591/2017 for a 72 lot subdivision (comprising 69 residential lot, 2 residue lots and 1 detention basin lot) and the creation and dedication of a park, at Lots 10 & 11 in Deposited Plan 1177776 and Lot 31 in Deposited Plan 23810, known as 10 Oscar Drive & 51 Geoffrey Road, Chittaway Point NSW 2261, is modified in the terms set out in the consolidated conditions of consent at Annexure A. 3. The exhibits are returned, with the exception of exhibit A, B, and C. Susan O'Neill Commissioner of the Court Annexure A Annexure B ********** 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: 20 April 2023