Land and Environment Court New South Wales Medium Neutral Citation: Blanch v Central Coast Council [2023] NSWLEC 1744 Hearing dates: Conciliation conference on 15, 16 November 2023 Date of orders: 07 December 2023 Decision date: 07 December 2023 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld. (2) Development application number DA/1240/2022, as amended, for the construction of a dual occupancy dwelling house and a driveway on land identified as Lot 101 DP 840141 and known as 100 Berkeley Road, Fountaindale NSW 2258, is determined by the grant of consent subject to the conditions included in Annexure A. Catchwords: DEVELOPMENT APPLICATION – dual occupancy dwelling house, driveway and associated works – conciliation conference – amended plans and additional information – agreement between the parties – orders made Legislation Cited: Central Coast Local Environmental Plan 2022, cl 1.8A Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2021, ss 23, 38 Land and Environmental Court Act 1979, s 34AA Rural Fires Act 1997 State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.8, 4.6 Wyong Local Environmental Plan 2013, cll 4.1D, 4.2B, 5.21, 7.9, Texts Cited: NSW Rural Fire Service, Planning for Bushfire Protection 2019 Wyong Development Control Plan 2013 Category: Principal judgment Parties: Ty Barron Blanch (Applicant) Central Coast Council (Respondent) Representation: Counsel: M Fraser (Applicant) C Rose (Solicitor) (Respondent) Solicitors: Aubrey Brown Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2023/172179 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This appeal concerns a development application seeking approval for construction of an additional dwelling at 100 Berkeley Road, Fountaindale (Lot 101 in DP 840141) resulting in a detached dual occupancy on the land. The Applicant's appeal against the deemed refusal of their development application, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The Court arranged a conciliation conference pursuant to s 34AA of the Land and Environmental Court Act 1979 (LEC Act) between the parties which was held on 15, 16 November 2023. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for the grant of consent to an amended development application, subject to the annexed conditions. 3. As the presiding commissioner, I am satisfied that the decision is one that the Court could make in the proper exercise of its function (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that: 1. The development application has been made with the consent of the owner of the land: s 23 Environmental Planning and Assessment Regulation 2021. 2. Despite the gazettal of the Central Coast Local Environmental Plan 2022 (LEP 2022), the Wyong Local Environmental Plan 2013 (LEP 2013) continues to apply pursuant to the savings provision at cl 1.8A of LEP 2022. Pursuant to LEP 2013, the site is zoned C2 Environmental Conservation and C3 Environmental Management. The proposal for the detached dual occupancy development is contained within the part of the site zoned C3 Environmental Management and is permissible with consent in the zone. In determining the development application, I have had given consideration to the zone objectives which are: Zone C3 Environmental Management 1 Objectives of zone • To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values. • To provide for a limited range of development that does not have an adverse effect on those values. Zone C2 Environmental Conservation 1 Objectives of zone • To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values. • To prevent development that could destroy, damage or otherwise have an adverse effect on those values. • To protect endangered ecological communities, coastal wetlands and littoral rainforests. • To enable development of public works and environmental facilities if such development would not have a detrimental impact on ecological, scientific, cultural or aesthetic values. 1. Clause 4.1D 'Minimum lot sizes for dual occupancies' in LEP 2013 applies. The development application is compliant with the lot size minimum of 700m² as the site has an area of 8.88ha. 2. Clause 4.2B 'Erection of dual occupancies and dwelling houses on land in certain rural and environmental protection zones' in LEP 2013 applies to the site. Clause 4.2B(8) states that development consent may be granted for the erection of a dwelling house to create a dual occupancy on land to which this clause applies if there is a lawfully erected house on the land zoned C3 Environmental Management. The existing house was approved under DA /501/1985. An additional dwelling to create a dual occupancy is permissible with consent. 3. The subject site is mapped as flood prone land and cl 5.21 'Flood planning' in LEP 2013 applies. 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 function and behaviour on the land; * Will not adversely affect flood behaviour in a way that detrimentally increases the flood affectation of other properties; * 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; * Incorporates appropriate measures to manage risk to life in the event of flood; and * Will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or reduction in the stability of riverbanks or water courses. 1. Whilst the subject site is mapped as flood prone, the proposed location of the new dwelling is outside of the mapped flood zone. The parties agree and I accept that I can be satisfied that the above matters are satisfied by the proposed development. 2. Clause 7.9 'Essential services' in LEP 2013 applies to the development. The development application seeks consent for installation of a new onsite sewer management, the remaining services are available to the site. The parties agree, and I accept that the remaining services required for the development are available. Further, the parties agree, and I accept that the proposed onsite sewer system represents an adequate arrangement for the provision of sewer services to the proposed development. 3. Pursuant to State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the north and north-east portion of the subject site is identified as being located and mapped in the proximity area for coastal wetlands or wetlands buffer. Section 2.8 provides that the consent authority must not grant consent to development on such land unless the consent authority is satisfied that the development will not impact on the following two matters: (a) the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or (b) the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest. 1. The proposed development is not located in an area mapped as wetland buffer. Given the topography of the site and the distance of the proposed development from the mapped area, I am satisfied that the development will not impact the matters extracted at (8). 2. Pursuant to s 4.6 of SEPP RH, the development application is accompanied by a Phase 1 Environmental Site Assessment. That assessment concludes that the site in its present condition is suitable for the proposed development. 3. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the development application is accompanied by a BASIX certificate. 4. State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies to the development application. The application is accompanied by an Ecological Assessment Report which addresses the provisions of the instrument which are satisfied. 5. The development application is on a site mapped as Bushfire Prone Land pursuant to the Rural Fires Act 1997. A Bushfire Assessment Report prepared by Peterson Bushfire accompanies this application. That assessment concludes that the proposed development can achieve compliance with the acceptable solutions in Planning for Bushfire Protection 2019. The conditions of consent annexed include conditions requiring implementation of the development in accordance with this report and the relevant standards. 6. The Wyong Development Control Plan 2013 (DCP 2013) applies to the site. The statement of environmental impacts details the compliance of the proposed development with DCP 2013. In determining the development application, I have considered the provisions of the development control plans: s 4.15(1) of the EPA Act. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act. 3. The Court notes that: 1. The Respondent, as the relevant consent authority has agreed to the Applicant amending the development application pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 so as to rely on the following amended materials: Plan No. Revision No. Plan Title Drawn By Dated A005 1 Stormwater Management Plan RZK Group 1/11/2023 A006 1 Infrastructure Plan RZK Group 1/11/2023 A100 9 Subfloor Level RZK Group 15/11/2023 A101 18 Lower Level RZK Group 15/11/2023 A102 19 Upper Level RZK Group 15/11/2023 A201 8 Elevations RZK Group 15/11/2023 Document Title Version No. Prepared by Dated "Driveway Access Plan" (3 sheets) C2.01, C2.02 & C2.03 B Everitt & Everett 1 November 2023 Arborist Impact Assessment (Driveway route and electrical supply) 00 AEP 18 August 2023 Revised Waste Water Management Plan and Report D Larry Cook Consulting 1 November 2023 1. The Applicant filed the amended development application with the Court on 16 November 2023. 1. The Court orders that: 1. The appeal is upheld. 2. Development application number DA/1240/2022, as amended, for the construction of a dual occupancy dwelling house and a driveway on land identified as Lot 101 DP 840141 and known as 100 Berkeley Road, Fountaindale NSW 2258, is determined by the grant of consent subject to the conditions included in Annexure A. D Dickson Commissioner of the Court 2023.172179 Annexure A ********** 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 December 2023