Land and Environment Court New South Wales Medium Neutral Citation: CCS Design Pty Ltd trading as Knight Mapleton Design Partners v Central Coast Council [2024] NSWLEC 1153 Hearing dates: Conciliation conference 22 March 2024 Date of orders: 04 April 2024 Decision date: 04 April 2024 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The Applicant is granted leave to rely on the amended plans listed at [8] of this judgment. (2) The appeal is upheld. (3) Development consent is granted to development application DA/3337/2022 for the demolition of an existing dwelling house and ancillary structures, removal of trees and construction of a dual occupancy with associated carparking and landscaping at Lot 36 DP 9894, known as 16 Sydney Avenue, Umina Beach in accordance with the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – demolition and construction of new dual occupancy development – amended plans and additional information – agreement between the parties – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Land and Environment Court Act 1979, s 34 Central Coast Local Environmental Plan 2022, cll 2.3, 4.1B, 4.3,4.4 Environmental Planning and Assessment Regulation 2021, s 38 State Environmental Planning Policy Building Sustainability Index: BASIX 2004 (BASIX SEPP) State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2 Texts Cited: Central Coast Development Control Plan 2022 Category: Principal judgment Parties: CCS Design Pty Ltd trading as Knight Mapleton Design Partners (Applicant) Central Coast Council (Respondent) Representation: Counsel: R Byrd (Solicitor) (Applicant) D Taylor (Solicitor) (Respondent) Solicitors: PJ Donnellan and Co (Applicant) Wilshire Webb Staunton and Beattie (Respondent) File Number(s): 2023/65846 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal of development application DA/3337/2022. The development application seeks approval for demolition of the existing dwelling house and outbuilding and construction of a dual occupancy development with associated car parking and landscaping. The development is proposed at 16 Sydney Avenue, Umina Beach (Lot 36 in DP 9894). 2. Specifically, the proposal seeks approval for: * Demolition of the existing dwelling house and ancillary structures; * Removal of trees; * Construction of an attached dual occupancy comprising two, two-storey dwellings: * Unit 1 (fronting Sydney Avenue): double garage, open plan kitchen/ living/ dining, pantry, three bedrooms (one with an ensuite and walk in wardrobe (WIR)), bathroom, water closet (WC), family room, and alfresco area. * Unit 2 (fronting Leslie Knock Lane): double garage, open plan kitchen/ living/ dining, pantry, three bedrooms (one with an ensuite and WIR), bathroom, WC, family room, and alfresco area; * New internal driveways and driveway crossings (to both Sydney Avenue and Leslie Knock Lane); * Landscaping; and * Stormwater infrastructure. 1. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 between the parties, which was held on 24 July 2023. The conciliation conference was adjourned to allow the parties to continue discussions. That conciliation conference was ultimately terminated on 6 December 2023. 2. The parties have continued without prejudice discussions and have reached an agreement as to the resolution of the contentions in the proceedings. The parties' agreement is for the grant of consent to the application, as amended, subject to conditions. The parties advised the Court of their agreement, and the proceedings were listed for a further conciliation conference on 22 March 2024. I presided over the further conciliation conference. 3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (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 was lodged on 9 January 2023 with the consent of the owners of the land. 2. The development application was notified and advertised between 20 January to 6 February 2023. Twenty-five submissions were received. Further, at the commencement of the conciliation the Court was addressed by three members of the public. The plans proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by submissions. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act. 3. The Development Application was lodged under the provisions of the State Environmental Planning Policy Building Sustainability Index: BASIX 2004 (BASIX SEPP). On 1 October 2023, the BASIX SEPP was repealed, and its provisions were transferred to the State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP). The Development Application is captured by the savings and transitional provision set out in s 4.2(1)(a) of the Sustainable Buildings SEPP, so remains subject to the provisions of the BASIX SEPP. An updated BASIX certificate has been provided as part of the Amended Proposal. 4. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) (SEPP RH) the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that the use of the area of the land to be utilised for residential purposes has been historically utilised for residential use and there are no known previous uses that would lead to the site being contaminated or unsuitable for the proposed use for residential purposes. The development application does not propose a change of use. The parties agree and I accept that s 4.6 of SEPP RH is satisfied. 5. I note Sydney Avenue is a reginal road not a state road and a referral to Transport for NSW is not required. 6. Central Coast Local Environmental Plan 2022 (LEP 2022) applies to the land which is zoned R1 – General Residential. The proposed development, dual occupancy, is permitted with consent in the zone. As required by cl 2.3(2) of LEP 2022 in determining the development application I have considered the objectives of the R1 – General Residential zone. 7. The development application complies with the following development standards from LEP 2022: 1. Clause 4.1B 'Minimum Lot size for dual occupancies' of 550m² 2. Clause 4.3 'Maximum building height' of 8.5m. 3. Clause 4.4 'Floor space ratio': 0.5:1 1. Central Coast Development Control Plan 2022 (DCP 2022) applies to the site. The statement of environmental impacts filed with the application details the compliance of the proposed development with DCP 2022. In determining the development application, I have considered the provisions of the development control plan: 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, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 of the EPA Act. 3. The Court notes that: 1. Central Coast Council, the Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending development application DA/337/2022 to include the amended plans identified in below: Architectural Plans Plan No. Revision No. Plan Title Drawn By Dated DA000 P3 Cover Page Elk Design 18/08/2023 DA020 P2 Demolition Plan Elk Design 29/11/2023 DA030 P12 Site Plan Elk Design 29/11/2023 DA035 P11 Site Coverage Plan Elk Design 29/11/2023 DA041 A Building Height Diagram Elk Design 11/05/2023 DA100 P10 Ground Floor Elk Design 29/11/2023 DA110 P9 First Floor Elk Design 29/11/2023 DA150 P9 Roof Plan Elk Design 29/11/2023 DA300 P6 Elevations Elk Design 06/09/2023 DA350 P2 External Finishes Elk Design 17/08/2023 DA400 P2 Sections Elk Design 18/08/2023 DA900 P9 External Shadow Diagrams Elk Design 29/11/2023 DA901 P9 External Shadow Diagrams Elk Design 29/11/2023 DA902 P9 External Shadow Diagrams Elk Design 29/11/2023 DA903 P9 External Shadow Diagrams Elk Design 29/11/2023 DA904 P5 Views from the sun Elk Design 29/11/2023 DA960 P1 Sediment Control Elk Design 14/08/2023 Landscape Plans Plan No. Revision No. Plan Title Drawn By Dated Sheet 1/3 - Site Analysis Plan Toledo Landscape Design 23/08/2023 Sheet 2/3 - Landscape Plan Toledo Landscape Design 23/08/2023 Sheet 3/3 - Specification Plan Toledo Landscape Design 23/08/2023 1. The Court orders that: 1. The Applicant is granted leave to rely on the amended plans listed at [8] of this judgment. 2. The appeal is upheld. 3. Development consent is granted to development application DA/3337/2022 for the demolition of an existing dwelling house and ancillary structures, removal of trees and construction of a dual occupancy with associated carparking and landscaping at Lot 36 DP 9894, known as 16 Sydney Avenue, Umina Beach in accordance with the conditions in Annexure A. D Dickson Commissioner of the Court ********** 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: 04 April 2024