Land and Environment Court New South Wales Medium Neutral Citation: Broadworth Developments Pty Ltd v Central Coast Council [2024] NSWLEC 1477 Hearing dates: Conciliation conference on 9 July 2024 Date of orders: 6 August 2024 Decision date: 06 August 2024 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The appeal is upheld. (2) Development consent no. DA/1565/2021 is modified in the terms set out in Annexure A. (3) Development consent no. DA/1565/2021, as modified, is Annexure B. Catchwords: APPEAL – modification application – construction of an industrial building – conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.55(1A) Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 113 Texts Cited: Central Coast Development Control Plan 2022 Category: Principal judgment Parties: Broadworth Developments Pty Ltd (Applicant) Central Coast Council (Respondent) Representation: Counsel: T Pickup (Solicitor) (Applicant) M Ball (Solicitor) (Respondent) Solicitors: Pickup Legal (Applicant) MBM Legal + Conveyancing (Respondent) File Number(s): 2024/45961 Publication restriction: Nil JUDGMENT 1. These proceedings arise following an appeal against Central Coast Council's refusal of modification application no. DA/1565/2021/A which sought to modify development consent no. DA/1565/2021 (Consent) for the construction of an industrial building on Lots 11 and 12 DP 804078, also known as 5-7 Newbridge Road, Berkeley Vale (site). 2. The modification application, as amended, seeks the deletion of Condition 5.9 of the Consent that requires the consolidation of Lots 11 and 12 and change to the roller door configuration on the front elevation of the proposed industrial building. 3. 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 9 July 2024. I presided over the conciliation conference. At the conference, the parties resolved the contentions between them and now propose the resolution of the proceedings in the terms outlined in their executed s34 agreement. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' signed agreement if the Court could have made that decision in the proper exercise of its functions. The preconditions relevant to the exercise of the Court's power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the written agreement. In that regard, I note the following matters. 5. The application was made to the Council under the provisions of s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (EPA Act). It concerns minor changes to the Consent with minimal environmental impact and it is accepted that after modification the development will be substantially the same as the development for which the consent was originally granted and before that consent as originally granted was modified. 6. The application was notified in accordance with the Council's Development Control Plan during the period from 18 August 2023 to 1 September 2023 and no submissions were received. 7. Relevantly, the site is subject of a separate development consent (DA/827/2014/A) for general industry for the manufacture of modular residential and commercial buildings (the Use DA). A modification application had also been made to delete a similar consolidation condition of the Use DA (Condition 23). 8. The Council had raised merit issues relating to internal vehicular movement between Lots 11 and 12 and the interdependence of the lots to facilitate the approved development. It is accepted that the construction of the industrial building on Lot 11 will limit the access between the lots to pedestrian access or access by forklift. To address the internal vehicular movement issue, it has been agreed that an area for loading and waste collection will be identified on each lot. 9. Noting, that separate vehicular access is available to each lot with the access into Lot 11 being available from Newbridge Road for vehicles up to the size of a small rigid truck. Access is also available into the waste collection area in the industrial building for a waste services vehicle. And, separate vehicular access into and from Lot 12 is available by an entrance and exit on Journeyman Close and is accessible by vehicles up to and including a large rigid truck. 10. In relation to the interdependence of the lots to facilitate the development, the parties note that Condition 6.3 of the Consent requires that the approved use on Lot 11 is not to operate independently from Lot 12. In addition, the parties have agreed to the imposition of an additional condition as follows: "On or before the earlier of • 3 months from the date of the approval of the modification of DA/1565/2021/A; or • The issue of a Construction Certificate under DA/1565/2021/A, an Instrument under the Conveyancing Act 1919 shall be prepared and registered for the following restrictive covenant; Create a Restriction on the use of Land over Lots 11 and 12 in DP 804078, restricting the lots burdened from being used for industrial purposes except: a) In accordance with: development consent DA/827/2014/B; and, development consent DA/1565/2021/A; as may be modified from time to time; or, b) in accordance with any future development consent or Complying Development Certificate granted in respect of the lot burdened. The body with the power to vary, modify or release this restriction is Central Coast Council." 1. Having regard to the additional information that has now been identified above, together with the proposed consolidated conditions of consent agreed between the parties and annexed to the s34 agreement, the parties agree that the Council's merit concerns have been addressed. Conclusion and final orders 1. As the parties' decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with their decision. 2. The Court notes that the Council has approved, under s 113(4) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending its modification application. 3. The Court orders: 1. The appeal is upheld. 2. Development consent no. DA/1565/2021 is modified in the terms set out in Annexure A. 3. Development consent no. DA/1565/2021, as modified, is Annexure B. …………………. S Dixon Senior Commissioner of the Court Annexure A (144045, pdf) Annexure B (211699, 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: 06 August 2024