Land and Environment Court New South Wales Medium Neutral Citation: Bayside Central Pty Ltd v Central Coast Council [2024] NSWLEC 1775 Hearing dates: Conciliation Conference on 12 September 2024 Date of orders: 03 December 2024 Decision date: 03 December 2024 Jurisdiction: Class 1 Before: Kullen AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to development application number DA48/2024 as amended for the demolition of existing structures and construction of four dwellings on the land at Lot 1, Lot 2 and Lot 3 in SP 15362 known as 40 Bogan Road, Booker Bay, subject to the conditions of consent in Annexure A. Catchwords: DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, Sch 1, Div 2, s 7 Land and Environment Court Act 1979, s 34 Central Coast Local Environmental Plan 2022, cll 2.2, 2.3, 2.7, 4.3, 4.4, 7.1 Environmental Planning and Assessment Regulation 2021, ss 27, 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Texts Cited: Central Coast Development Control Plan 2022 NSW Acid Sulfate Soil Management Advisory Committee, Acid Sulphate Soil Manual 1998 Category: Principal judgment Parties: Bayside Central Pty Ltd (Applicant) Central Coast Council (Respondent) Representation: Counsel: D Tyrrell (Solicitor) (Applicant) M Caban (Solicitor) (Respondent) Solicitor: Tyrrell's Planning Law (Applicant) Local Government Legal (Respondent) File Number(s): 2024/105806 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Central Coast Council of development application DA48/2024 (the DA). The DA sought consent for multi-dwelling housing on land described as CP/SP15362, Lot 1, Lot 2 and Lot 3 in SP 15362 known as 40 Bogan Road, Booker Bay. (the site). 2. The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 23 April 2024. 3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 12 September 2024. I presided over the conciliation conference, which commenced with an onsite view, which was not attended by any submitters. 4. At the conciliation conference, the parties advised that they had reached an in- principle s 34 agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. A solar access plan was yet to be provided by the Applicant to the Respondent. Draft conditions of consent were provided to the Applicant by the Respondent at the conciliation conference. 5. The signed s 34 agreement and Annexure A (Conditions of Consent) was filed on 26 September 2024. Amended plans (the amended DA) were filed with the Court on 27 November 2024. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites (Jurisdictional Statement). The Jurisdictional Statement was provided to the Court on 19 September 2024. 6. The parties advise that the amended DA satisfactorily addresses the contentions raised by the Respondent in the SOFAC. 7. In particular, the changes in the amended DA included: 1. Removal of pergola from rear unit; and 2. Front unit set back behind building line. 3. Window treatments on the sides of the units have been altered; 4. Changes to landscaping plan; and 5. Changes to bin location and service area. 1. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 2. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA. 3. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows. Jurisdictional Prerequisites Environmental Planning and Assessment Act 1979 Owner's consent 1. The DA was accompanied by owner's consent forms signed by each of the owners of Units 1, 2 and 3 currently on the site. Community Participation (Sch 1, Div 2, s 7(1) of the EPA Act) 1. The DA was publicly notified between 2 February to 23 February 2024. Two submissions were received objecting to the proposed development. Conditions 1. The s 34 agreement includes the imposition of conditions which are imposed under subs 4.17(1) of the EPA Act. Central Coast Local Environmental Plan 2022 1. The Central Coast Local Environmental Plan 2022 (the LEP) applies to the site and to the proposed development. Under the LEP provisions, the site is zoned R1 General Residential pursuant to cl 2.2 of the LEP; and 1. Clause 2.3 of the LEP permits a multi-dwelling housing with consent in the R1 General Residential zone; 2. Demolition is permitted with consent under cl 2.7 of the LEP; 3. the parties advise that the Court can be satisfied that the proposed development, as amended, is compatible with the R1 General Residential objectives; and 4. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out. 1. Clause 4.3 of the LEP relates to height of buildings. The site has a maximum building height of 8.5m under the LEP. The parties submit that the proposed development has a maximum building height of less than 8.26m, thus complying with cl 4.3 of the LEP. 2. Clause 4.4 of the LEP relates to floor space ratio (FSR). The site is subject to a maximum FSR of 0.5:1 under the LEP. The parties advise that the proposed FSR is 0.46:1, which complies with this requirement. 3. Clause 7.1 of the LEP relates to Acid Sulfate soils. The parties agree that: 1. The proposed development entails minimal excavation in relation to the construction for the building and does not require the preparation of an acid sulfate soils management and the proposal satisfies the requirements of cl 7.1 of the LEP; and 2. Should acid sulphate soils be encountered during construction works, Council would be notified immediately and an Acid Sulphate Soils Management Plan, written in accordance with the NSW Acid Sulphate Soil Manual 1998 would be to be submitted to Council. (It is noted that accompanying the DA is a Geotech Report from 5QS that has assessed the adjoining lot, which has same owner and is considered to provide information relevant to this DA given the proximity of the subject site). State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) applies to the site. The aims of Ch 2 of the Biodiversity SEPP are to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation. 2. The amended DA is acceptable with regard to the Biodiversity SEPP as it does not propose the removal of trees. The site is already developed with three residential units which are to be demolished as part of the proposed development. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. The Applicant submitted BASIX Certificate No 1731576M prepared by Building Sustainability Assessments dated 21 December 2024 with the DA. The parties advise that the BASIX Certificate satisfies the requirement in s 27 of the Environmental Planning and Assessment Regulation 2021 as it has been issued no earlier than 3 months before the date on which the DA was made. State Environmental Planning Policy (Resilience and Hazards) 2021 1. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use; and 1. The parties advise that the site has been used for residential purposes for a substantial number of years, and is proposed to remain residential, and that the Court can be satisfied that consideration of this matter can result in consent being granted; and 2. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development. Central Coast Development Control Plan 2022 1. The parties advise that all of the matters contained in s 4.15 of the EPA Act (including the Central Coast Development Control Plan 2022) which are of relevance to the proposed development have been taken into consideration, and the amended DA is acceptable subject to conditions. Conclusion 1. Having considered the advice of the parties provided above at [11]-[22], I am satisfied that: 1. the Applicant's amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act; 2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; 3. approval of the proposed development is in the public interest. 1. Further, 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. Accordingly, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. The Court notes: 1. that Central Coast Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA48/2024 made on 12 September 2024 to rely on the documents specified below: Plan No. Revision No. Plan Title Drawn By Dated Architectural Plans DA000 B Cover Page ELK Architects 26/02/2024 DA010 P2 Site Analysis Plan ELK Architects 14/02/2024 DA020 P2 Demolition Plan ELK Architects 14/02/2024 DA030 P17 Site Plan ELK Architects 22/08/2024 DA035 P11 Site Coverage Plan ELK Architects 22/08/2024 DA040 P4 Perspectives ELK Architects 22/08/2024 DA100 P14 Ground Floor ELK Architects 22/08/2024 DA110 P12 First Floor ELK Architects 22/08/2024 DA150 P5 Roof Plan ELK Architects 22/08/2024 DA300 P14 Elevations ELK Architects 22/08/2024 DA301 P8 Elevations ELK Architects 22/08/2024 DA350 P7 External Finishes ELK Architects 22/08/2024 DA400 P6 Sections ELK Architects 22/08/2024 DA900 P6 External Shadow Diagrams ELK Architects 22/08/2024 DA901 P6 External Shadow Diagrams ELK Architects 22/08/2024 DA960 P2 Sediment Control ELK Architects 14/02/2024 Landscape Plans 1 of 4 Site Analysis Plan JK's Garden Creations 20/06/2024 2 of 4 Landscape Plan JK's Garden Creations 20/06/2024 3 of 4 Specification Plan JK's Garden Creations 20/11/2023 4 of 4 Construction Street Tree JK's Garden Creations 20/11/2023 Engineering Plans C01 4 Sedimentation and Erosion Control Plan - Sheet 1 MPC Consulting Engineers 12/07/2024 C02 4 Sedimentation and Erosion Control Plan - Sheet 2 MPC Consulting Engineers 12/07/2024 C03 3 Sedimentation and Erosion Control Details MPC Consulting Engineers 21/06/2024 C04 4 Stormwater Plan – Sheet 1 MPC Consulting Engineers 12/07/2024 C05 4 Stormwater Plan – Sheet 2 MPC Consulting Engineers 12/07/2024 C06 3 Stormwater Details and Driveway Sections MPC Consulting Engineers 21/06/2024 C07 4 Stormwater Calculation Summary MPC Consulting Engineers 12/07/2024 T01 3 Turning Path Entry Plan – Sheet 1 MPC Consulting Engineers 21/06/2024 T02 3 Turning Path Entry Plan – Sheet 2 MPC Consulting Engineers 21/06/2024 T03 3 Turning Path Entry Plan – Sheet 3 MPC Consulting Engineers 21/06/2024 T04 3 Turning Path Entry Plan – Sheet 4 MPC Consulting Engineers 21/06/2024 T05 3 Turning Path Exit Plan – Sheet 1 MPC Consulting Engineers 21/06/2024 T06 3 Turning Path Exit Plan – Sheet 2 MPC Consulting Engineers 21/06/2024 T07 3 Turning Path Exit Plan – Sheet 3 MPC Consulting Engineers 21/06/2024 T08 3 Turning Path Exit Plan – Sheet 4 MPC Consulting Engineers 24/06/2024 Waste Management Plan Waste Management Plan Andrey Vinogradov 21/06/2024 Geotechnical Report Geotechnical Report 5QS Consulting Group 1/07/2024 1. The amended DA was filed with the Court on 27 November 2024. 1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to development application number DA48/2024 as amended for the demolition of existing structures and construction of four dwellings on the land at Lot 1, Lot 2 and Lot 3 in SP 15362 known as 40 Bogan Road, Booker Bay, subject to the conditions of consent in Annexure A. G Kullen Acting 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: 03 December 2024