Land and Environment Court New South Wales Medium Neutral Citation: Vicary Pty Ltd v Central Coast Council [2025] NSWLEC 1003 Hearing dates: Conciliation conference on 12 December 2024 Date of orders: 07 January 2025 Decision date: 07 January 2025 Jurisdiction: Class 1 Before: Washington C Decision: The Court orders: (1) The appeal is upheld. (2) Development consent is granted to Development Application DA2209/2023 for the demolition of existing structures and the erection of a New Dwelling House at Lot 8 in DP 12022, known as 75 Ocean View Drive, Wamberal. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – dwelling house – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, Coastal Management Act 2016, s 5 Land and Environment Court Act 1979, ss 34AA, 34 Central Coast Local Environmental Plan 2022, cll 2.7, 4.3, 7.1, 7.6 Environmental Planning and Assessment Regulation 2021, ss 27, 38 State Environmental Planning Policy (Resilience and Hazard) 2021, ss 2.10, 2.11, 2.12, 2.13 Category: Principal judgment Parties: Vicary Pty Ltd (Applicant) Central Coast Council (Respondent) Representation: Counsel: T Poisel (Applicant) C Rose (Solicitor) (Respondent) Solicitors: Tyrrells Planning Law (Applicant) Central Coast Council (Respondent) File Number(s): 2023/237002 Publication restriction: Nil Judgment 1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Central Coast Council, of development Application DA/2209/2023 which seeks consent for the demolition of existing structures and the erection of a new dwelling house at Lot 8 in DP 12022, known as 75 Ocean View Drive, Wamberal. 2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 12 December 2024. I presided over the conference, at which the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting consent to the development application subject to conditions. As a result, the matter concluded in conciliation and did not proceed to a hearing. 4. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application to adequately address the Council's contentions. 5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified the in a jurisdictional note. From this I note the following points. Jurisdictional matters 1. The development application was made with the written consent of the owner of the land. 2. The application was adequately notified from 2 to 18 December 2023. Fourteen submissions were received, and two residents made oral submissions at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions. In particular, I note that the parties are satisfied that the proposed development does not rely on a sea wall, and the visual impact of the proposed development from the street has been considered. The parties agree that the amended application does not necessitate renotification. 3. The subject site is zoned R2 Low Density Residential under the Central Coast Local Environmental Plan 2022 (CCLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone. 4. Demolition is permitted with consent pursuant to cl 2.7 of the CCLEP. 5. Pursuant to CCLEP cl 4.3, a maximum building height of 8.5m applies to the subject site which the proposed development, as amended, complies with. 6. Pursuant to CCLEP cl 7.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, however from the parties' submission I accept that the proposed works are not likely to lower the water table below 1 metre Australian Height Datum on any adjacent Class 1, 2, 3 or 4 land. 7. Pursuant to CCLEP cl 7.6, the parties submit and I accept that the site is currently serviced by all listed essential services. 8. Pursuant to s 2.10 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), the site is mapped as within the coastal environment area. From the information contained in the Statement of Environmental Effects by Coastal Planning and Consulting, dated November 2023 (SEE) and the Coastal Engineering Advice report by Horton Coastal Engineering dated 8 November 2023, I accept that the matters listed in s 2.10(1) have been considered, and that as required by s 2.10(2) the proposal is appropriately designed and sited to avoid an adverse impact of the type referred to in s 2.10(1). 9. The site is also mapped as being within the coastal use area pursuant to s 2.11 of the Resilience and Hazards SEPP. Again from the parties' submissions, the Coastal Engineering Advice and the information contained in the SEE, I accept that the matters listed in s 2.11(1) have been considered, and that as required by s 2.11(2) the proposal is designed and sited to avoid an adverse impact of the type referred to in s 2.11(1). 10. Pursuant to s 5 of the Coastal Management Act 2016, the site is located within the coastal zone. For the reasons given in the SEE and the Coastal Engineering Advice, I accept that the proposed development is not likely to increase the risk of coastal hazards on the subject site or any other land, as required by s 2.12 of the Resilience and Hazards SEPP. 11. No coastal management program applies to the site, and therefore s 2.13 of the Resilience and Hazards SEPP does not apply. 12. Section 4.6 of the Resilience and Hazards SEPP requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. The parties submit, and I accept, that there is no known contamination on the site nor any history of contaminating activities and that, subject to the agreed conditions of consent, the site is suitable for the intended, continued residential use. 13. Pursuant to s 27 of the EPA Regulation, a BASIX certificate that relates to the development as amended, accompanies the application. Compliance with this certificate is required under the agreed conditions of consent. Conclusion 1. For these reasons, 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, and that I am therefore 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. The respondent has agreed, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the applicant amending Development Application No DA/2270/2023 to rely on the following plans and documents: Architectural Plans revision 5 prepared by PopovBass dated 6 November 2024 Plan No. Plan Title DA100 Title Page DA101 Site Analysis Plan DA102 Demolition Plan DA103 Excavation Plan DA104 Site Plan DA105 Garage Floor Plan DA106 Level 01 Plan DA107 Level 02 Plan DA108 Roof Plan DA109 North Elevation DA110 South Elevation DA111 East Elevation DA112 West Elevation DA113 Section AA DA114 Section BB DA115 Schedule of External Finishes DA116 Height Plane Diagram DA117 Side Setback Diagram DA118 Side Setback Diagram DA119 Shadow Diagram: 9:00am June 21 DA120 Shadow Diagram: 12:00pm June 21 DA121 Shadow Diagram: 3:00pm June 21 DA122 Shadow Diagram: 9:00am March & September DA123 Shadow Diagram: 12:00pm March & September DA124 Shadow Diagram: 3:00pm March & September DA125 Sun Eye View Diagrams DA128 Site Plan Level 01 DA129 Site Plan Level 02 DA130 Sun Eye View Diagrams DA131 Shadow Diagrams (P.O.S): 9:00am June 21 DA132 Shadow Diagrams (P.O.S): 10:00am June 21 DA133 Shadow Diagrams (P.O.S): 11:00am June 21 DA134 Shadow Diagrams (P.O.S): 12:00pm June 21 DA135 Shadow Diagrams (P.O.S): 1:00pm June 21 DA136 Shadow Diagram: 9:00am June 21 DA137 Shadow Diagram: 12:00pm June 21 DA138 Shadow Diagram: 3:00pm June 21 DA139 Shadow Diagram: 9:00am March & September DA140 Shadow Diagram: 12:00pm March & September DA141 Shadow Diagram: 3:00pm March & September DA142 Section CC DA143 Level 02 View Diagram DA144 Site Plan Basement Landscape Plan issue B prepared by Paul Scrivener Landscape dated 14 August 2024 Plan No. Plan Title 1 of 4 Landscape Site Plan 2 of 4 Details planting plan 3 of 4 North & South Elevation 4 of 4 East & West Elevation Concept Landscape Plan issue D prepared by Paul Scrivener Landscape dated 14 October 2024 1 of 4 Landscape site plan 2 of 4 Details planting plan 3 of 4 North & South Elevation 4 of 4 East & West Elevation Survey Plan revision 04 prepared by Matthew Freeburn Surveyors dated 26 October 2022 Arboricultural Impact Appraisal and Method Statement – Revised prepared by Naturally trees dated 16 August 2024 Letter from Horton Coastal Engineering dated 15 August 2024 Letter from Horton Coastal Engineering dated 17 October 2024 Orders 1. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to Development Application DA2209/2023 for the demolition of existing structures and the erection of a new dwelling house at Lot 8 in DP 12022, known as 75 Ocean View Drive, Wamberal. E Washington 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: 07 January 2025