Land and Environment Court New South Wales Medium Neutral Citation: Furfaro v Central Coast Council [2019] NSWLEC 1337 Hearing dates: Conciliation conference on 2 July 2019 Date of orders: 19 July 2019 Decision date: 19 July 2019 Jurisdiction: Class 1 Before: Bindon AC Decision: Orders below at [8] Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Sam Furfaro (Applicant) Central Coast Council (Respondent) Representation: Counsel: L Nurpuri (Respondent) Solicitors: Pikes and Verekers (Applicant) J Palmer, Central Coast Council (Respondent) File Number(s): 2019/51402 Publication restriction: No JudgmenT 1. COMMISSIONER: This is a Class 1 appeal brought to the Court under s 8.25 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Central Coast Council (Council) of a Building Information Certificate (BIC) Application (reference 11447 of 2018) for a basement garage and associated vehicle access ramp, and ground level commercial/retail development. The BIC application relates to a development consent issued by Council on 21 September 2011 (the DA consent) – Council reference DA40057/2011. 2. On 9 May 2018 a separate but related application to modify the DA consent, pursuant to s 4.55(2) of the EPA Act was lodged with Council (the s 4.55 modification application). The s 4.55 modification application is also the subject of an appeal to the Court, made pursuant to s 8.9 of the EPA Act against the deemed refusal by Council to modify development consent No 40057/2011 (LEC case number 2018/354923). 3. The BIC application was lodged after the s 4.55 modification application under the provisions of s 6.23 of the EPA Act in December 2018. It relates to some of the works addressed in the s 4.55 modification application that was then pending determination by Council. The applicant sought determination of the two applications concurrently due to their inter-relationship. 4. As the two applications essentially relate to the same matter, and as agreed between the parties, the Court arranged a conciliation conference for both matters under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). I presided over that conciliation conference on 2 July 2019. At the request of the parties no site inspection involving me was held. 5. Prior to the Court's conciliation conference the parties had conferred, the plans were amended slightly and the parties reached an in-principle agreement based on those amended plans and certain additional information as specified in Part B of the agreement and carried into these Orders. Leave was sought to rely on the agreed amended plans. 6. The parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The amendments agreed to include 1. relocating the vehicle ramp to the basement from Hudson Lane to the rear of the building (north east façade) via an external ground level driveway and parking area off Hudson Lane; 2. reconfiguring the basement vehicle ramp from a curved to a straight ramp; 3. Widening the car park ramp to 3.6m where possible between the structural columns, including by shifting the stairs adjacent to the ramp, and increasing the number of parking spaces in the basement to 18; and 4. Amending the finished floor level (FFL) of retail units 1 to 4 to RL 3.30 being the 1% AEP flood level. 1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, 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 orders: 1. The Applicant is granted leave to rely on the following amended plans and additional documentation: 1. Civil Engineering Plans by Rosycivil Pty Ltd: Drawing Description Sheets Issue Date S00.00 Notes - - - S03.00 Basement Plan & Details - F 25/06/19 S03.01 Basement BTM Reinforcement - A 21/05/19 S03.02 Basement Reinforcement - B 21/05/19 S04.00 Ground Floor Plan - E 26/06/19 S04.01 Ground Floor Bottom Reinforcement Plan - C 21/05/19 S04.02 Ground Floor Top Reinforcement Plan - C 21/05/19 S04.03 Ground BTM Extra Reinforcement Plan - B 21/05/19 S4.04 Ground Floor Top Extra Reinforcement Plan - B 21/05/19 S04.10 Ground Floor Sections Sheet 1 - C 25/06/19 S04.11 Ground Floor Sections Sheet 2 - B 25/06/19 S05.00 Level 1 Plan - B 21/05/19 S05.01 Level 1 Bottom Reinforcement Plan - B 21/05/19 S05.02 Level 1 Top Reinforcement Plan - B 21/05/19 S05.03 Level 1 BTM Extra Reinforcement Plan - B 21/05/19 S05.04 Level 1 Top Extra Reinforcement Plan - B 21/05/19 S05.10 Level 1 Sections - A 14/05/17 1. Civil Engineering Certification by Rosycivil Pty Ltd: Document Date Structural Certificate – proposed penetrations for ground floor slab for installation of the flood gates will not compromise the structural integrity of the slab 25/06/19 Structural Certificate – proposed ramp extension for pedestrian access complies with relevant Australian Standards (AS 4100) and is structurally adequate to support loads as described in AS 1170 (Loading Code) 01/07/19 Structural Certificate – Reinforcement for basement slab inspection 22/10/2016 complies with drawings S03.00D, S03.01A & S03.02B 25/06/19 Structural Certificate – Reinforcement for ground floor slab inspection 18/04/2017 complies with drawings S04.00C, S04.01C, S04.02C, S04.03B, S04.03B, S04.04B, S04.10A & S04.11A 25/06/19 Structural Certificate – Reinforcement for first floor slab inspection 5/08/2017 complies with drawings S05.00B, S05.01B, S05.02B, S05.03B, S05.04B & S05.10A 25/06/19 Structural Certificate – Reinforcement for basement walls and columns inspection 19/12/2016 complies with drawings S10.00B & S12.00 25/06/19 Structural Certificate – piles inspection 19/07/2015 in accordance with drawings S04.00C & S04.10A and are structurally sound to support loads as described in AS1170 (Loading Code) 25/06/19 1. Survey works as Executed Plans, Ref: 55073 Floor Plans, Rev B, 3 sheets - Basement Level, First Floor, Ground Floor prepared by Barry Hunt Associates and dated 21 May 2019 1. The Appeal is upheld. 2. The Respondent is directed to issue a Building Information Certificate within 14 days for the partially completed building at 15 Church St, Terrigal, as depicted in the plans referred to at Order (1)(c) above. ………………………. J Bindon Acting Commissioner of the Court 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: 19 July 2019