Land and Environment Court New South Wales Medium Neutral Citation: Smith v Central Coast Council [2020] NSWLEC 1145 Hearing dates: Conciliation conference on 17 March 2020 Date of orders: 27 March 2020 Decision date: 27 March 2020 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1) The appeal is upheld. (2) Development application no. DA52472/2017 for the relocation of existing house and construction of new shed and stables, as well as implementation of Vegetation/Bushland Management Plan annexed to the conditions of consent, at 100 Bakali Road, Foresters Beach is approved subject to the conditions in Annexure "A". Catchwords: DEVELOPMENT APPLICATION – relocated dwelling with new shed and stables – flooding – bushfire – EEC – conciliation conference – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Act 2016 Biodiversity Conservation (Savings and Transitional) Regulation 2019 Environmental Planning and Assessment Act 1979 Gosford Interim Development Order No. 122 Gosford Local Environmental Plan 2014 Land and Environment Court Act 1979 Local Government Act 1993 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 19 – Bushland in Urban Areas State Environmental Planning Policy No 71 – Coastal Protection Threatened Species Conservation Act 1995 Texts Cited: Australian Standard Construction of Buildings in Bushfire Prone Areas AS 3959-2009 Gosford Development Control Plan 2013 Planning for Bushfire Protection Guide 2006 Category: Principal judgment Parties: Darcy Peter Smith (Applicant) Central Coast Council (Respondent) Representation: Counsel: J Doyle (Applicant) J Cole (Solicitor) (Respondent) Solicitors: DC Balog & Associates (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2018/358078 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 52472/2017 by Central Coast Council (the Council) for the relocation of an existing dwelling, and construction of a new deck, a shed and stables on Lot 9 DP 8857, also known as 100 Bakali Road, Foresters Beach (the site). 2. The DA under appeal was lodged with Council on 13 July 2017, and formally refused by Council on 29 May 2018. The development proposal seeks to: relocate to the site an existing (timber framed) house; construct a timber decking, a (colorbond) shed and stables; and build a dam. Also, associated with these structures are new service roads (to allow access), piers and concrete pads, bushfire protection works and environmental protection/conservation works. 3. The DA specifically proposes the following: * Relocation of a single level pre-constructed aluminium clad dwelling with dimensions of 9.75m x 11.35m. The structure will be on newly constructed brick piers to raise it off the ground. * Construction of a timber deck with dimensions of 2.1m x 4.7m attached to one side of the dwelling. * Construction of a stable and shed with colorbond material on a concrete pad to a dimension of 6m x 13.3m and 112m x 12m, respectively. * All structures will be centrally located on the site, elevated from the natural ground surface on a filled area that extends 27 m in radius from the outer walls of the proposed dwelling location. * The area around the fill area will be cleared of trees, although onsite water management for the dwelling and stables will be located in this area. 1. The access road (that will form Bakali Road within the site) to the dwelling pad is to be formed by crushed gravel, thereby elevating the road above the natural ground level. It connects the dwelling pad, which is also elevated, to the already formed Bakali Road turning head, over a new culvert (that will cross the Council's drainage reserve). 2. Pursuant to s 8.2(1)(a) of the Environmental Planning and Assessment Act 1979 (EPA Act), on 20 June 2018, the applicant lodged a request for review of the DA, as refused by Council. On 25 October 2018, Council resolved to adhere to the original refusal of the DA. 3. Thereafter, the applicant lodged a Class 1 appeal against the refusal of the DA, pursuant to s 8.7(1) of the EPA Act. 4. At the conciliation conference for this appeal, held on 17 March 2020 as arranged by the Court, pursuant to s 34(1) of the Land and Environment Court Act 1979 (the Court Act), an agreement was reached between the parties. 5. In response to notification of the DA, there was one submission in objection, although no resident submission was made during the conciliation. 6. On 5 March 2020, the Court granted leave for the applicant to rely on amended plans, and for the respondent to file an amended Statement of Facts and Contentions (SoFC), in response to the amended plans. The amended SoFC was filed with the Court on 10 March 2020. 7. In the amended plans, the applicant sought to delete reference to a dam and its associated infrastructure. The proposed location of the dwelling, shed and stables, with associated road, pad/piers and other works are now centrally located on the site, as shown on the amended plans. 8. Based on these amended plans, together with the DA's supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 52472/2017 with conditions. 9. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to ss 4.14 and 4.15(1) to grant consent to DA 52472/2017, with conditions and plans to be relied upon described in Annexure 'A'. 10. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, to satisfy ss 4.14 and 4.15(1) of the EPA Act, as consistency with the: Threatened Species Conservation Act 1995 (TSC Act); Biodiversity Conservation Act 2016 (BC Act); Biodiversity Conservation (Savings and Transitional) Regulation 2019 (BC Reg); State Environmental Planning Policy No 19 – Bushland in Urban Areas (SEPP 19); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); and Gosford Interim Development Order No. 122 (IDO 122). 11. In addition, the Gosford Development Control Plan 2013 (GDCP), the Rural Bushfire Service's (RFS) Planning for Bushfire Protection Guide 2006 (the BP guide) and Australian Standard (AS) 3959-2009 Construction of Buildings in Bushfire Prone Areas (AS3959-2009) are of consideration to grant consent to the DA. 12. The parties agree that the site is located on bushfire prone land, identified on Council's Bush Fire Prone Land Map (2008). Therefore, s 4.14 of the EPA Act must be satisfied to grant consent to the DA under appeal. 13. The requirements that relate to appropriate dwelling design in bushfire prone land are described in AS 3959-2009, and specifically for this development includes a description of the Bushfire Attack Level (BAL) rating. The parties agree that the dwelling and deck should be designed for a 'BAL 19' rating. 14. In addition, issues relevant for considerations of the DA are described in the BP Guide, which include the designation of an Asset Protection Zone (APZ). The parties agree that the proposed 27m APZ is satisfactory. The conditions of consent address the requirement for a survey to accurately locate the APZ on the site relative to the dwelling structure. 15. The parties agree that the BAL rating and APZ relate to the areas defined by the dwelling and deck, and do not relate to the shed and stables, pursuant to the relevant guidance documents. The parties are satisfied that the requirements for protection from bushfire risk are resolved and that there are no jurisdictional issues to grant consent to the DA that relate to compliance with s 4.14 of the EPA Act. 16. Endangered Ecological Communities (EEC) are identified on the site, as listed under Schedules of the TSC Act and BC Act. From 25 February 2018, in most local government areas, a new local development application, as assessed under Part 4 of the EPA Act, is subject to the biodiversity assessment requirements of the BC Act. For these developments, the transitional arrangements will not apply. 17. The site is located within an 'Interim Designated Area' as defined by the Minister of Environment. Based on the timing of the DA, when submitted to Council and the location of the site within an 'interim designated area', pursuant to cl 27(1)(f1) and (3A)(a) of the BC Reg, the DA is considered under cl 28(1), as an 'interim planning application'. Therefore, the DA is assessed according to the 'former planning provisions', defined in cl 27(1), as the provisions of the EPA Act, specifically s 4.15. The parties agree that the requirements of the TSC Act and BC Act do not apply to consideration of this DA. 18. The parties agree that the contentions that relate to EEC's on the site are satisfactorily resolved by the amended plans and conditions of consent. Specifically, the requirement to protect the EEC's by the location of the structures and the provision of a Vegetation Management Plan (VMP), considered from a detailed site evaluation, leads the parties to agree that the requirements of s 4.15 of the EPA Act are satisfied to grant consent to the DA. The parties agree a Species Impact Statement is not a requirement for this DA. 19. The site adjoins Council's Coastal Open Space System Reserve (COSSR), located to the west and south of the site. Therefore, compliance with the requirements of SEPP 19 is required for the proposed development. 20. The DA is supported by a site assessment, as described in the conditions of consent. The parties agree that the requirements of SEPP 19 are satisfied by the proposed VMP, as provided in the conditions of consent. The parties consider that the relevant contentions relating to the adjoining (COSSR) reserve land are resolved. 21. The proposed development is required to comply with the provisions of SEPP BASIX. An updated BASIX Certificate No. 8290855, dated 22 November 2018, relevant to the proposed development is identified in the conditions of consent in compliance with the SEPP BASIX. 22. The site is located within an area defined in the Land Application Map of the Gosford Local Environmental Plan 2014 as a 'Deferred Matter', pursuant to cl 13(1A). The DA for this site is therefore assessed under the provisions of the IDO 122. The site is zoned as 7(a) Conservation and Scenic Protection (Conservation), and the proposed development is permissible with consent in this zone, pursuant to cl 22(2) of the IDO 122. 23. The satisfaction of the relevant zone objectives, as established in cl 5(1) of the IDO 122 to grant consent to the DA, in addition to the objectives relating to ecological sustainable development in the Local Government Act 1993, are set out in cl 5(3) of the IDO 122. The parties agree that these are satisfied by the proposed development. 24. The parties are satisfied that the relevant requirements of the IDO 122, which relate to building material (cl 28), height (cl 29) and position (cl 30) are resolved. 25. The parties agree that based on the amended flood impact assessment report and the amended plans, the proposed development is located above the 1:100 year flood level and will therefore not be or cause detrimental impact to onsite residents, the site's dependent ecosystems or areas offsite, as a result of flooding. 26. The Gosford Development Control Plan 2013 (GDCP) is relevant for consideration in the granting of consent for the DA, and specifically: Chapter 2.1 as it relates to character; and Chapter 3.1 as it relates to dwelling houses. 27. The proposed development has been considered and has had regard to the existing development on the site and surrounding development, and is consistent with the character of the area. 28. The parties agree that there are no unreasonable impacts to adjoining properties as a result of the proposed development. Based on the amended plans and conditions of consent, the contentions raised by Council and issues raised by objectors that relate to the controls as specified in the GDCP are resolved to the satisfaction of the parties. 29. The parties agree that the proposed development was publicly notified in accordance with the GDCP. During the notification period for the DA under appeal, one submission in objection was received by Council. This submission was considered by the parties, prior to reaching the agreement and is resolved to the parties' satisfaction. 30. The amended plans that relate to the proposed development have been considered in the context of the site. Based on the amended plans and supporting documents to the amended DA, the contentions raised by Council and all jurisdictional requirements are resolved to the satisfaction of the parties. 31. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 52472/2017 should be granted, as it satisfies the requirements of ss 4.14 and 4.15(1) of the EPA Act. 32. 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. 33. The Court orders: 1. The appeal is upheld. 2. Development application no. DA52472/2017 for the relocation of existing house and construction of new shed and stables, as well as implementation of Vegetation/Bushland Management Plan annexed to the conditions of consent, at 100 Bakali Road, Foresters Beach is approved subject to the conditions in Annexure "A". ………………………… Sarah Bish Commissioner of the Court Annexure A (2.69 MB, 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: 27 March 2020