32 Bay Pty Ltd v Central Coast Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Central Coast Development Control Plan 2022

Category: Principal judgment

Parties: 32 Bay Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
G McKee (Solicitor) (Applicant)
M Ball (Solicitor) (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Central Coast Council (Respondent)

File Number(s): 2025/278141

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) by 32 Bay Pty Ltd (the Applicant) against the deemed refusal of the development application DA/2092/2024. The development application, as amended, seeks consent for demolition of existing structures and construction of a residential flat building containing 10 apartments over basement parking. The development is proposed at 32 Bay Road, The Entrance (Lot 14 in DP 21024).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 17 December 2025. Following the conciliation conference, the Applicant made amendments to its development application responsive to the Respondent's contentions and the parties reached agreement based on the amended development application. The parties’ agreement is for the grant of consent to the application, as amended, subject to the conditions in Annexure A. This agreement meets the first condition to the exercise of power and obligation of a commissioner to dispose of the proceedings in accordance with the decision of the parties (this being the test applied by s 34(3) of the LEC Act): see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 (McMillan) at [51].

3. As the presiding Commissioner, I am satisfied that the second condition is met, that being the decision is one that the Court can make in the proper exercise of its functions: see McMillan at [51]. I form this state of satisfaction on the basis that:

4. The owner of the Site, 32 Bay Pty Ltd, is the Applicant of the Development Application and landowner consent was provided at the time of lodgement of the development application: s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

5. The Development Application was notified by the Respondent from 28 February to 21 March 2025. No submissions were received.

6. Pursuant to State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) the site is mapped as Coastal Use Area. Division 4, s 2.11 of the SEPP RH outlines requirements for the development on land within the coastal use area. The Statement of Environmental Effects (SEE) which accompanies the development application includes an assessment of the development against the matters listed at s 2.11(a) of SEPP RH. With the assistance of the SEE and the architectural plans I accept the agreement of the parties that I can be satisfied that the development is designed, sited and will be managed to avoid an adverse impact on the following:

(i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(ii) overshadowing, wind funnelling and the loss of views from public places to foreshores,

(iii) the visual amenity and scenic qualities of the coast, including coastal headlands,

(iv) Aboriginal cultural heritage, practices and places, and

(v) cultural and built environment heritage.

4. Section 4.6 of SEPP RH requires the consent authority to consider the contamination of the land when determining the development application. The SEE nominates that a review of historical documents indicates that the site has had long term residential usage. The parties agree, and I accept, that there is no evidence indicating the site may be contaminated. Further, the use of the site is proposed to remain as residential. On the basis of the preceding, and the annexed conditions, I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under the application.
5. State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) applies to the proposed development. The development application is accompanied by an updated BASIX certificate in compliance with the Sustainable Buildings SEPP.
6. The development application is subject to the provisions of State Environmental Planning Policy (Housing) 2021 (SEPP Housing) in two parts. Firstly, at Ch 4 as it proposes residential flat development (and meets the matters at s 144(3)), and secondly at Ch 6 as the development is proposed in a ‘low to mid rise housing inner area’ as mapped by the instrument.
7. The development application is made pursuant to Ch 6 ‘Low and Medium rise Housing’ in SEPP Housing. The Central Coast Local Government Area is a location where the policy applies: s 164(1) of SEPP Housing. Further, the site is located within 800m of The Entrance Town Centre which meets the definition of a low and mid rise housing outer area. Finally, pursuant to s 174 of the SEPP Housing, development for the purpose of a residential flat building is permitted with consent on the site as it is located in R3 Medium Density Zone.
8. Section 176 of SEPP Housing outlines the development standards for land in the R3 Medium Density Residential zone. Pursuant to s 176(2) of SEPP Housing, development consent must not be granted to residential flat development if a resulting building will have a building height of up to 17.5m unless the consent authority is satisfied that the building will have 4 storeys or fewer.
9. The amended development application seeks approval for a building height of 19.01m and six storeys. Accordingly, the development application is accompanied by a written request pursuant to cl 4.6 of the Central Coast Local Environmental Plan 2022 (LEP 2022) to vary the development standard at s 176(2) of SEPP Housing. I find that the written request prepared by GAT & Associates dated February 2026 is well founded and adequately addresses the breach of the height and storeys standard and the matters listed in cl 4.6 of LEP 2022. I am satisfied that the written request has demonstrated that there are sufficient environmental planning grounds and that compliance is unnecessary or unreasonable.
10. In determining the development application, I have considered the ‘Tree Canopy Guide for Low and Mid Rise Housing’ (the Guide), published by the Department in 2025. I accept the agreed submission of the parties that the quantum of deep soil planting, canopy cover and provision for tree planting in the development is consistent with the Guide. Section 177 of SEPP Housing is satisfied.
11. Section 180(3) of SEPP Housing contains several non-discretionary development standards which are met by the development application as follows:

(a) The amended development application has a floor space ratio that is compliant with the standard of 1.5:1. (b) The amended development application relies on a written request to vary the maximum building height standard of 17.5m at s 180(3)(b) of SEPP Housing. The maximum height proposed is 19.01 m and the development application relies on a written request to vary the standard pursuant to cl 4.6 of LEP 2022. I find that the written request prepared by GAT & Associates dated February 2026 is well founded and adequately addresses the breach of the height standard and the matters listed in cl 4.6 of LEP 2022. I am satisfied that the written request has demonstrated that there are sufficient environmental planning grounds and that compliance is unnecessary or unreasonable.

12. The Central Coast Local Environmental Plan 2022 (LEP 2022) applies to the land. Pursuant to LEP 2022, the site is zoned R3 Medium Density Residential, and development for the purpose of a residential flat building is permitted with consent in the zone. As required by cl 2.3 of LEP 2022, in determining the development application, I have given consideration to the objectives of the zone.

13. Pursuant to cl 2.7 of LEP 2022 demolition is permitted with consent in the zone.

14. Pursuant to cl 7.6 of LEP 2022 a consent authority must be satisfied that the services essential to the development are available, or that adequate arrangements have been made to make them available when required. Based on the SEE, and the fact that there are existing sewer and water supply services to the site, I am satisfied of the matters in cl 7.6(2) of LEP 2022.

15. The Central Coast Development Control Plan 2022 (DCP 2022) applies to the site. The SEE filed with the application details the compliance of the proposed development with DCP 2022. In determining the development application, I have considered the provisions of the development control plan pursuant to s 4.15(1) of the EPA Act.

16. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act in s 34(3)(b) also requires me to "set out in writing the terms of the decision".

17. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Notes

6. The Court notes that the Respondent, as the relevant consent authority, has agreed, under ss 37 and 38 of the EPA Regulation, to the Applicant amending Development Application No. DA/2092/2024 to include the documents set out below:

| Plan No. | Revision No. | Plan Title | Drawn By | Dated | | 00 | F | Cover Sheet | Pti Architecture | 18/02/26 | | 01 | F | Project Summary 1 | Pti Architecture | 18/02/26 | | 02 | F | Project Summary 2 | Pti Architecture | 18/02/26 | | 03 | F | GFA & FSR Calculations Ground Floor | Pti Architecture | 18/02/26 | | 04 | F | GFA & FSR Calculations Upper Floors | Pti Architecture | 18/02/26 | | 05 | F | Location Plan | Pti Architecture | 18/02/26 | | 06 | F | Site Analysis | Pti Architecture | 18/02/26 | | 07 | F | Site Plan | Pti Architecture | 18/02/26 | | 08 | F | Ground Floor Plan 1:200 | Pti Architecture | 18/02/26 | | 09 | F | Ground Floor Plan 1:100 | Pti Architecture | 18/02/26 | | 10 | F | Level 1 Floor Plan | Pti Architecture | 18/02/26 | | 11 | F | Level 1 Floor Plan Post Adaptable | Pti Architecture | 18/02/26 | | 12 | F | Level 2-3 Floor Plan | Pti Architecture | 18/02/26 | | 13 | F | Level 4 Floor Plan | Pti Architecture | 18/02/26 | | 14 | F | Roof Plan | Pti Architecture | 18/02/26 | | 15 | F | Sections 1 | Pti Architecture | 18/02/26 | | 16 | F | Sections 2 | Pti Architecture | 18/02/26 | | 16.1 | F | Sections 2 Continued. | Pti Architecture | 18/02/26 | | 17 | F | Elevations North | Pti Architecture | 18/02/26 | | 18 | F | Elevations East | Pti Architecture | 18/02/26 | | 19 | F | Elevations South | Pti Architecture | 18/02/26 | | 20 | F | Elevations West | Pti Architecture | 18/02/26 | | 21 | F | Shadow Diagram June 21 9AM | Pti Architecture | 18/02/26 | | 22 | F | Shadow Diagram June 21 11AM | Pti Architecture | 18/02/26 | | 23 | F | Shadow Diagram June 21 12 Noon | Pti Architecture | 18/02/26 | | 23.1 | F | Shadow Diagram June 21 1PM | Pti Architecture | 18/02/26 | | 23.2 | F | Shadow Diagram June 21 2PM | Pti Architecture | 18/02/26 | | 24 | F | Shadow Diagram June 21 3PM | Pti Architecture | 18/02/26 | | 25 | F | Windows Schedule 1 | Pti Architecture | 18/02/26 | | 26 | F | Windows Schedule 2 | Pti Architecture | 18/02/26 | | 27 | F | Artist Impression | Pti Architecture | 18/02/26 | | 28 | F | Sun Eye Diagrams | Pti Architecture | 18/02/26 | | 29 | F | Sun Eye Diagrams | Pti Architecture | 18/02/26 | | L-01 | H | Cover Sheet | Sitedesign+Studios | 19/02/26 | | L-02 | H | Rear Landscape Plan | Sitedesign+Studios | 19/02/26 | | L-03 | H | Front Landscape Plan | Sitedesign+Studios | 19/02/26 | | L-04 | H | Rear Planting Plan | Sitedesign+Studios | 19/02/26 | | L-05 | H | Front Planting Plan | Sitedesign+Studios | 19/02/26 | | L-06 | H | Level 4 Planting Plan | Sitedesign+Studios | 19/02/26 | | L-07 | H | Roof Level Plan | Sitedesign+Studios | 19/02/26 | | L-08 | H | Planting Details | Sitedesign+Studios | 19/02/26 | | L-09 | H | Existing Tree | Sitedesign+Studios | 19/02/26 | | L-10 | H | Notes | Sitedesign+Studios | 19/02/26 | | C01 | 5 | Sedimentation and Erosion Control Plan | MPC Consulting Engineers | 17/02/26 | | C02 | 1 | Sedimentation and Erosion Control Details | MPC Consulting Engineers | 17/02/26 | | C03 | 5 | Stormwater Plan | MPC Consulting Engineers | 17/02/26 | | C04 | 4 | Stormwater Section | MPC Consulting Engineers | 17/02/26 | | T01 | 3 | Turning Path Entry Plan Sheet 1 | MPC Consulting Engineers | 17/02/26 | | T02 | 3 | Turning Path Entry Plan Sheet 2 | MPC Consulting Engineers | 17/02/26 | | T03 | 3 | Turning Path Entry Plan Sheet 3 | MPC Consulting Engineers | 17/02/26 | | T04 | 3 | Turning Path Exit Plan Sheet 1 | MPC Consulting Engineers | 17/02/26 | | T05 | 3 | Turning Path Exit Plan Sheet 2 | MPC Consulting Engineers | 17/02/26 | | T06 | 3 | Turning Path Exit Plan Sheet 3 | MPC Consulting Engineers | 17/02/26 | | T07 | 3 | Turning Path Plan Refuse Collection | MPC Consulting Engineers | 17/02/26 |

| Document Title | Version No. | Prepared by | Dated | | Apartment Design Guide & State Environment Planning Policy (Housing) 2021 Design Verification Statement | | PTI Architecture | 18/02/26 | | Clause 4.6 Variation – Low and Mid Rise Housing Outer Area (Height of Buildings and Number of Storeys) | 2.0 | GAT & Associates | February 2026 | | Basix Certificate No. 1776494M_04 | | Evergreen Energy Consultants Pty Ltd | 24/02/2026 |

7. The Court orders that:

8. The appeal is upheld.

9. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of the amended application in the agreed amount of $5,000.

10. Development Application DA/2092/2024 for the demolition and construction of a residential flat building (10 apartments) with ground floor carparking on land described as Lot 14 in DP21024, known as 32 Bay Road, The Entrance is determined by the grant of consent subject to the conditions set out in Annexure A.

D Dickson

Commissioner of the Court

Annexure A (264 KB, pdf)

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