Access Strata Pty Ltd v Central Coast Council

Land and Environment Court (NSW)|2024-07-03

The applicant filed the amended plans and documents outlined above with the Court on 5 July 2024.

Orders

The Court orders that: 1. The applicant is to pay the respondent's costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 2. The appeal is upheld. 3. Development consent is granted to Development Application No. DA/1847/2023, as amended, for the demolition of existing structures, amalgamation of two land parcels, removal of identified trees, and the construction of a single storey 85 place centre based child care facility with basement level parking on land legally described as Lot 22, Lot 23 and Lot 24 in Deposited Plan 21348, subject to the conditions at Annexure A.

The Education and Care Regulations provides extensive controls and requirements in addition to that of the TISEPP, Central Coast Local Environmental Plan 2022 (CLEP) and Central Coast Development Control Plan 2022 (CDCP).
Compliance with the Education and Care Regulations is assessed at pp 62-64 of the Amended SEE.

The Subject Land is zoned R1 General Residential under the CLEP. Accordingly, the proposed development, being a "centre-based child care facility" is permissible with consent in the R1 zone. I have had regard to the zone objectives which are extracted below:
- To provide for the housing needs of the community.
- To provide for a variety of housing types and densities.
- To enable other land uses that provide facilities or services to meet the day to day needs of residents.
- To promote best practice in the design of multi dwelling housing and other similar types of development.
- To ensure that non-residential uses do not adversely affect residential amenity or place unreasonable demands on services.
An assessment of the proposed development against the R1 zone objectives is set out at pp 66-67 of the Amended SEE. The parties agree that the Amended Development Application is consistent with the objectives of the R1 zone.
Clause 4.3 of the CLEP prescribes a maximum building height of 8.5m. The parties agree that the Amended Development Application complies with this development standard.
Clause 4.4 of the CLEP prescribes a maximum floor space ratio (FSR) of 0.5:1. The parties agree that the Amended Development Application complies with this development standard.
Clause 7.1 of the CLEP relevantly provides that development consent is required for the carrying out of specified works on land shown on the Acid Sulfate Soils Map. The parties agree that the Subject Land is mapped as Class 5 Acid Sulfate Soils (ASS). The Amended Development Application proposes a basement carpark which has a maximum extent of cut depth of 2 metres below the natural ground surface. The Subject Land is located within 500m of Class 1 and Class 2 land.
However, the parties agree that:

(1) considering the small scale of the development and extent of cut across the Subject Land, the water table is unlikely to be lowered below 1m Australian Height Datum on the adjacent Class 1 and Class 2 land; and

(2) the Amended Development Application does not involve works that require the preparation of an Acid Sulfate Soils management plan in accordance with cll 7.1(2) and (3) of the CLEP.

Therefore, I am satisfied that the relevant provisions in cl 7.1 of the CLEP have been adequately addressed by the Amended Development Application and there is no impediment to the grant of development consent on the basis of cl 7.1.
Clause 7.6 of the CLEP relevantly provides that development consent must not be granted to development unless the consent authority is satisfied that all of the services essential for the development are available or that adequate arrangements have been made to make them available when required. In determining the Amended Development Application, I am satisfied of the matters required in cl 7.6 of the CLEP on the basis that:

(1) the Subject Land is already serviced by all essential services;

(2) a driveway is provided off Brougham Street to provide vehicular access to the development and is supported by a Traffic and Parking Impact Assessment (tab 7 of the Class 1 Application);

(3) the Amended Development Application is accompanied by stormwater engineering plans (tabs 3 and 4 of the Amended Development Application) and all necessary landowners' consent for the proposed drainage easement have been obtained (see [13 ] above);

(4) the Amended Development Application is accompanied by an Operational (Ongoing) Waste Management Plan (tab 11 of the Amended Development Application); and

(5) the Agreed Conditions require relevant certificates and approvals to be obtained.

The parties are satisfied that all relevant provisions of the CDCP have been taken into consideration in the assessment and determination of the Amended Development Application.

The parties agree that the matters listed in s 4.15(1) subs (b), (c) and (e) are considered generally in the Amended SEE.
In respect of s 4.15(1)(d) of the EPA Act, the Development Application was publicly exhibited between 24 November 2023 and 18 December 2023. One written submission objecting to the proposed development was received in response to the notification of the proposal.
The Amended Development Application was not re-notified on the basis that the respondent formed the view that the amendments did not increase environmental impacts.
I am satisfied that the written submission has been taken into consideration in the assessment and determination of the Amended Development Application.

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.
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.
The Court notes that:

(1) The respondent has approved, under cl 38(1) of the Environmental Planning and Assessment Regulation 2021, the applicant amending Development Application No DA/1847/2023 in accordance with the following amended plans and documents:

Combined Demolition/Construction and Operational (Ongoing) Waste Management Plan - Rev 1.2

Deed of Agreement to Grant Easement and Access Licence (Ref No. 3446-5864-1677v3)

Redacted Deed of Agreement to Grant Easement and Access Licence (Ref No. 3446-5864-1677v3)

(2) The applicant filed the amended plans and documents outlined above with the Court on 5 July 2024.

(1) The applicant is to pay the respondent's costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. DA/1847/2023, as amended, for the demolition of existing structures, amalgamation of two land parcels, removal of identified trees, and the construction of a single storey 85 place centre based child care facility with basement level parking on land legally described as Lot 22, Lot 23 and Lot 24 in Deposited Plan 21348, subject to the conditions at Annexure A.

Planning and Assessment Act 1979

Environment Court Act 1979

(Education and Care Services) Supplementary Provisions Regulation 2012

Education and Care Services National Regulations 2011

Planning and Assessment Regulation 2021

State Environmental Planning Policy (Biodiversity and Conservation) 2021

The Amended Development Application proposes the removal of trees to facilitate the proposed development.
The parties agree that as the Amended Development Application seeks development consent to remove the identified trees, Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) relating to permits, is not enlivened due to the BC SEPP regulating a different and separate scheme to seeking development consent under the EPA Act (see Stewart v Inner West Council [2023] NSWLEC 136).
The parties agree, and I accept, that there is no matter that would prevent consent being granted for the removal of the identified trees proposed to facilitate the proposed development.

At a glance

Court

Decision date

Source

Judgment (18 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (1)