COMMISSIONER: At 129 Alan Street, Niagara Park, Apex Intelligent Design Pty Ltd seeks development consent for the construction of a new dwelling with detached garage. A development application seeking the same was refused by Central Coast Council through its local planning panel, on 29 May 2024. Apex appeals against that decision pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [18] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 6 February 2025. I presided over the conciliation conference.
At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties.
The agreement was submitted on 7 February 2025, and follows the agreement of the Council to an amendment to the development application, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000), which continues to apply to the development application due to the savings provision in the Environmental Planning and Assessment Regulation 2021. The amendments include the provision of more detail concerning the finished floor level of the garage, the levels of the proposed driveway and turning area, and the protection of trees.
The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Statement of Jurisdictional Prerequisites that sets out the matters that are required to be satisfied prior to the grant of development consent, together with written submissions prepared by counsel for the applicant. I have considered the contents of the Statement, together with the documents referred to therein, the written submissions, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.
As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties' have agreed upon (see McMillan v Taylor [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons that follow.
The site is part of an area that is identified as a "deferred matter" under the Central Coast Local Environmental Plan 2022 (CCLEP), such that the CCLEP does not apply and the relevant planning instrument is the Interim Development Order 122 (IDO22). The site is zoned 7(a) Conservation and Scenic Protection (Conservation), in which dwelling houses are permissible. A dwelling house is permissible on the site with development consent, pursuant to the zoning table.
Whilst cl 22(1) of IDO22 imposes a minimum lot size of 40ha for the erection of a dwelling house, this does not apply if the requirements of cl 22(4) are met. For the reasons set out in the written submissions and the Statement, Apex can rely on cl 22(4), and, pursuant to cl 22(5), the erection of the dwelling house is designated development. As such, the development application is required by s 4.12(8) to be accompanied by an Environmental Impact Statement (an EIS) "in the form prescribed by the regulations". The development application is accompanied by an EIS dated 24 November 2020.
Sch 2 cl 3 of the EPA Regulation 2000 requires there to be a written application for the Planning Secretary to obtain the "environmental assessment requirements" with respect to the proposed environmental impact statement. Clause 3(5) requires the Planning Secretary to notify the responsible authority of the environmental assessment requirements, and cl 3(8) requires that the environmental impact assessment comply with the environmental assessment requirements. However, with respect to a development of this type, the functions of the Planning Secretary, which were previously the functions of the Director Planning, were delegated to an officer of the Council, pursuant to the EPA Act in an instrument dated 15 January 1991. This delegation remains in force, pursuant to ss 30(1)(b) and 49 of the Interpretation Act 1987, and references to the repealed regulations in the instrument extend to the corresponding provision of the EPA Regulation 2000, pursuant to s 68(3) of the Interpretation Act 1987. The EIS addresses the environmental assessment requirements provided by an officer of the Council on 4 February 2015.
In accordance with cl 29, the IDO22 imposes a maximum height of 8m, but allows minor variations to that maximum height if consent is obtained from the Council. The proposed dwelling has a height of 8.013m, which departs from the maximum height only to a minor extent, and is therefore not inconsistent with cl 29(2).
Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has had no previous use and is densely vegetated at present, it is unlikely to be contaminated.
As a result of savings provisions in the State Environmental Planning Policy (Biodiversity and Conservation) 2021 and the State Environmental Planning Policy (Koala Habitat Protection) 2021, the State Environmental Planning Policy (Koala Habitat Protection) 2020 (SEPP Koala 2020) applies to the site. Based on the Flora and Fauna Assessment dated 17 November 2020, I am satisfied that the land is not potential koala habitat, in satisfaction of cl 8(1) of the SEPP Koala 2020.
The site is in a bushfire prone area. Section 4.14(1A) of the EPA Act allows consent to be granted, even if the development does not conform to the relevant specifications and requirements in the document entitled Planning for Bushfire Protection, if the Commissioner of the NSW Rural Fire Service has been consulted concern measures to protect persons, property and the environment from danger arising from a bush fire. The Council referred the development application to the Commissioner, who made recommendations. Accordingly, s 4.14(1A) of the EPA Act is satisfied.
Further, the development application in the Class 1 Application was accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the EPA Regulation 2000.
Having reached the state of satisfaction that the decision is one that the Court could have made 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 also requires me to "set out in writing the terms of the decision" (s 34(3)(b)).
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or 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.
[2]
Notations
The Court notes:
1. That Central Coast Council, as the relevant consent authority, has agreed under clause 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending Development Application No. DA 60589/2020, in accordance with the following documents which were filed with the Court on 6 February 2025:
1. Architectural Plans, Revision 4, dated 5 February 2025 (sic.) sheets 1-7, prepared by Apex Intelligent Design Pty Ltd;
2. Civil Drawings, Revision P7 (sheets 1-7) dated 3 February 2025 prepared by Beveridge Williams;
3. Supplementary Bushfire Statement prepared by Building Code & Bushfire Hazard Solutions dated 12 December 2024; and
4. Wastewater Management Plan prepared by Larry Cook Consulting Pty Limited dated 4 February 2022.
[3]
Orders
The Court orders that:
1. Leave is granted to the Applicant to amend its appeal and rely on the Further Amended Application listed at [17] above.
2. The appeal is upheld.
3. Development consent is granted to Development Application No DA 60589/2020 for construction of a dwelling house and associated civil works at 129 Alan Street, Niagara Park, subject to the conditions of consent in Annexure 'A'.
[4]
Annexure A
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Decision last updated: 21 February 2025