Artmade Architectural Pty Ltd v Central Coast Council (No 2)

Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.15
Civil Procedure Act 2005, ss 56, 64, 65
Water Management Act 2000
Central Coast Local Environmental Plan 2022, cll 2.3, 4.3, 4.4, 6.2
Education and Care Services National Regulations 2011
Environment Planning and Assessment Regulation 2021, s 23
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.3
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 3.23, 3.26

Cases Cited: Artmade Architectural Pty Ltd v Central Coast Council [2025] NSWLEC 1249
Australia & New Zealand Banking Group Ltd v Larros (1987) 13 NSWLR 286

Texts Cited: Central Coast Development Control Plan 2022
Department of Planning, Industry and Environment, Child Care Planning Guidelines, 2021

Category: Consequential orders

Parties: Artmade Architectural Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
R O’Gorman-Hughes (Applicant)
M Fraser (Respondent)
Solicitors:
Project Lawyers (Applicant)
MBM Legal (Respondent)

File Number(s): 2024/181994

Publication restriction: No

JUDGMENT

1. COMMISSIONER: In a judgment given on 16 April 2025, Artmade Architectural Pty Ltd v Central Coast Council [2025] NSWLEC 1249 (“Artmade v Central Coast”), I gave a decision on an appeal concerning a development application, which as amended, seeks consent for the demolition of existing structures, removal of trees, and construction of a new part two and part three storey childcare centre for 70 children. The development is proposed at 24 Waratah Street, East Gosford (Lot 9 DP 31250).

2. In that decision I found that the appeal lodged by the Applicant was filed at a time when the appeal right was not available. Unfortunately, this was in the context of circumstances where the parties agreed that the relevant jurisdictional preconditions to consent had been met and that the evidence from the experts engaged in the proceedings did not identify any merit reasons which would support the refusal of the application (see [32]-[34] of Artmade v Central Coast). Accordingly, I gave directions for the matter to be relisted for the parties to discuss potential final orders in light of those findings.

3. Following the making of the directions, the matter was listed for case management on 9 May 2025. Following the case management, the parties filed consent orders on 13 May 2025. The consent orders are intended to achieve two outcomes: firstly, to amend the Applicant’s Class 1 Application, the originating process, to ensure that the application was filed at a time that the right of deemed refusal applied, and secondly to grant consent to the development application subject to the conditions agreed between the parties.

4. The parties’ orders reference ss 64 and 65 of the Civil Procedure Act 2005 (CP Act), those provisions are:

64 Amendment of documents generally (cf SCR Part 20, rules 1 and 4; DCR Part 17, rules 1 and 4)

(1) At any stage of proceedings, the court may order—

(a) that any document in the proceedings be amended, or

(b) that leave be granted to a party to amend any document in the proceedings.

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.

(4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party.

(5) This section does not apply to the amendment of a judgment, order or certificate.

65 Amendment of originating process after expiry of limitation period (cf SCR Part 20, rule 4; DCR Part 17, rule 4)

(1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings.

(2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as—

(a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or

(b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court’s opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or

(c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court’s opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process.

(3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced.

(4) This section does not limit the powers of the court under section 64.

(5) This section has effect despite anything to the contrary in the Limitation Act 1969.

(6) In this section, originating process, in relation to any proceedings, includes any pleading subsequently filed in the proceedings.

5. I accept that it is appropriate to make the consent orders on the following grounds:

6. The parties agree, and I accept that, the Court has the power, pursuant to ss 64 and 65 of the CP Act to amend the Applicants Class 1 Application and for that amendment to have taken effect on 5 June 2024: Australia & New Zealand Banking Group Ltd v Larros (1987) 13 NSWLR 286. I am satisfied that given the integrated authority (Water NSW) was notified and has provided General Terms of Approval, the preconditions to consent are satisfied and no merit matters remain in dispute between the parties, it is appropriate to exercise the discretion to make the amendment as to do so is consistent with the overarching purpose of the CP Act: s 56 CP Act.

7. It is appropriate to grant consent to the development application in accordance with the consent orders. Based on the agreed expert evidence before me, I am satisfied that the amended proposal represents a reasonable balance between providing a centre based childcare centre whilst mitigating, to a satisfactory standard, any adverse impacts on the amenity of the adjoining properties and is compatible with the character of the area. As required by s 4.15 of the EPA Act, I have considered all of the evidence against the statutory framework including the objectors’ oral and written concerns and as indicated, I am satisfied that any relevant contentions have been satisfactorily addressed in the amended design and the conditions of consent. For these reasons I have decided to make the orders proposed by the parties by consent.

8. Further, in making these orders I am satisfied that the jurisdictional preconditions are met on the following basis:

9. The development application was lodged with the consent of the owner of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

10. The development application was notified by the Respondent between 19 April and 13 May 2024. As detailed in Artmade v Central Coast at [29] nine submissions were received during the notification and advertisement period. The amended development application was re-notified by the Council commencing 31 January 2025 for a period of 28 days ending 28 February 2025. Further, members of the public addressed the Court at the commencement of the hearing. The development application proposed for approval in this judgment has been amended and additional information provided, in part in response to the concerns raised by submissions. I accept the agreement of the experts that these issues have been addressed, and I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or by the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

11. Chapter 4 (Remediation of Land) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies to the land. Section 4.6 of SEPP RH requires a consent authority to consider the contamination of land when determining a development application. The Site has a historical residential use and is located within an established residential locality. Based on historical records, there is no suggestion that the Site would have been contaminated, Further, the development application includes a Detailed Site Investigation and a Hazardous Materials Survey which were the subject of expert evidence. I accept the conclusion of the experts that the site can be made suitable for the proposed use subject to compliance with the annexed conditions.

12. Pursuant to s 2.3 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), Ch 2 (Vegetation in Non-Rural Areas) applies to the development application. The development application proposes the removal of nominated trees on the site. The parties agree and I accept that the development application also proposes landscape embellishment works which will reduce the bulk and scale of the development, soften the built form and assist in maintaining privacy to neighbouring properties. The parties agree, and I accept, that the relevant provisions of Ch 2 of SEPP BC are met.

13. The Education and Care Services National Regulations 2011 apply to the development application along with the Child Care Planning Guidelines issued by the NSW Department of Planning, Industry and Environment in 2021. Pursuant to s 3.23 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI), the consent authority must take into consideration any applicable provisions of the Child Care Planning Guidelines before determining the application. The Statement of Environment Effects (SEE) accompanying the development application confirms that the proposed development complies with the non-discretionary standards for centre-based childcare facilities at s 3.26 of the SEPP TI. I note that the planning experts agreed evidence is that these provisions are met. I accept the parties’ agreed submission that the development application complies with the relevant matters under the Child Care Planning Guidelines and the Education and Care Services National Regulations, as demonstrated by the SEE.

14. The Central Coast Local Environmental Plan 2022 (LEP 2022) applies to the site. Pursuant to LEP 2022, the site is zoned R1 General Residential. Development for the purpose of “[c]entre-based child care facilities” is permissible with consent in the R2 zone. As required by cl 2.3 of LEP 2023, in determining the development application, I have given consideration to the objectives of the zone.

15. Pursuant to cl 4.3 (Height of buildings) in LEP 2022, and the Height of Buildings Map, a maximum height limit of 8.5m applies. The proposed development complies with the development standard.

16. Pursuant to cl 4.4 (Floor Space Ratio (FSR)) in LEP 2022, and the FSR Map, an FSR of 0.5:1 applies. The proposed development with the development standard.

17. As required by cl 6.2 (Earthworks) of LEP 2023, in determining the development application, I have considered the matters listed at subcl (3). In considering those matters I am assisted by a SEE and the architectural plans which confirm the scope of excavation works. I am satisfied that the earthworks proposed in the development application will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

18. I note that the development application has potential to intersect groundwater during the construction of the basement and requires concurrence from Water NSW, the authority responsible for the consideration and issue of aquifer interference approval under the Water Management Act 2000. WaterNSW has issued general terms of approval dated 5 March 2025.

19. 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.

20. I am satisfied that development consent should now be granted, subject to the conditions of consent annexed.

Orders

8. By consent the Court orders that:

9. Pursuant to s 64(1)(b) of the Civil Procedure Act 2005, leave is granted to the Applicant to amend its originating process by filing an amended Class 1 application annexed to the Consent Orders filed with the Court on 13 May 2025.

10. Pursuant to s 65 of the Civil Procedure Act 2005, the amendment made pursuant to Order (1) is taken to have had effect as from 5 June 2024.

11. The appeal is upheld.

12. Development consent is granted to Development Application No 409/2024 for the demolition of existing buildings and ancillary structures and construction of a childcare centre with basement parking on the land at 24 Waratah Street, East Gosford NSW 2250 subject to the conditions of consent contained in Annexure A.

D Dickson

Commissioner of the Court

**********

Annexure A (344 KB, pdf)

Amendments

12 June 2025

Correction to formatting of Annexure