Baruhoy Investment Pty Ltd v Central Coast Council

Texts Cited: NSW Department of Planning, Apartment Design Guide (July 2015)

Category: Principal judgment

Parties: Baruhoy Investment Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
A Whealy (Solicitor) (Applicant)
M Bell (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
MBM Legal + Conveyancing (Respondent)

File Number(s): 2024/263383

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application no. DA-146/2022 for the demolition of all existing structures and the erection of a five-storey mixed use development comprising two levels of basement car parking, 20 residential units and associated landscaping and site works (DA) at 273-275 Ocean View Road, Ettalong Beach also legally known as Lots 22 and 23 in DP10650 (site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 4 February 2025 with subsequent adjournments. I presided over the conciliation conference.

3. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) to the Applicant amending DA-146/2022 in accordance with the documents listed at below (amended DA).

| TAB | DOCUMENT | DATE | | 1. | List of Changes, prepared by CDA Architects | 26 March 2025 | | 2. | Amended Architectural Plans (Up to Rev H), prepared by CDA Architects • DA 1001 - Cover Sheet (Rev G) – 26 March 2025 • DA 1002 - Compliance Table (Rev F) – 26 March 205 • DA 1003 - Unit Schedule (Rev E) – 25 February 2025 • DA 1005 - Site Plan (Rev E) – 26 March 2025 • DA 1006 - Site Analysis Plan (Rev A) – 26 March 2025 • DA 1007 - Demolition Plan (Rev A) – 27 November 2021 • DA 1100 - Basement Level 02 Floor Plan (Rev G) – 25 February 2025 • DA 1101 - Basement Level 01 Floor Plan (Rev G) – 25 February 2025 • DA 1102 - Ground Floor Plan (Rev G) – 26 March 2025 • DA 1103 - Level 01 Floor Plan (Rev G) – 26 March 2025 • DA 1104 - Level 02 Floor Plan (Rev G) – 26 March 2025 • DA 1105 - Level 03 Floor Plan (Rev G) – 26 March 2025 • DA 1106 - Level 04 Floor Plan (Rev H) – 26 March 2025 • DA 1107 - Roof Terrace Level Plan (Rev H) – 26 March 2025 • DA 1108 - Roof Plan (Rev F) – 26 March 2025 • DA 1109 - Roof Plan- RLS Study (Rev B) – 26 March 2025 • DA 2001 - West & South Elevations (Rev G) – 26 March 2025 • DA 2002 - East & North Elevations (Rev G) – 26 March 2025 • DA 3001 - Sections (Rev G) – 26 March 2025 • DA 5001 - Pre + Post Adaptable Unit Layout Sheet 1 (Rev E) – 26 March 2025 • DA 6001 - Shadow Diagrams (Rev E) – 26 March 2025 • DA 6002 - Shadow Diagrams- DCP Building Envelope (Rev D) – 26 March 2025 • DA 6021 - Solar Access Study- Sheet 1 (Rev F) – 26 March 2025 • DA 6022 - Solar Access Study- Sheet 2 (Rev F) – 26 March 2025 • DA 6023 - Solar Access Study- Sheet 3 (Rev F) – 26 March 2025 • DA 6024 - Solar Access Study- Sheet 4 (Rev F) – 26 March 2025 • DA 6031 - Solar Study- Sun View 21 June @ 9am- Proposed Building & DCP Building Envelope (Rev D) – 26 March 2025 • DA 6032 - Solar Study- Sun View 21 June @ 10am- Proposed Building & DCP Building Envelope (Rev D) – 26 March 2025 • DA 6033 - Solar Study- Sun View 21 June @ 11am - Proposed Building & DCP Building Envelope (Rev D) – 26 March 2025 • DA 6034 - Solar Study- Sun View 21 June @ 12pm - Proposed Building & DCP Building Envelope (Rev D) – 26 March 2025 • DA 6035 - Solar Study- Sun View 21 June @ 1pm- Proposed Building & DCP Building Envelope (Rev D) – 26 March 2025 • DA 6036 - Solar Study- Sun View 21 June @ 2pm- Proposed Building & DCP Building Envelope (Rev D) – 26 March 2025 • DA 6037 - Solar Study- Sun View 21 June @ 3pm- Proposed Building & DCP Building Envelope (Rev D) – 26 March 2025 • DA 7001 - GFA Calculation (Rev H) – 26 March 2025 • DA 7011 - Solar Access Plan (Rev E) – 26 March 2025 • DA 7021 - Ventilation Diagrams (Rev E) – 26 March 2025 • DA 7041 - Finishes Schedule (Rev F) – 26 March 2025 • DA 7051 - LEP Building Height Diagram (Rev E) – 26 March 2025 • DA 7061 - Waste Path of Travel (Rev B) – 26 March 2025 | Various Dates | | 3. | Amended Access Report, prepared by Accessible Building Solutions | 28 March 2025 | | 4. | Amended Design Verification Statement, prepared by CDA Architects | 6 March 2025 | | 5. | Clause 4.6 Variation Request (Floor Space Ratio), prepared by Wales & Associates | 1 April 2025 | | 6. | Clause 4.6 Variation Request (Height), prepared by Wales & Associates | 1 April 2025 | | 7. | BCA Capability Statement, prepared by Credwell | 7 March 2025 | | 8. | Amended Environmental Noise Assessment, prepared by Acoustic Logic | 4 March 2025 | | 9. | Amended Waste Management Plan, prepared by Dickens Solutions | March 2025 | | 10. | Amended Landscape Plans (Rev D), prepared by Canvas • DA-L101 – Landscape Plan – Ground Floor • DA-L102 – Landscape Plan: Level 01 & 04 • DA-L103 – Landscape Plan: Ground Floor • DA-L104 – Landscape typical details & maintenance schedule | 6 March 2025 | | 11. | 3d Photomontages, prepared by CDA Architects | 25 February 2025 | | 12. | Basix Certificate No. 1787653M, prepared by William Wong | 17 March 2025 |

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the amended DA and granting development consent subject to conditions of consent.

5. The final s 34 agreement was submitted to the Court on 30 April 2025.

6. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how these have been satisfied. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

9. I am satisfied that owners consent accompanied the Class 1 appeal.

10. The DA was lodged to Council on 8 February 2022. The Respondent notified the DA between 18 February 2022 to 7 March 2022, 14 October 2022 to 9 November 2022. 48 submissions were received during the first notification period, whilst 28 submissions were received for the later. At the commencement of the conciliation conference, the Court and parties heard oral concerns from several objectors.

11. As the parties have reached agreement, the Court’s role is limited to jurisdictional matters. The merit concerns raised in the submissions have been considered by the Respondent and Applicant.

12. The parties have agreed that s 4.15(1)(b)-(e) of the EPA Act have been considered, as demonstrated in the Statement of Environmental Effects prepared by Wales & Associates dated 17 April 2023.

Gosford Local Environmental Plan 2014

13. Due to the lodgement date of the DA and cl 1.8A of the Central Coast Local Environmental Plan 2022, the DA is saved and the Gosford Local Environmental Plan 2014 (GLEP) applies instead. The site is zoned B2 Local Centre under the GLEP. As per the Statement of Facts and Contentions, the proposed development for a shop top housing is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone. Clause 2.7 applies, which allows demolition with development consent.

14. Clause 4.3 height of buildings applies to the site, permitting a maximum height of 17m. The amended DA is 20.36m at its highest point and seeks a variation to the development standard. The amended DA is supported by a cl 4.6 written request to vary the building height prepared by Wales and Associates dated 1 April 2025 (height written request). The parties are satisfied of the merits of the written request. I accept that the height written request satisfactorily addresses the jurisdictional provisions of cl 4.6, including deemed concurrence of the Secretary, in accordance with s 34(3)(a) of the LEC Act.

15. Clause 4.4 floor space ratio (FSR) applies to the site, permitting a maximum FSR of 2:1. The amended DA proposes an FSR of 2.11:1. The amended DA seeks to vary the development standard pursuant to cl 4.6 and is supported by a cl 4.6 written request to vary FSR prepared by Wales & Associates dated 1 April 2025 (FSR written request). The parties are satisfied of the merits of the FSR written request. I accept that the written request addresses the legally mandatory provisions of cl 4.6, including deemed concurrence of the Secretary, in accordance with s 34(3)(a) of the LEC Act.

16. Clause 7.1 acid sulfate soils and it’s mapping identifies the site as class 4 soil. On the basis of the Geotechnical Desktop Study Report prepared by Alliance dated 23 December 2021 and agreed jurisdiction statement, I accept that an acid sulfate management plan is not required as it is unlikely that acid sulfate soils are present.

17. Clause 7.2 flood planning applies as the site is located in a flood planning area. I accept that the provisions have been satisfied as the minimum ground floor level is met, demonstrated by the amended architectural plans prepared by CDA Architects (architectural plans). The amended DA is supported by a Stormwater Management Plan prepared by Acor Consultants that demonstrates adequate flooding and stormwater management addressing 7.2(3), a reduction in post development water flow and no adverse impacts to water quality. I accept the parties’ agreement that the provisions have been met.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

18. Due to the lodgement date of the DA, the now repealed SEPP applies. An amended BASIX Certificate accompanies the amended DA that meets the requirements.

State Environmental Planning Policy (Housing) 2021

19. Chapter 4 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) applies to the amended DA in accordance with Sch 7A, s 8(2A) and s 144. Section 147 of the Housing SEPP requires consideration of the design principles contained in Sch 9 and the Apartment Design Guide (ADG).

20. Section 29 of the EPA Reg requires that residential apartment development must be accompanied by a statement prepared by a qualified designer in relation to the design principles within Sch 9 of the Housing SEPP and Parts 3 and 4 ADG.

21. The parties agree and I accept that the amended DA meets the provisions of the Housing SEPP on the basis of the updated Design Verification Statement completed by the nominated qualified designer Lilijana Ermilova (registered architect number 7887) dated 6 March 2025. There is no relevant design review panel as defined by SEPP Housing.

State Environmental Planning Policy (Resilience and Hazards) 2021

22. Chapter 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) coastal management applies, as the site is mapped in the Coastal Environmental Area and Coastal Use Area. I accept the parties’ agreement that ss 2.10 and 2.11 have been satisfied as there are no impacts to the foreshore area, beach, coastal headlands, access, water quality, Aboriginal cultural heritage or other heritage items or any other items specified in Chapter 2.

23. The provisions of s 4.6 of SEPP RH apply to the site. The amended DA is accompanied by a Statement of Environmental Effects prepared by Wales & Associates dated April 2023 details that Council has previously stated that the site is not contaminated and that the historical uses would not indicate any contamination. Accordingly, the parties agree, and I accept that the provisions of s 4.6 of SEPP Resilience and Hazards have been satisfied.

Conclusion

24. 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.

25. I have considered the jurisdictional prerequisites, and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

26. 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.

Orders:

27. The Court orders:

28. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of the amendments to the development application in the agreed amount of $8,500.00 within 28 days of these orders.

29. The appeal is upheld.

30. Development Application No. DA-146/2022, as amended, for the demolition of all existing structures and the erection of a five-storey shop top housing development comprising two levels of basement car parking, 20 residential units and associated landscaping and site works at 273-275 Ocean View Road, Ettalong Beach, is determined by the grant of consent subject to the conditions at Annexure A.

S Porter

Commissioner of the Court

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Annexure A (372 KB, pdf)