Brickdock Pty Limited v Central Coast Council [2025] NSWLEC 1056 | Case summary

Land and Environment Court (NSW)|2025-01-17

Judgment

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 61806/2021 seeking consent for the demolition of an existing dwelling and construction of a 3 storey residential flat building comprising 6 units (Proposed Development) at 75 Brick Wharf Road, Woy Woy legally described as Lot 39 in Deposited Plan 238232 (the Site).
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 17 January 2025. I presided over the conciliation conference.
The parties agree that all contentions raised in the Statement of Facts and contentions filed on 23 January 2024 (SOFC) have been resolved by the: 1. Amended material referred to at [35], and 2. Agreed conditions of consent.
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 and granting development consent to the development application subject to conditions.
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. 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 parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.
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 to be the terms of cl 4.6 of the Gosford Local Environmental Plan 2014 (GLEP) to vary a development standard. The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional statement provided to the Court.

Vehicular Access

vehicular access to the on-site parking is proposed over adjoining land owned by the council and operated as a public car park, which is not a public road and part of which is classified as community land over which there is no power to grant an easement for access in favour of the Site.
Deferred commencement condition is required to enable the Respondent to grant appropriate legal rights of access to the rear of the Site over adjoining land owned by the Respondent and which is currently classified as community land under the Local Government Act 1993. The reclassification to operational land will allow the Respondent to not only grant the required right of access over that land to the subject site, but to regularise access to the rear of other land near the subject site where such access already exists by similar grants of legal rights to such access. For that reason, the Court can have sufficient confidence that the deferred commencement condition is likely to be satisfied and that it is therefore an appropriate and lawful condition.
Georges River Council v Eskander [2024] NSWLEC 98, Robson J at [57]: "Further, while it is clear that something less than a formal or binding promise is required, I find that there must be some form of objective and tangible proof to constitute an arrangement as something "made". It is in this context that I accept the words quoted by Stein JA in Codlea at 378, to the effect that such an arrangement must be "at least, a willingness on the part of the relevant authorities to co-operate in a consensual way…". However, as Stein JA also found, proof of such an arrangement must "exist" and must "pre-exist the 'satisfaction' of [the] council with [it]". It is in this sense that I consider the comments of Preston CJ of LEC in Crighton Properties, that "arrangement", within the context of an environmental planning instrument, means "something in the nature of an understanding between two or more persons" (at [42]), should be seen. Again, considered in this way, the fact that the arrangement is tangible, gives a consent authority the ability then to determine if the qualities or characteristics of an arrangement that has been made for the supply of (in this case, suitable vehicular access) a service in the future, is "adequate"."

Height of buildings development standard

Pursuant to cl 4.3 of the GLEP, the Site is subject to a maximum height of building (HOB) development standard of 11m. The proposed maximum HOB is 11.3m which represents a 2.7% variation to the development standard.
The applicant relies on a written cl 4.6 variation prepared by Clarke Dowdle & Associates dated 13 January 2025. The following extracts are provided, which detail the environmental planning grounds that support the variation of the development standard: "For the reasons outlined above the clause 4.6 variation to the GLEP 2014 Height of Building provision is provided in support of the multi-dwelling development proposal at 75 Brick Wharf Road, Woy Woy. As outlined above the RFB development has been designed to work within the land constraints and the applicable planning controls applicable to the site. As such: Compliance with the development standard would be unreasonable and unnecessary in the circumstances of this case; The development achieves the objectives of the development standard and, in fact, requiring a complaint development would undermine one of these objectives (relying on Webhe Test 1) and is consistent with the objectives of the R1 Medium Density Residential zone; and There are sufficient environmental planning grounds to justify the contravention. In particular the small exceedance of the height control is justified by the requirement for a minimum floor level for flood planning purposes. The consent authority can be satisfied to the above and that the development achieves the objectives of the development standard and is consistent with the objectives of R1 General Residential zone notwithstanding non-compliance with the heigh of building development standard and is therefore in the public interest. The concurrence of the Secretary can be assumed in accordance with Planning Circular PS 20-002. On this basis, therefore, it is appropriate to exercise the flexibility provided by clause 4.6 in the circumstances of this application."
The Court is satisfied that the applicant's written request seeking to justify the contravention of the HOB development standard in cl 4.3 of the GLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the GLEP.

Floor Space Ratio development standard

Clause 4.4 Floor Space Ratio of the GLEP prescribes the maximum floor space ratio (FSR) for development. The Site is identified on the FSR Map as having a maximum FSR of 0.85:1, however, the provisions at cl 4.4(2A)(c) of the GLEP apply to development on land in Zone R1 General Residential, and further limit the maximum prescribed FSR to 0.6:1 for residential flat buildings where the Site area is less than 1000m2 and where car parking is provided at ground level.
The Site has an area of 931m2 and would therefore allow a maximum GFA of 558.6m2 to be achieved. The Proposed Development proposes a GFA of 574.25m2 which equates to an FSR of 0.62:1 representing an additional 16.19m2 or a 2.9% variation to the development standard.
The Applicant relies on a written pursuant to cl 4.6 of the GLEP to justify the contravention of the FSR development standard prepared by Clarke Dowdle & Associates dated 15 October 2024. The following extract from par 11 of the Written Request is reproduced as follows: "For the reasons outlined above the clause 4.6 variation to the GLEP 2014 Floor Space Ratio provision is provided in support of the multi-dwelling development proposal at 75 Brick Wharf Road, Woy Woy. As outlined above the RFB development has been designed to work within the land constraints and the applicable planning controls applicable to the site. As such: Compliance with the development standard would be unreasonable and unnecessary in the circumstances of this case; The development achieves the objectives of the development standard and, in fact, requiring a complaint development would undermine one of these objectives (relying on Webhe Test 1) and is consistent with the objectives of the R1 Medium Density Residential zone; and There are sufficient environmental planning grounds to justify the contravention. The consent authority can be satisfied to the above and that the development achieves the objectives of the development standard and is consistent with the objectives of R1 General Residential zone notwithstanding non-compliance with the floor space ratio development standard and is therefore in the public interest. The concurrence of the Secretary can be assumed in accordance with Planning Circular PS 20-002. On this basis, therefore, it is appropriate to exercise the flexibility provided by clause 4.6 in the circumstances of this application."
The Court is satisfied that the applicant's written request seeking to justify the contravention of the FSR development standard in cl 4.4 of the GLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the GLEP.
The Site is located within a high (Class 2) acid sulfate zone and pursuant to cl 7.1 'Acid Sulfate Soils' of the GLEP, the consent authority is required to consider any potential acid sulfate soils affectation so that it does not disturb, expose or drain acid sulfate soils and cause environmental damage.
The Proposed Development does not propose basement excavation other than for foundations, and will not involve works by which the water table is likely to be lowered.
The parties agree that the application includes an Acid Sulphate Assessment Report filed with the Class 1 Application at Tab 18 which provides Site Specific Acid Soil Management Strategies to be used for soils excavated below about 0.8m depth.
The Site is mapped by Woy Woy Peninsula Flood Study as having a 1% Annual Exceedance Probability (AEP) flood level of Reduced Level (RL) 1.61m Australian Height Datum (AHD). There are flood planning provisions in cl 5.21 of the GLEP which are satisfied as follows: 1. Filed with the Class 1 Application at Tab 17 is a Flood Information Certificate dated 26 March 2021 prepared by the Respondent council that stipulates that the minimum residential floor level is to be 2.31m AHD being derived from the maximum 1% AEP Flood Level on the property plus allowance for sea level rise plus 500mm freeboard. 2. The proposed ground floor level is in accordance with Chapter 6.7 - Water Cycle Management of the Gosford Development Control Plan 2013 (GDCP 2013).
The parties explained that the terms of cl 5.10 of the GLEP regarding heritage have been considered and provided a copy of the 8 June 2023 Shoalhaven Council Business Paper to the Central Coast Local Planning Panel which includes a Development Assessment Report for the Proposed Development. The Development Assessment Report includes an assessment of the application against cl 5.10 of the GLEP and at page 39 confirms that "The proposal does not have any unreasonable impacts on the heritage significance of heritage item and is considered to be consistent with this clause of the GLEP 2014."
The parties explain further that since the preparation of the Development Assessment Report, the amendments to the Proposed Development provide greater side setbacks to the adjoining heritage building at 77 Brick Wharf Road. The parties agree that this has reduced and improved any impact on the heritage item and that the Court can be satisfied as required by cl 5.10(4) of the GLEP.
The State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) commenced on 1 March 2022 and repealed the State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP) and the State Environmental Planning Policy No 55 Remediation of Land (SEPP 55). In that regard the Development Application was made on 1 June 2021 and refused on 8 June 2023.
While the Resilience and Hazards SEPP includes a savings and transitional provision as regards the Coastal Management SEPP (s 2.18), it relates only to applications made pursuant to Part 5 of the Act. Therefore, the Coastal Management SEPP does not apply to the Proposed Development. However Chapter 2 of the Resilience and Hazards SEPP applies and is dealt with below at [32]-[34].
The Resilience SEPP does not include a savings and transitional provision as regards SEPP 55 or pending applications to which SEPP 55 applied. Accordingly, Chapter 4 Remediation of Land applies to the Proposed Development which deals with contamination. In accordance with s 4.6 of the Resilience and Hazards SEPP, there has been consideration as to whether the Site is contaminated. The Statement of Environmental Effects filed with the Class 1 Application at Tab 7 provides, at par 4.2, that the historical use of the Site has been for domestic residential purposes, and there are no known previous uses that would lead to the Site being contaminated or unsuitable for the proposed use for a residential flat building.
A BASIX certificate 1198451M_03 issued by Building Sustainability Assessments dated 2 December 2024 in accordance with the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 was prepared as a revision of certificate number 1198451M lodged 15 May 2021 with application 61806/2021. The BASIX Certificate satisfies the requirement in s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) as it was issued no earlier than 3 months before the date on which the Development Application was made.
Chapter 2 Coastal Management of the Resilience and Hazards SEPP seeks to ensure that future coastal development is appropriate and sensitive to the coastal environment. The site is identified as being located within a Coastal Environment Area (CEA) and Coastal Use Area (CUA).
Council is required to have regard to the matters for consideration identified under ss 2.10 and 2.11 which relate specifically to development within the CEA and CUA, as well as those additional matters identified under ss 2.12 and 2.13 of the Resilience and Hazard SEPP (development in the coastal zone generally).
The parties agree that the Proposed Development has been assessed against ss 2.10, 2.11, 2.12 and 2.13 of the Resilience and Hazards SEPP and has been found to be consistent with the requirements for developments within the CEA and CUA and will not result in any impact on the coastal values sought to be protected by Chapter 2
Apartment Design Guide, which is referenced by cl 28(2) of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65). The SEPP 65 was repealed on 14 December 2023 by the State Environmental Planning Policy Amendment (Housing) 2023. In any event the parties agree that the Proposed Development meets the nine (9) quality principles as set out in the Apartment Design Guide Compliance Report prepared by Ian Bassett & Partners dated 1 October 2024.
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. I adopt the reasons given by the parties.
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.

Notations:

The Court notes: 1. The Respondent has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant's amendment of Development Application No 61806/2021 in accordance with the following amended plans and documents: Architectural Plans revision 15 prepared by Howard Leslie & Associates dated 14 January 2025 Plan No. Plan Title Revision (20693-DA/s34) 0.0 Drawing Lists & Symbols 15 0.1 Planning 15

0.2 General Notes 1 15 0.3 General Notes 2 15 0.4 Shadow Diagrams 15 0.5 Shadow Diagrams 15 0.6 Shadow Diagrams 15 0.7 Privacy - Controlled Onsite 15 0.8 Privacy - Impact from Proposal 15 0.9 Privacy - impact from Proposal 15 1.0 Site Analysis Plan 15 1.1 Site Pre-construction works plan 15 1.2 Site Plan 15 1.3 Setback Plan 15 1.4 Landscape Site Plan / Bins 15 1.5 Landscape Plan L1 15 1.6 Landscape Plan L2 15 1.7 Landscape Details 15 1.8 Landscape Plant Examples 15 1.9 Landscape DSZ 15 2.0 Plan Ground 15 2.1 Plan Level 1 15 2.2 Plan Level 2 15 2.3 Plan Roof 15 2.4 Accessibility 15 2.5 GFA Plans 15 2.6 Ventilation Diagrams 15

3.0 Building Sections 15 3.1 Building Sections 15 3.2 Building Sections 15 4.0 Building Elevations N&S 15 4.1 Building Elevations E&W 15 5.0 Entry Stairs and Platform Lift 15 5.1 Wall Details 15 6.0 Door & Window Schedule 15 6.1 Material Schedules 15 7.0 External Views 15 Notification Site Plan prepared by Howard Leslie & Associates Plan No. Plan Title Revision (20693-DA/s34) 9.0 Notification Site Plan 15 9.1 Notification Elevations 15 9.2 Notification Shadow Diagrams 15 Stormwater Management Plans prepared by ACOR Consultants dated 29 August 2024 Plan No. Plan Title Revision C1 Cover Sheet & Notes F C2 Stormwater Management Plan - Part 1 F C3 Stormwater Management Plan - Part 2 F C4 Stormwater Management Details Sheet No. 1 F C5 Stormwater Management Details Sheet No. 2 F C6 Erosion & Sediment Control Plan F

C7 Erosion & Sediment Control Notes & Details F C8 Stormwater Quality Report Sheet 1 F C9 Stormwater Quality Report Sheet 2 F C10 Stormwater Quality Report Sheet 3 F Vehicle Turning Paths Plan prepared by ACOR Consultants dated 14 June 2024 Plan No. Plan Title Revision V1 Vehicle Turning Paths Sheet 1 of 2 C V2 Vehicle Turning Paths Sheet 2 of 2 C Apartment Design Guide Part 1 to 5 Compliance Report prepared by Ian Bassett & Partners dated 1 October 2024 Clause 4.6 Variation (FSR) prepared by Clarke Dowdle & Associates dated 15 October 2024 Clause 4.6 Variation (Height of Building) prepared by Clarke Dowdle & Associates dated 13 January 2025 BASIX Certificate No. 1198451M_03 prepared by Building Sustainability Assessments dated 2 December 2024 BASIX Stamped Architectural Plans prepared by Howard Leslie & Associates No. #HR-0M0R18-01 stamped on 2 December 2024 Plan No. Plan Title Revision 2.0 Plan Ground 15 2.1 Plan Level 1 15 2.2 Plan Level 2 15 2.3 Plan Roof 15 2.6 Ventiliation Diagrams 15 3.0 Building Sections 15 3.1 Building Sections 15

3.2 Building Sections 15 4.0 Building Elevations N&S 15 4.1 Building Elevations E&W 15 5.1 Wall Details 15 6.0 Door & Window Schedules 15 Nationwide Housing Energy Rating Scheme Certificate No. Certificate Description Date Generated #HR-0M0R18- 01 75 Brick Wharf Road, Woy Woy 2 December 2024 #HR- LDUP7H-01 Unit 01, 75 Brick Wharf Road, Woy Woy 2 December 2024 #HR-Q3X0BL- 01 Unit 02, 75 Brick Wharf Road, Woy Woy 2 December 2024 #HR-A3CO09- 01 Unit 03, 75 Brick Wharf Road, Woy Woy 2 December 2024 #HR- 2C4QG2-01 Unit 04, 75 Brick Wharf Road, Woy Woy 2 December 2024 #HR- 3UZZCW-01 Unit 05, 75 Brick Wharf Road, Woy Woy 2 December 2024 #HR- MCK0H8-01 Unit 06, 75 Brick Wharf Road, Woy Woy 2 December 2024

Orders:

The Court orders: 1. The appeal is upheld. 2. The written request, prepared by Clarke Dowdle & Associates dated 15 October 2024, pursuant to cl 4.6 of the Gosford Local Environmental Plan 2014 seeking variation to the floor space ratio development standard, pursuant to cl 4.4, is upheld. 3. The written request, prepared by Clarke Dowdle & Associates dated 13 January 2025, pursuant to cl 4.6 of the Gosford Local Environmental Plan 2014 seeking variation to the height of building development standard, pursuant to cl 4.4, is upheld. 4. Development consent is granted to development application number 61806/2021 for construction of a residential flat building (6 units) on the land at Lot 39 in DP 238232, known as 75 Brick Wharf Road, Woy Woy.

Annexure A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 February 2025

Brickdock Pty Limited v Central Coast Council

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Judgment (11 paragraphs)

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Cases Cited (1)