CC Projects Pty Ltd v Central Coast Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Gosford City Centre Development Control Plan 2018
NSW Department of Planning and Environment, Apartment Design Guide (July 2015)

Category: Principal judgment

Parties: CC Projects Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
M Staunton (Applicant)
L Nurpuri (Applicant)
C Rose (Solicitor) (Respondent)
Solicitors:
Fortis Law (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2023/463256

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the deemed refusal of their development application DA/359/2023. The development application seeks consent for vegetation removal, demolition and construction of a six storey mixed use development comprising of two levels of basement parking, ground floor commercial and five levels of shop top housing comprising 26 residential units. The works are proposed at 19-21 Young Street, West Gosford (Lot 3A and DP 359539 and Lot 4A in DP 376542).

2. The Court arranged a conciliation conference between the parties, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 29 July 2024. The conciliation conference was adjourned to provide the parties the opportunity to seek to resolve their dispute, however the conciliation was terminated on 25 October 2024 and the matter was listed for hearing. In March 2025 the Applicant was granted leave by the Court to amend their development application.

3. Prior to the commencement of the hearing the parties advised the Court they had reached agreement following an adjournment of the hearing, the Court arranged a further conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 April 2025. I presided over the further conciliation conference. The decision agreed upon is for the grant of development consent to the development application, as amended, subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. This agreement meets the first condition to the exercise of power and obligation of a commissioner to dispose of the proceedings in accordance with the decision of the parties (this being the test applied by s 34(3) of the LEC Act): see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 (McMillan) at [51].

4. As the presiding Commissioner, I am satisfied that the second condition is met, that being the decision is one that the Court can make in the proper exercise of its functions (McMillan at [51]). I form this state of satisfaction on the basis that:

5. The development application is lodged with the consent of the owners of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

6. The development application was notified by the Respondent from 2 to 26 June 2023. No submissions were received.

7. 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 previously been used for residential purposes. The Applicant has submitted a Geotechnical Investigation Report in which the assessment of the borehole testing is referred to. The testing identified no contaminants. The parties submit, and I agree, that the is not considered to be contaminated. I am satisfied that the site will be suitable for the purpose of the development application.

8. Further, SEPP RH maps the site as being within the coastal environment area. Accordingly, Division 3 applies to the development application. Section 2.10(1) sets out matters which the consent authority must consider prior to the granting of consent. Those matters are:

(a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,

(b) coastal environmental values and natural coastal processes,

(c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,

(d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,

(e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(f) Aboriginal cultural heritage, practices and places,

(g) the use of the surf zone.

5. The location of the site, distant from the foreshore or waterway, means that most of these matters are not of material relevance to the development application. However, with the assistance of the information provided in support of the development application, including the Statement of Environmental Effects (SEE) and the agreed jurisdictional statement prepared by the parties, I am satisfied that the proposed development is designed, sited and will be managed to avoid an adverse impact on the matters listed at s 2.10(1) of SEPP RH. The precondition at s 2.10(2) of SEPP RH is satisfied.
6. As the development application was lodged on 24 May 2023, the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) still apply by operation of s 4.2(1)(a) of State Environmental Planning Policy (Sustainable Buildings) 2022 which has the affect of maintaining the operation of SEPP BASIX. The development application is accompanied by a BASIX certificate that is reflective of the amended development application. Section 27 of the EPA Regulation is satisfied.
7. The development application proposes residential development of greater than four storeys and accordingly State Environmental Planning Policy (Housing) 2021 (SEPP Housing) applies to the development application. Pursuant to s 29 of the EPA Regulation, the development application is required to be accompanied by a statement from a qualified designer that addresses how the design quality principles for residential apartment development and the objectives in Parts 3 and 4 of the Apartment Design Guide (ADG) have been achieved. A Design Principles Statement, a Design Verification Statement and an ADG compliance table form part of the development application. With the assistance of these documents, I am satisfied that the development application has had adequate regard to the design quality matters for consideration under s 4.15 of the EPA Act, the design quality principles and the ADG.
8. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the Site. The development application proposes the removal of 35 trees. In support of the development application, the Applicant has submitted an Aboricultural Impact Assessment in which the removal of trees has been assessed and considered acceptable. I accept the agreement of the parties that the extent of tree removal is acceptable.
9. Further, pursuant to s 2.7 of SEPP BC, a permit or approval to clear vegetation is not required under this Chapter if it is clearing of a kind that is authorised under the Local Land Services Act 2013, section 60O or Part 5B. This exemption includes any clearing authorised by a development consent under Part 4 of the EPA Act and therefore the proposed tree removal under this application is not subject to the provisions of SEPP BC.
10. The site is located within an area designated B6 Enterprise Corridor by the Land Use Table under Chapter 5 of State Environmental Planning Policy (Precincts – Regional) 2021 (Regional SEPP). Pursuant to s 5.7(2) of the Regional SEPP;

All local environmental plans and deemed environmental planning instruments applying to the land to which this Chapter applies and to other land cease to apply to the land to which this Chapter applies.

11. Accordingly, the Regional SEPP applies to the assessment of the development application. In determining the development application, I have given consideration to the zone objectives which are:

To promote businesses along main roads and to encourage a mix of compatible uses.

To provide a range of employment uses (including business, office, retail and light industrial uses).

To maintain the economic strength of centres by limiting retailing activity.

To provide for residential uses, but only as part of a mixed use development.

12. Development for the purposes of ‘shop top housing’ is permitted with consent in the B6 zone.
13. Section 5.25 of the Regional SEPP prescribes a maximum height of building development standard for the Site of 18m. The DA contravenes this standard by a maximum of 3.20m, equating to an 18% variation.
14. Section 5.46 of the Regional SEPP contains an exception to the height of buildings standard for land in the B6 zone. It relevantly provides:

(3) Development consent may be granted to development on land to which this section applies that results in a building with a height that exceeds the maximum height shown for the land on the Height of Buildings Map, by an amount to be determined by the consent authority, if—

(a) the site area of the development is at least 2,800 square metres but less than 5,600 square metres, or the building will have a street frontage of at least 36 metres, and

(b) a design review panel reviews the development, and

(c) the consent authority takes into account the findings of the design review panel, and

(d) the consent authority is satisfied with the amount of floor space that will be provided for the purposes of commercial premises, and

(e) the consent authority is satisfied that the building meets or exceeds minimum building sustainability and environmental performance standards

15. The requirements of s 5.46 of the Regional SEPP are met as follows:

(a) The site has a street frontage of 40.185m, meeting the requirements of sub cl (a); and (b) On 26 March 2025 the Council referred the DA to the City of Gosford Design Advisory Panel in accordance with subsection (3)(b). The requirement in subsection (3)(b) for a design review panel to ‘review’ the development and for the consent authority to take into account any findings, is a requirement to consult with a design review panel and consider any findings. That requirement is met; and (c) In accordance with subsections (3)(d) and (e) of s 5.46 of the Regional SEPP, the Council is satisfied, and I accept, that the amount of floor space that will be provided for the purposes of commercial premises is sufficient, and that the building meets or exceeds minimum building sustainability and environmental performance standards.

16. In accordance with s 5.39 of the Regional SEPP, the Site is mapped as containing class 5 acid sulfate soils. The Site is within 500m of adjacent Class 2 land, however, in accordance with the addendum geotechnical report prepared by JC Geotechnics and dated 31 March 2025, the works the subject of the DA are not likely to lower the watertable below 1 metre AHD on that adjacent land. I accept that s 5.39 of the Regional SEPP is met.
17. The Site is affected by overland flow. A Flood Information Certificate has been provided by the Council in relation to the Site, which sets out the minimum habitable floor levels. In addition, the Applicant has submitted an Overland Flow Assessment as part of the March Amendments. Section 5.40 of the Regional SEPP requires the consent authority to be satisfied, prior to granting consent, that the development is compatible with the flood hazard of the land, is not likely to significantly adversely affect flood behaviour, incorporates measures to manage risk to life from flood, is not likely to significantly adversely affect the environment and not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. The proposed development incorporates a swale drain along the eastern and northern boundaries of the Site with the top of the walls forming the swale edge set at flood planning level. I am satisfied this measure is adequate to minimise any flood risks.
18. Section 5.45 of the Regional SEPP, Design excellence, applies to the development application as it concerns the erection of a new building. Pursuant to s 5.45(3) development consent cannot be granted for development to which the clause applies unless the consent authority, after considering the matters at s 5.45(4) considers that the development exhibits design excellence. Having reviewed the amended development application against the matters for consideration at s 5.45(4), I am satisfied that the development application exhibits design excellence. My reasoning follows:

(a) Having reviewed the architectural plans, and with the assistance of the Design Principles Statement, the Design Verification Statement and the ADG compliance table form, I am satisfied that form, materials and detailing of the amended proposal achieve a high standard of architectural design. (b) The locality in which the Site is located in transition to higher density forms of residential development. The replacement of the existing site improvements with a new shop top housing development that is consistent with desired future character will improve the quality and amenity of the public domain. (c) There are no nominated view corridors or solar access to key public open spaces that will be impacted by the proposed development: ss 5.52 and 5.53 of the Regional SEPP. (d) That the provisions of the Gosford City Centre Development Control Plan 2018 (DCP 2018) have been considered and the development application is responsive to them. (e) The matters listed at s 5.45(4)(i) to (x) of the Regional SEPP have been considered in the documents in support of the development application. I accept the agreement of the parties that the development appropriately addresses those matters.

19. DCP 2018 applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of the DCP 2018. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

20. Having reached the state of satisfaction that the decision is one that the Court could make 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 in s 34(3)(b) also requires me to “set out in writing the terms of the decision”.

21. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, 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.

22. The Court notes that the Respondent, Central Coast Council, as the relevant consent authority, has under s 38(1) of the EPA Regulation consented to the Applicant amending development application DA/359/2023 in accordance with the following amended plans:

| Tab | Document | Ref No. | Prepared by | Ver. | Date | | 1. | Design Verification Statement | - | Vision Group Architects | - | April 2025 | | 2. | Geotechnical Letter – Response to Clause 5.39 | 2 | JC Geotechnics | 2 | 31 Mar 2025 | | 3. | Stormwater Concept Plans | | Cover Sheet Plan | 000 | Telford Civil | H | 01 Apr 2025 | | Stormwater Concept Plan Basement Level Sheet 1 of 2 | 101 | Telford Civil | H | 01 Apr 2025 | | Stormwater Concept Plan Basement Level Sheet 2 of 2 | 102 | Telford Civil | H | 01 Apr 2025 | | Stormwater Concept Plan Lower Ground Level | 103 | Telford Civil | H | 01 Apr 2025 | | Stormwater Concept Plan Ground Level | 104 | Telford Civil | H | 01 Apr 2025 | | OSD Catchment Plan | 105 | Telford Civil | H | 01 Apr 2025 | | WSUD Catchment Plan | 106 | Telford Civil | H | 01 Apr 2025 | | Hydraulic Analysis Pre & Post Model and Results | 107 | Telford Civil | H | 01 Apr 2025 | | OSD/WSUD/RWT Details and Calculation Sheets Sheet 1 of 3 | 108 | Telford Civil | H | 01 Apr 2025 | | OSD/WSUD/RWT Details and Calculation Sheets Sheet 2 of 3 | 109 | Telford Civil | H | 01 Apr 2025 | | 4. | Public Domain Works | | General Notes, Locality Plan and Drawing Schedule | C000 | Telford Civil | F | 26 Mar 2025 | | Civil Works Layout Plan | C101 | Telford Civil | F | 26 Mar 2025 | | Driveway Profile Longitudinal Sections | C201 | Telford Civil | C | 28 Aug 2024 | | Young Street Longitudinal Section | C301 | Telford Civil | C | 16 Oct 2024 | | Young Street Cross Sections | C401 | Telford Civil | C | 16 Oct 2024 | | Driveway Cross Sections | C402 | Telford Civil | A | 13 Aug 2024 | | Typical Cross Sections | C501 | Telford Civil | B | 13 Aug 2024 | | Construction Notes and Details Sheet Sheet 1 | C601 | Telford Civil | B | 13 Aug 2024 | | Construction Notes and Details Sheet Sheet 2 | C602 | Telford Civil | A | 13 Aug 2024 | | Stormwater Longitudinal Section | C701 | Telford Civil | C | 16 Oct 2024 | | 5. | KH Summary of Car Parking Management System | - | TTPP | - | 28 Mar 2025 | | | Basement Level B1 | H | Vision Group Architects | - | Apr 2025 | | | Basement Level B2 | H | Vision Group Architects | - | Apr 2025 |

8. The Court orders that:

9. The appeal is upheld.

10. Development consent is granted to development application DA/359/2023, as amended, for the demolition and construction of shop top housing consisting of two basement levels plus 6 levels and landscaping, at 19-21 Young Street, West Gosford (Lot 3A and DP 359539 and Lot 4A in DP 376542) subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

Annexure A (299373, pdf)

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