Chess Equity Investments Pty Ltd v Central Coast Council

Parties: Chess Equity Investments Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
T Poisel (Applicant)
C Rose (Solicitor) (Respondent)
Solicitors:
Madison Marcus (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2024/309228

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Central Coast Council of Development Application No DA/1440/2023 for the demolition of existing structures and construction of a new dual occupancy development at Lot 174 DP 10294 (the Site) commonly known as 114 Ocean Parade, Blue Bay.

2. 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 which I presided over was held on 13 March 2025.

Outcome

3. At the conciliation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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 one that the Court could have made in the proper exercise of its functions.

4. 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 Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Statement together with the documents referred to therein, the Amended Class 1 Application and its attachments, the joint reports filed in the proceedings, and the documents that are referred to in condition 1.1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. The Council as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). The plans and documents comprising the amended application were submitted to the Court on 13 March 2025 and are listed under condition 1.1 of the conditions of consent at Annexure A.

Jurisdictional matters

6. 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 can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

Central Coast Local Environmental Plan 2022

7. The development works are for the purposes of a dual occupancy development which is a permissible use in the R1 General Residential zone in which the site is located pursuant to Central Coast Local Environmental Plan 2022 (CCLEP).

8. The consistency of the proposal with the objectives of the R1 General Residential zone has been considered as required by cl 2.3 of CCLEP and the proposal has been assessed as being consistent with those objectives including specifically:

9. To provide for the housing needs of the community

10. To provide for a variety of housing types and densities, and

11. To promote best practice in the design of multi dwelling housing and other similar types of development.

12. The development complies with cl 2.7 of CCLEP as development consent is sought for the proposed demolition.

13. Clause 4.1B provides minimum lot sizes for dual occupancy development on land zoned R1 General Residential being a minimum of 550m2 for attached dual occupancies and 700m2 for detached dual occupancies. The subject proposal provides for an attached dual occupancy and has a site area of 815.6m2 thereby complying with the relevant requirement.

14. The proposed development complies with the maximum height of building control which applies to the site in accordance with cl 4.3 of CCLEP having a maximum height of 9.48m which is below the applicable maximum height of 9.5m.

15. The proposed development complies with the maximum floor space ratio of 0.6:1 which applies to the site in accordance with cl 4.4 of CCLEP having a floor space ratio of 0.59:1.

16. Clause 7.6 of CCLEP provides that development consent must not be granted unless the consent authority is satisfied that essential services (including water, electricity, sewage, stormwater drainage and vehicular access) are available, or that adequate arrangements have been made to make them available, for the proposed development. I am satisfied on the basis of the existing use of the site and the amended plans, that essential services are available to the land.

State Environmental Planning Policy (Resilience and Hazards) 2021

14. The site is located within the Coastal Zone as defined by the Coastal Management Act 2016 and more specifically the ‘Coastal Environment Area’ and ‘Coastal Use Area’ to which Ch 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) applies. I am satisfied on the basis of the joint coastal engineering expert report, the Coastal Engineering Report prepared by Horton Coastal Engineering (21 September 2023) and recommended condition of consent no. 2.3 that relevant matters required to be considered under ss2.10 and 2.11 of the RH SEPP in relation to coastal matters have been considered and are satisfied.

15. Consideration has also been given as to whether the subject site is contaminated as required by Ch 4 s 4.6 of the RH SEPP and the parties agree that the site has a long history of residential use and therefore contamination is unlikely. No further investigation in accordance with the RH SEPP is therefore required.

Other Matters

16. Owner’s consent to the lodgement of the application has been provided in accordance with the requirements of s 23(1) of the EPA Reg with the applicant being the landowner*.*

17. In accordance with s 27 of the EPA Reg a BASIX Certificate was submitted with the Class 1 application (Certificate No 1369969M). This is required to be updated via condition of consent.

18. The development application, in its original form, was notified between 18 August and 1 September 2023. No submissions were received in response to the notification.

Conclusion

19. 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 also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

20. In making the orders to give effect to the agreement between the parties, 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 EP&A Act.

Orders

21. The orders of the Court are:

22. The appeal is upheld.

23. Development Application No DA/1440/2023 for the demolition of existing structures and construction of a new dual occupancy development at Lot 174 DP 10294 commonly known as 114 Ocean Parade, Blue Bay, is determined by the grant of consent subject to the conditions contained in Annexure A.

H Miller

Acting Commissioner of the Court

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Annexure A