DMCR 2 Pty Ltd v Central Coast Council [2026] NSWLEC 1185

Representation: Counsel:
T Poisel (Applicant)
S Simington (Solicitor) (Respondent)
Solicitors:
Tyrrells Planning Law (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/447168

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 (NSW) (EPA Act) against the deemed refusal of Development Application No. DA/856/2024 for the demolition of an existing dwelling and construction of a part two and part three storey multi dwelling housing development comprising four dwellings (as amended) on land known as 72 Toowoon Bay Road, Long Jetty (Lot 22 in DP 20749) (the Site) by Central Coast Council (Council).

2. The Council remains opposed to the grant of development consent primarily on the basis that the proposal: (1) represents unacceptable bulk and scale (being partly three storey in an area currently represented by one and two storey development); (2) provides for an inadequate front setback; and (3) provides poor amenity in terms of solar access to the private open space (POS) of proposed units 1 and 2. The Council has agreed that other matters initially raised as contentions have either been resolved by amended plans or can be addressed by conditions of consent.

3. For the reasons set out below, I have determined that contrary to the Council’s position the application warrants approval. I find that, having regard to the prevailing planning controls and notwithstanding existing development in the area, the proposed part two and part three storey development is consistent with the desired future character of the area and will provide a reasonable level of solar access to the proposed POS areas of the units. Further I find that the proposed front setback is acceptable in the context of the existing streetscape notwithstanding technical non-compliance with the relevant DCP provision. I also find that the proposed use is consistent with the relevant objectives of the zone and that the likely environmental impacts are both known and acceptable subject to agreed conditions of consent. Accordingly, I have determined that development consent should be granted subject to conditions.

The Application

4. The subject development application was originally submitted to Council on 25 July 2024. The Court granted leave for DMCR 2 Pty Ltd (the Applicant) to amend the application on 10 September 2025, and leave was also granted at the commencement of the hearing to rely on further amended plans and additional documents. Accordingly, the application before the Court, as amended, and as outlined in the Amended Statement of Facts and Contentions (ASOFAC), comprises:

5. Demolition of the existing dwelling and ancillary structures;

6. Tree removal;

7. Construction of a part two and part three storey multi dwelling housing development comprising four dwellings including:

(a) Unit 01: double garage, laundry, sitting room, open plan kitchen/living/dining, WCs, balconies, three bedrooms (one with an ensuite and WIR), and one bathroom over three levels; (b) Unit 02: double garage, laundry, open plan kitchen/living/dining, WC, balconies, three bedrooms (one with an ensuite), study and one bathroom over three levels; (c) Unit 03: single garage, laundry, open plan kitchen/living/dining, WC, balconies, three bedrooms (one with an ensuite and WIR), and one bathroom over two levels; and (d) Unit 04: single garage, laundry, open plan kitchen/living/dining, WC, rear terrace, balcony, three bedrooms (one with an ensuite), and one bathroom over two levels.

4. construction of new internal driveway and visitor parking space;
5. stormwater infrastructure;
6. landscaping; and
7. construction of a new driveway crossover (within the adjacent road reserve).

Key Issues

5. The key issues in the appeal relate to whether the proposal represents an appropriate height, bulk and scale (being partly three storey at the front of the site in an area currently represented predominantly by one and two storey development), whether the proposed front setback is adequate and whether the proposal provides an acceptable level of amenity for the future occupants primarily in respect of solar access to the POS of proposed units 1 and 2.

6. The Council says that the proposal is not compliant with relevant provisions of Central Coast Development Control Plan 2022 (CCDCP) including notably cl 2.2.3.1 which generally provides for a maximum of 2 storeys for multi dwelling housing development with 3 storey development generally only permitted on steeply sloping sites. In this regard it says that while 3 storey development is allowed by the Central Coast Local Environmental Plan 2022 (CCLEP), which specifies a maximum height of 12m on the site, this is envisaged in the form of residential flat buildings which are subject to greater setback requirements under the CCDCP. While the Council acknowledges that the proposal complies with the CCDCP setback requirements, it considers that the setbacks are inadequate as demonstrated by the proposal’s non-compliance with solar access requirements to POS areas. Further the Council says that the front setback does not comply with the relevant control and that the garage located on the immediately adjacent site should not be considered when averaging the setback of the two adjacent dwellings to determine the required front setback as set out in CCDCP.

7. DMCR 2 says that the proposal is appropriate on the subject site and is compliant with the maximum permissible height control outlined in CCLEP and that a control in CCDCP cannot override the height limit in CCLEP in accordance with s 3.42 of the EPA Act. Rather it says that the proposal is consistent with the desired future character of the area which allows for 3 storey development and where there is an existing 3 storey residential flat building (RFB) directly across the road at 77-79 Toowoon Bay Road. DMCR 2 acknowledges that other recent development in the area is limited to one and two storey development however notes that this is related to ‘point in time’ economics and that it is reasonable for the subject proposal to be the “first cab off the rank”. It acknowledges technical non-compliance with solar access to POS areas however considers that this is a factor of site orientation and that adequate access to sunlight is provided for the future residents by the provision of a number of different POS areas with different orientations. In respect of the front setback DMCR 2 considers that given the dominance of the adjacent garage, forward of the front building line at 70 Toowoon Bay Road, it is reasonable in the circumstances to considered the garage in calculating the front setback and that even if it is not included the proposed front setback is only 1.053m short of the requirement (6.442m proposed where 7.495m required). DMCR 2 says that if the garage is included a setback of 5.0875m would be required which is 1.3545m less than the 6.442m proposed. It also says that the proposed setback is consistent with the predominant street setback, that the relevant DCP controls are guidelines only and that in the circumstances the proposal is acceptable.

The site

8. The Site comprises a single allotment being Lot 22 in Deposited Plan 20749 and is located on the northern side of Toowoon Bay Road, between Eloora Road to the east and Gilbert Street to the west in Long Jetty.

Figure 1: Aerial photograph with the Site outlined in yellow (Source: Amended SOFAC - Ex 1)

9. The Site is rectangular in shape with a width of 15.24m, length of 45.75m and a total area of 697.1m². It is generally level, with a maximum surveyed level of 25.75m AHD along the rear boundary and a minimum surveyed level of 24.60m AHD along the front boundary. The site currently contains a single dwelling house, with driveway access along the western side boundary and five canopy trees in the rear yard. The site is adjoined to the east by a single storey development (74 Toowoon Bay Road) and to the west by a two storey dwelling (70 Toowoon Bay Road) with substantial garage (with a width of approximately 50% of the site frontage) in front of the main building line (refer Figure 1 above).

Permissibility

10. The primary environmental planning instrument applying to the site is CCLEP under which the site is zoned R3 Medium Density Residential. In accordance with CCLEP multi dwelling housing is permissible in the R3 Medium Density Residential zone with consent. The objectives of the R3 zone are:

• To provide for the housing needs of the community within a medium density residential environment

• To provide for a variety of housing types within a medium density residential environment

• To enable other land uses that provide facilities or services to meet the day to day needs of residents

• To maintain and enhance the residential amenity of the surrounding area

• To encourage the consolidation of existing lots to facilitate well designed medium density development and to avoid unnecessary isolation of lots.

11. The other key planning controls relevant to the site are cl 4.3 of CCLEP which provides that the maximum height applicable to the site is 12m and cl 4.4 which provides that a maximum floor space ratio (FSR) of 0.9:1 applies. The proposal complies with both these controls having a maximum height of 9.5m and a floor space ratio of 0.68:1.

Public submissions

12. The original application (which proposed 5 units) was notified between 26 July and 16 August 2024 and one (1) objection was received in response from the adjoining neighbour at 74 Toowoon Bay Road. Issues raised include precedence, density, general site planning, streetscape, site coverage, landscaping, amenity and parking.

13. Following amendment of the application the amended plans (proposing 4 units) were renotified from 26 September to 20 October 2025. Two further objections were made in respect of the amended plans including by the adjoining neighbour at 70 Toowoon Bay Road and another nearby property (83 Toowoon Bay Road). Issues raised in the submissions include cumulative impact, height and bulk, solar access, privacy, natural light and ventilation, demolition and construction impact, parking, scale and density, streetscape impacts and amenity.

14. The two immediate neighbours also addressed the Court at the site view at the commencement of the hearing. Issues raised are consistent with those outlined in the submissions at [12] and [13] above.

The expert evidence

15. Expert evidence was adduced in the appeal in respect of town planning and urban design matters in a joint expert report (Planning and Urban Design JER – Ex 4) by Peter Smith and Ravi Sharma engaged by the Applicant and Rebecca Englund engaged by Council.

16. The planning and urban design consultants conferred in respect of the contentions considering the issues under 5 headings including (1) matters resolved, (2) height, setback and contextual fit, (3) solar access and POS, (4) privacy and (5) matters arising from the amended material.

17. Matters that the experts agreed were resolved as a result of the amended plans include deletion of the visitor’s parking space in the front setback (Contention 1.1), the location of the waste collection area (Contention 2.5) and the retention of trees 6 and 7 (Contention 1.3). In addition, the experts agreed that further solar diagrams and analysis have been provided to quantify areas receiving direct sunlight access although the experts do not agree that this demonstrates compliance with the relevant controls or an acceptable level of solar access to the POS areas for Units 1 and 2.

18. The town planning and urban design experts disagree in respect of Contention 1, that is, that the development application should be refused as the proposal is of excessive bulk and scale and is inconsistent with the desired future character of the locality. The experts have addressed the areas of agreement and disagreement in respect of this contention under the heading of Height, Setbacks and Contextual Fit (Ex 4). They agree that the proposal complies with the controls in CCLEP and that generally the context includes a mix of single dwelling houses, dual occupancy development, multi dwelling housing and residential flat buildings (including directly opposite at 77-79 Toowoon Bay Road (Ex 4, par 9, p 5)). They also agree that the proposal generally complies in respect of side setbacks however disagree as to whether multi dwelling housing in the form of 3 storey development is envisaged by the DCP controls and is a contextual fit in the area both in respect of the existing and desired future character.

19. Ms Englund engaged by the Council acknowledges that the proposal complies with the maximum height and FSR in CCLEP but says that these are maximum limits and that the standards are designed to incentivise site amalgamation to accommodate residential flat buildings. She further says that Chapter 2.2 of CCDCP includes controls for multi dwelling housing that generally limit dual occupancies and multi dwelling housing to two storeys in height and provide a series of controls that relate to this two storey limitation (Ex 4 par 16 p 8). Ms Englund agrees that the DCP controls do allow three storey form but considers that this is anticipated in the form of a residential flat building on an amalgamated site with a minimum side and rear setback of 6m. Ms Englund is of the view that multi dwelling housing should be limited to 2 storeys or that if 3 storey development is proposed on the subject site it should be located towards the rear and away from the street frontage. She does not agree that the proposed three storey form is compatible with the existing or desired future character of the area noting a lack of three storey form visible in the streetscape.

20. Mr Smith and Mr Sharma engaged by DCMR 2 take the contrary view and say that the proposed height at a maximum of 9.5m is significantly below the maximum permissible height of 12m in the R3 Medium Density zone and is consistent with Council’s Pre DA advice (Ex E). They further argue that the multi dwelling housing controls in the DCP relate primarily to areas which have a maximum height limit of 8.5m which is consistent with a two storey form. They say that in contrast the subject site has a maximum height limit of 12m and therefore allows for a mix of 1, 2 and 3 storey development albeit that recent proposals, due to economic factors, have been limited to 1 and 2 storey development. Mr Smith and Mr Sharma are of the view that the proposed 3 storey form is acceptable in light of the controls and the intended desired future character.

21. In respect of the front setback Ms Englund is of the view that the proposed front setback (6.442m where Council says a setback of 7.495m is required) does not comply with cl 2.2.5 of CCDCP which requires a front setback that is the average of the nearest 2 dwelling houses excluding outbuildings, garages, porches and the like. She agrees that the proposal is generally consistent with the bare minimum setbacks of other buildings along the street but maintains that it is non-compliant where the control does not aim for consistency along the streetscape but rather directly responds to the immediately adjacent sites.

22. Mr Smith and Mr Sharma in contrast consider that notwithstanding the wording of cl 2.2.5 of CCDCP the significant structure of the garage of 70 Toowoon Bay Road should be considered in establishing the building setback as it is dominant in terms of bulk, scale and massing. Further they say that the proposed setback ensures consistency with the prevailing streetscape setback having regard to that and other development along the street.

23. In relation to solar access and POS, the experts agree that the proposal does not comply with the requirement of cl 2.2.7.5 of CCDCP which requires that on June 21 50% of the required POS area for all dwellings should receive at least 3 hours of unobstructed sunlight access between 9am and 3pm. The required minimum area is 45m2 with a minimum dimension of 4.5m (cl.2.2.7.3). The experts’ disagreement is mostly contained to Units 1 and 2 which have ground floor POS areas as well as above ground POS however part of the ground floor space does not meet the 4.5m minimum dimension. Ms Englund considers that the required 45m2 should be provided at ground level (albeit that it can be in two parts) and that only areas with a dimension greater than 4.5m can be included. Further she notes that the POS areas for Units 1 and 2 do not meet the requirement of 3 hours of direct sunlight to 22.5m2 (50% of the required 45m2) on June 21 between 9am and 3pm. She also points out that the ground level POS of Unit 2 is not directly accessible from a living area as required by the control. Ms Englund considers that the non-compliant POS and solar outcome arise from too many dwellings being located on the site. In respect of Units 3 and 4 Ms Englund concedes that although not technically compliant the ground level north facing POS areas are appropriate. In relation to Units 1 and 2 she also notes that the solar analysis does not include the sliding privacy screens on the upper level balconies and considers that these should be included in the modelling and would necessarily further reduce solar access.

24. Mr Smith and Mr Sharma consider that the POS areas are acceptable notwithstanding the non-compliance and that they are consistent with the objective of the control which is to “facilitate solar access to living areas and private open space for dwellings”. They take the view that adequate solar access is provided to the POS areas given the site orientation which makes full compliance with what they consider to be an onerous control, difficult. They note that other developments with a similar orientation have similarly struggled to achieve full compliance (although this is disputed by Ms Englund) and that in the current case the future residents will have access to adequate solar access within a variety of POS areas. Mr Smith concurs with Ms Englund that inclusion of the proposed sliding privacy screens in the solar analysis will further reduce solar access.

25. The experts also disagree as to whether planted areas on the upper level balconies should be included in the calculation for solar access. Mr Smith considered that it should be included whereas Ms Englund disagrees noting that it is an inaccessible area and therefore does not function as usable open space. Updated solar analysis was provided which excluded the planter areas.

26. In relation to privacy the disagreement between the experts was limited to the upper level POS area of Unit 2 and the associated impact on the neighbour’s rear POS at 74 Toowoon Bay Road. At the conclusion of the hearing the parties were asked to provide agreed conditions of consent which addressed this privacy concern. A condition was provided which proposes a fixed privacy screen to prevent overlooking of the neighbour’s POS area. The Court notes that the inclusion of such a screen will reduce solar access to the upper level POS of Unit 2. Other privacy issues raised in contentions were addressed as agreed by the experts via the amended plans.

27. Further matters arising as addressed by the experts have been resolved via recommended conditions of consent or the by the amended plans. This includes the location of the bin store and inconsistency of the architectural and landscape plans.

Consideration

28. The contentions that remain unresolved between the parties are Contention 1.1 Unacceptable Bulk & Scale and Inconsistent Character and Contention 1.2 Inadequate Amenity. I am satisfied as advised by the parties that Contention 1.3 Waste, 1.4 Unacceptable impacts upon canopy trees and 1.5 Unsuitable Vehicle Access have been resolved by the amended plans. Further Contention 2 in respect of Insufficient information has been addressed by the submission of additional material and Contention 3 Water & Sewer Contentions is addressed by the agreed conditions of consent.

Height, bulk and scale

29. As agreed by the experts the proposal complies with the maximum height of 12 m set by CCLEP having a maximum height of 9.5m. I note that the site is located in the R3 Medium Density Residential zone and that the objectives of the R3 zone are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To maintain and enhance the residential amenity of the surrounding area.

• To encourage the consolidation of existing lots to facilitate well designed medium density development and to avoid unnecessary isolation of lots.

30. While I note that recent development in the area has generally been limited to one and two storey development (although I noted some recent 2 storey buildings in the vicinity which present similar to 3 storeys given extended ceiling heights) I agree with Mr Smith and Mr Sharma that the proposed development is compatible if not consistent with both the existing and desired future character of the area. I accept the argument that the character of the area will change over time and that the form is consistent with that anticipated under the controls including the 12m height limit and the medium density residential zoning. I further agree that where a 12m height limit applies it is unreasonable to limit multi dwelling housing to 2 storeys in height as suggested by the Council with the general exception being on sloping sites. I also note that the proposed third storey is setback approximately 8m from the street frontage to the balcony and approximately 10m to the façade which will ensure that it does not dominate the streetscape. I also concur with Mr Smith and Mr Sharma that location of the 3 storey element closer to the street is preferable in respect of solar and privacy impacts to neighbouring properties.

31. I therefore conclude that the proposal is an acceptable form in terms of bulk and scale and that it is compatible with both the existing and desired future character of the area.

Front Setback

32. In respect of the front setback, I agree that the proposal is technically non-compliant with the DCP front setback control (cl 2.2.5(a)) however consider that the control should be applied flexibly in this instance. I consider that the proposed front setback is consistent with the objective of the control including “to ensure that setbacks are compatible with adjacent development and complements the character, streetscape and natural areas”. I find that in the circumstances it is reasonable to include the substantial garage of the adjacent dwelling at 70 Toowoon Bay Road in calculating the required setback notwithstanding the exclusion set out in the control. I further find that the proposed setback is consistent with the predominant streetscape setback and that it will provide adequate space for landscaping planting.

Solar access and Private Open Space

33. In relation to the proposed POS I note that proposed Units 1 and 2 do not comply with cl 2.2.7.3 of CCDCP (as parts of the ground level POS do not meet the 4.5m minimum dimension) and cl 2.2.7.5 of CCDCP in respect to sunlight access to POS (i.e. that on June 21 50% of the required POS area receive at least 3 hours of unobstructed sunlight access between 9am and 3pm). I note as detailed by Mr Smith in Ex 4 (p18-19) Unit 1 achieves a total of 55m2 of POS although Council would not include 25m2 on the ground floor as it does not comply with the minimum 4.5m dimension having a minimum dimension of 3m. Mr Smith further indicates that Unit 2 achieves 47m2 of POS although 19m2 does not comply with the 4.5m dimension on the ground floor (similarly having a minimum dimension of 3m). I note that these calculations include planters on the upper levels which Ms Englund disagrees with. In terms of solar access, the Supplementary Urban Design and Planning JER (Ex 9) indicates that the POS of Unit 1 will achieve 62.9 sun hours per m2 on 21 June between 9am and 3pm and Unit 2 will achieve 58.9 sun hours per m2. This can be compared to the requirement of 67.5m2 being 22.5m2 (50% of total POS requirement of 45m2 x 3 hours). It is however noted that these calculations do not include the movable privacy screens and include areas on the ground level with a dimension of less than 4.5m. I also note that the ground level POS for Unit 2 is not located directly off a living area as required by the DCP but that the first floor POS area is located directly off a living area. In respect of the exclusion of the privacy screens from the solar access calculations, I consider that while this would reduce solar access to the POS areas on the upper levels, the loss could be minimised through the angle of the louvres and that ultimately the area achieving solar access would still be adequate.

34. Notwithstanding the non-compliances as outlined above, I find that the proposal complies with the objectives of the relevant controls and will notably “ensure private open space areas are functional and responsive to the environment, thereby promoting the enjoyment of outdoor living for residents” (cl 2.2.7.3) and will “… facilitate solar access to the living areas and private open space areas of the dwelling and neighbouring dwellings” (cl 2.2.7.5). I consider that while the proposal is non-compliant with the numerical controls, the future residents of the proposed units will have a high level of amenity with the provision of a number of alternate POS areas which are adequate in area and dimension (minimum of 3m) and that are both functional and will achieve reasonable sunlight access in midwinter and then, by extension, throughout the year. I therefore find that the proposal is acceptable in respect of both POS and solar access to the POS.

Privacy

35. The remaining issue between the parties relates to privacy particularly in respect of the potential for the Level 1 balcony of Unit 1 to overlook 74 Toowoon Bay Road and the Level 1 balcony of Unit 2 to overlook the private outdoor living space of 74 Toowoon Bay Road. While it is noted that the proposal includes movable screens these do not provide the residents of 74 Toowoon Bay Road with certainty regarding privacy. Accordingly, the parties were asked at the conclusion of the hearing to provide agreed conditions of consent which addressed this privacy concern. A condition was provided (condition 2.1B at Annexure A) which proposes fixed privacy screens to prevent overlooking. These screens will reduce solar access however as outlined at [33] above I consider that this is acceptable and necessary to ensure the privacy of the adjoining dwelling. Further the condition proposes to remove a privacy screen shown on the plans on the south facing bedroom of Unit 4 as this is no longer necessary given the fixed screens.

36. All other privacy issues raised in contentions were addressed as agreed by the experts via the amended plans. Accordingly having regard to the proposed condition of consent I find that the privacy impacts of the proposal are acceptable.

Outcome

37. For the reasons set out above I have determined that the application warrants approval. I find that having regard to the amended plans and the proposed conditions of consent the proposed development is appropriate, is consistent with the relevant planning controls and is compatible with the existing and desired future character of the area. Further I find that the proposal is consistent with the relevant objectives of the zone, will provide a high level of amenity to the future residents and that the likely environmental impacts are both known and acceptable. I have therefore determined that development consent should be granted subject to conditions.

38. The remaining contentions have been resolved either by the provision of further information, by agreed conditions of consent, or by agreement of the experts. There are no other issues raised by the Council. Further, the following jurisdictional matters are satisfied:

39. In accordance with the requirements of s 23(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg) the application was made by the owner of the site.

40. The site is located within the coastal use area in accordance with s 2.11 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) and accordingly consideration has been given to the likely impacts on the area as required.

41. Consideration has been given to whether the site is suitable for the proposed use in accordance with the requirements of s 4.6 of the RH SEPP and it has been determined that the site is suitable for the proposed residential purpose having been used for residential purposes for a substantial number of years and as no change of use is proposed.

42. Development consent is sought for the proposed demolition works in accordance with the requirements of cl 2.7 of CCLEP.

43. I am also satisfied that essential services are available to the site on the basis of the existing use as required by cl 7.6 of CCLEP.

44. I am satisfied that the relevant requirements of CCDCP have been adequately considered.

45. I therefore find that development consent should be granted, subject to conditions of consent.

Conditions of consent

40. Following completion of the proceedings the parties provided agreed conditions of consent including as noted at [35] above a condition in respect of the fixing of the privacy screen to the upper level POS of Unit 2. The agreed conditions of consent are at Annexure A.

Orders

41. The Court orders that:

42. The appeal is upheld.

43. Development consent is granted to development application DA/856/2024 for the demolition of an existing dwelling and construction of a part two and part three multi dwelling housing development comprising four dwellings (as amended) on land known as 72 Toowoon Bay Road, Long Jetty (Lot 22 in DP 20749) subject to the conditions of consent at Annexure A.

44. The Exhibits are returned with the exception of Exhibits A, B, C, D & F which are retained.

H Miller

Acting Commissioner of the Court

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Annexure A (326 KB, pdf)