EBH Property Investments v Central Coast Council

Legislation Cited: Biodiversity Conservation Act 2016 (NSW), ss 7.7, 7.13
Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.47, 8.7, 10.3
Land and Environment Court Act 1979 (NSW), s 34
Roads Act 1993 (NSW), s 163
Rural Fires Act 1997 (NSW), s 100B
Water Management Act 2000 (NSW), s 90
Biodiversity Conservation Regulation 2017 (NSW), cll 7.1, 7.2
Central Coast Local Environmental Plan 2022, cll 2.3, 2.6, 2.7, 5.21, 5.23, 6.2, 7.5, 7.6
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
State Environmental Planning Policy 2021 (Biodiversity and Conservation), Ch 2, ss 2.3, 2.6, 3.6, 3.7
State Environmental Planning Policy 2021 (Resilience and Hazards), s 4.6
State Environmental Planning Policy 2021 (Transport and Infrastructure), s 2.119

Cases Cited: Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183
MKY Enterprises (Aust) Pty Ltd v Central Coast Council [2025] NSWLEC 1123

Texts Cited: Australian Standards, AS 2021:2015: Acoustics—Aircraft noise intrusion, 25 March 2015
Central Coast Development Control Plan 2022

Category: Principal judgment

Parties: EBH Property Investments Pty Ltd (Applicant)
Central Coast Council (First Respondent)
Transport for NSW (Second Respondent)

Representation: Counsel:
D Tyrrell (Solicitor) (Applicant)
S Simington (Solicitor) (First Respondent)
H Kalarostaghi (Solicitor) (Second Respondent)
Solicitors:
Tyrrells Planning Law (Applicant)
Lindsay Taylor Lawyers (First Respondent)
Hunt and Hunt (Second Respondent)

File Number(s): 2024/420134

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This appeal is lodged by EBH Environmental Property Investments Pty Ltd pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of Development Application No DA/787/2024. The development application, as amended, seeks consent for a three-lot subdivision, public road, intersections, removal of trees and demolition of existing structures at Lot 23 in DP 259530 known as 201 Sparks Road, Halloran and all works associated with the construction of a turning facility east of the intersection of Sparks Road and Jack Grant Avenue, Warnervale.

2. An initial conciliation conference was held of 5 March 2025 pursuant to pursuant to s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The proceedings were adjourned to provide the parties with an opportunity to seek to resolve their dispute, but the conciliation was ultimately terminated and the matter listed for hearing on 20 October 2025. On 30 September 2025, Transport for NSW was joined as the Second Respondent. The hearing was adjourned by the Court with the consent of the parties. A further conciliation conference was held on 20 February 2026. The parties' agreement is for the grant of consent to the application, as amended, subject to conditions. 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].

3. 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: see McMillan at [51]. I form this state of satisfaction on the basis that:

4. The development application was made by PM Anderson Pty Ltd as agent for EBH Environmental Property Investments Pty Ltd: The owner has standing to commence the proceedings: Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 at [43].

5. The Respondent has provided consent as owner of the land the subject of the proposed turning facility east of the intersection of Sparks Road and Jack Grant Avenue, Warnervale.

6. The development application was notified from 21 June to 19 July 2024. One submission was received objecting the development. After the development application was amended the Respondent exercised discretion to not undertake renotification as the amendments had the effect of reducing the impacts of the development. I am satisfied that the submissions have been considered in the determination of the development application by either amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

7. Sparks Road (the frontage of the site) is a classified road under the Roads Act 1993 (NSW) (Roads Act) and is declared a main road in schedule of Classified Road and Unclassified Regional Roads, prepared and published by Transport for NSW pursuant to s 163 of the Roads Act. The sites southern boundary has frontage to Sparks Road, as such the proposed development falls within s 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI).

8. Pursuant to s 2.119(2), the consent authority must not grant consent to development on a classified road unless it is satisfied that:

2.119 Development with frontage to classified road

…

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of-

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

6. The development application includes a Traffic Impact Assessment (TIA) and a Road Safety Audit. The site has no alternative road access excepting Sparks Road. Proposed Lot 1 has been created to enable the land to be acquired by the appropriate authority under the Central Coast Local Environmental Plan 2022 (LEP 2022) in the event that Sparks Road is widened. I am satisfied that s 2.119(2)(a) is met.
7. The TIA concludes that the amended development application, which proposes the construction of the U-Turn facility and restricts access to the site to a left-in left-out intersection, will not adversely affect the adjoining local and state road network. All works associated with the U-Turn facility will be at the full cost of the Applicant and are required to be constructed prior to the issue of a Subdivision Works Certificate. Further the TIA concludes that the proposed development will not reduce the level of service of Sparks Road. The development was referred to Transport for NSW who, as the Second Respondent have reached agreement to the amended development application subject to the imposition of conditions. Those conditions are included in Annexure A. On this basis I accept the agreement of the parties, and I am satisfied that s 2.119(2)(b) is met.
8. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) requires the consent authority to consider the contamination of the land when determining the development application. The development application is accompanied by a Preliminary Site Investigation (PSI) and a Supplementary PSI which together conclude that the site is suitable for the proposed industrial subdivision subject to the implementation of the report’s recommendations. Compliance with the recommendations of the PSI and the Supplementary PSI is required by the conditions in Annexure A. The requirements of s 4.6 of SEPP RH are satisfied.
9. The provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) apply as the development seeks approval for clearing of vegetation in non-rural land. The development application is accompanied by an Arborist Impact Assessment, a Biodiversity Management Plan and a Weed Management Plan. Further, the impact of the proposed clearing is assessed in the BDAR. Consistent with ss 2.3 and 2.6 of SEPP BC, the development consent includes consent for the proposed vegetation clearing. The requirements of Ch 2 of SEPP BC are met.
10. Pursuant to ss 3.6 and 3.7 of SEPP BC, the consent authority is required to determine whether the land is potential koala habitat or core koala habitat prior to the grant of consent. With the assistance of the BDAR and the Statement of Environmental Effects, I accept the agreement of the parties that the site is not potential nor core koala habitat.
11. The development application is integrated development under s 4.47(2) of the EPA Act as an approval under s 100B of the Rural Fires Act 1997 (NSW) is required as the land is identified on the Respondent's Bushfire Prone Land Map certified under s 10.3 of the EPA Act. The development application includes a Bushfire Threat Assessment. The development application was referred to the NSW Rural Fire Service who issued General Terms of Approval on 18 July 2024.
12. Further, the development application is integrated development for the purposes of s 90 of the Water Management Act 2000 (NSW) as it requires a water supply work approval. The development application was referred to the Department of Planning and Environment – Water who issued General Terms of Approval on 9 January 2025.
13. The development application is accompanied by a Streamlined Biodiversity Development Assessment Report (SBDAR) that encompasses the impacts arising from the works on the site at Sparks Road and the site of the U-turn facility. The SBDAR was required as the development application proposes clearing that exceed the applicable clearing threshold at cll 7.1 and 7.2 of the Biodiversity Conservation Regulation 2017 (NSW) (BC Regulation). As the proposed development includes the clearing of vegetation to an extent that exceeds the biodiversity offsets scheme threshold pursuant to cl 7.2(4), a biodiversity development assessment report is therefore required pursuant to the Biodiversity Conservation Act 2016 (NSW) (the BC Act). Consistent with s 7.7 of the BC Act, the development application includes the BDAR The conclusion of the SBDAR is that, following the required assessment detailed in the Biodiversity Assessment Methodology, the report has quantified the current biodiversity values of the site and calculated the biodiversity offset credits applicable for the residential impacts of the development, following the application of the avoid, minimise and mitigation efforts.
14. Pursuant to s 7.13 of the BC Act, I have considered the likely impact of the proposed development on biodiversity values as assessed in the BDAR. The parties agree, and I am satisfied, that the applicable provisions of the BC Act and the BC Regulation have been satisfied, and that the agreed conditions of consent will meet the requirements of s 7.13(3) of the BC Act. The retirement of the identified Biodiversity Offset Credits is required by the annexed conditions.
15. The LEP 2022 applies to the land. Pursuant to LEP 2022 the site is zoned SP 2 Infrastructure, E4 General Industrial and C2 Environmental conservation. As required by cl 2.3 of LEP 2022, in determining the development application, I have given consideration to each of the applicable zone objectives. Subdivision is permitted with consent in each of the zones pursuant to cl 2.6 of LEP 2022.
16. As amended the development application does not propose to subdivide any land that is zoned C2 Environmental Conservation which is to be held in a single lot. Concurring with the reasoning of the Court in MKY Enterprises (Aust) Pty Ltd v Central Coast Council [2025] NSWLEC 1123 at [87-88], I accept the reasoning of the parties that the minimum lots size is not applicable and the subdivision is permissible.
17. The portions of the site zoned E4 General Residential and SP2 Infrastructure are not subject to a minimum subdivision lot size standard.
18. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2022.
19. The northern half of the site is located on land identified on the 1% Annual Exceedance Probability (AEP) Map. Accordingly, cl 5.21 ‘Flood Planning’ of LEP 2022 applies. The development application is accompanied by a Water Cycle Management Plan and a Flood Impact Assessment. That report concludes that firstly, in a 1% AEP event there are very minor flood impacts on adjacent lots that could be readily mitigated and secondly, that the concept design proposed by the development application is sound with regards to flood impact. Having considered the matters at cl 5.21(3), the provision requires the consent authority to be satisfied by the matters listed at cl 5.21(2) of LEP 2022. I find I can be so satisfied on the basis of the Flood Impact Assessment.
20. Clause 5.23 ‘Public Bushland’ of LEP 2022 applies to the C2 zoned portion of the land. Pursuant to cl 5.23(4) development consent cannot be granted to development that will disturb public bushland unless the consent authority is satisfied:

(a) the disturbance of the bushland is essential for a purpose in the public interest,

(b) there is no reasonable alternative to the disturbance,

(c) the development minimises the amount of bushland to be disturbed,

(d) the development includes measures to remediate the disturbed bushland.

21. With the assistance of the Civil Engineering Plans, the SBDAR, the Arborist Impact Assessment and the Weed Management Plan, I accept the agreement of the parties that I can be so satisfied.

22. Clause 6.2 ‘Public Utility Infrastructure’ states that a consent authority must be satisfied that public utility infrastructure that is essential for the proposed development is available, or adequate arrangements have been made to make that infrastructure available when it is required. The site is serviced with the supply of electricity and water. The site will be provided with a private sewer pump station that will discharge to Council’s gravity sewer main. On this basis, and the civil engineering plans which form part of the development application, I accept the agreement of the parties that adequate arrangements have been made to make public utility infrastructure available when it is required by the development. I make the same findings in relation to cl 7.6 ‘Essential Services’ under LEP 2022.

23. Pursuant to cl 7.5 ‘Development in areas subject to aircraft noise’, the subdivision does not propose a use likely to be adversely affected by aircraft noise for the proposed lots. Further, I accept the agreement of the parties that any future development on site can be designed to meet the applicable requirements AS 2021:2015: Acoustics—Aircraft noise intrusion.

24. Central Coast Development Control Plan 2022 (DCP 2022) applies to the site. The statement of environmental impacts filed with the application details the compliance of the proposed development with DCP 2022. In determining the development application, I have considered the provisions of the development control plan as required by s 4.15(1) of the EPA Act.

25. 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)).

26. 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.

Notes

6. The Court notes that:

7. The First Respondent consents to, and provides owners consent for, the construction of the U-Turn facility at Jack Grant Avenue, Halloran.

8. The First Respondent has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant's amendment of Development Application No DA/787/2024 in accordance with the following plans and documents:

| Civil Engineering Plans prepared by Everitt Consulting Engineers Pty Ltd | | Plan No. | Revision | Plan Title | Date | | C2.01 | L | Overall Subdivision Plan | 7 October 2025 | | C8.02 | F | Vehicle Movement Plan – Option 2 Jack Grant Ave U-Turn Location Sheet 1 of 2 | 11 February 2026 | | C8.03 | E | Vehicle Movement Plan – Option 2 Jack Grant Ave U-Turn Location Sheet 2 of 2 | 4 February 2026 | | C8.04 | D | Regrade Plan & MC10 Longsection | 17 November 2025 | | C8.05 | D | MC10 Cross Sections Sheet 1 of 2 | 17 November 2025 | | C8.05 | D | MC10 Cross Sections Sheet 2 or 2 | 17 November 2025 | | Arborist Impact Assessment revision 7 prepared by Anderson Environment and Planning dated 17 November 2025 | | Streamlined Biodiversity Development Assessment Report revision 6 prepared by Anderson Environment and Planning dated 11 February 2026 | | Traffic Impact Assessment revision M prepared by Intersect Traffic dated 8 December 2025 |

Orders

7. The Court orders that:

8. The appeal is upheld

9. Development consent is granted to Development Application No. DA/787/2024, as amended, for a three lot subdivision, public road, intersections, removal of trees and demolition of existing structures at Lot 23 in DP 259530 known as 201 Sparks Road, Halloran and all works associated with the construction of a turning facility east of the intersection of Sparks Road and Jack Grant Avenue, Warnervale, subject to the conditions in Annexure A.

10. The Applicant is to pay the First Respondent’s costs thrown away as a result of the amendment in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as agreed or assessed.

D Dickson

Commissioner of the Court

Annexure A (347 KB, pdf)

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Amendments

18 March 2026

Pursuant to r 36.17 of the UCPR Rules 2005 (the "slip" rule), the orders of the judgment have been amended to add order 3 to the judgment.