Elias v Central Coast Council

Parties: Ebin Elias (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
T Poisel (Applicant)
C Rose (Solicitor) (Respondent)
Solicitors:
Tyrrells Planning Law (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2025/184546

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 refusal by Central Coast Council of Development Application No DA/778/2024 for the demolition of existing structures and construction of a new dual occupancy development with Torrens title subdivision on land known as 21 Pemell Street, Wyoming (Lot 9 DP 549014) (the Site).

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 (NSW) (LEC Act). The conciliation conference, which I presided over, was held on 13 and 14 October 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 report 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 (NSW) (EPA Reg). The plans and documents comprising the amended application were submitted to the Court on 14 October 2025 and are listed under condition 1.1 of the conditions of consent at Annexure A.

6. I note that key changes made to the application which have led to the respondent now being satisfied in respect of the contentions include: an increase in the floor levels above the 1:100 Average Recurrence Interval; relocation of the buildings 2 metres to the south (toward the street frontage and away from the adjacent creek line to increase the flood storage area); and Strata rather than Torrens titling of the development.

Jurisdictional matters

7. 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

8. 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).

9. 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:

10. To provide for the housing needs of the community

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

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

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

14. Clause 4.1B provides minimum lot sizes for dual occupancy development on land zoned R1 General Residential being a minimum of 700m2 for detached dual occupancies. The subject proposal provides for a detached dual occupancy and has a site area of 878.9m2 thereby complying with the relevant requirement.

15. Clause 4.1C provides that a single consent may be granted for development on land to which the clause applies for both the erection of a dual occupancy and subdivision of that development into two lots that are smaller than the minimum lot size of 550m2. The proposed lots are for dual occupancy development each with a site area of 439.4m2 and are therefore permissible in accordance with the provision.

16. The plans for the proposed development indicate compliance with the maximum permissible height limit of 8.5m in accordance with cl 4.3 of CCLEP however the parties agree that there may be a marginal exceedance having regard to the site contours. Accordingly, a condition of consent is proposed to reduce the roof pitch marginally and to require compliance with the maximum height of building control. I am therefore satisfied that the development complies with the maximum height of building control.

17. The proposed development complies with the maximum floor space ratio of 0.5:1, which applies to the site in accordance with cl 4.4 of CCLEP, having a floor space ratio of 0.43:1.

18. The site is located within the flood planning area as defined under CCLEP and the parties agree that cll 5.21 (Flood planning) and 5.22 (Special flood considerations) apply. I am satisfied on the basis of the parties’ agreement, the amended plans, the flood joint expert report (JER), the Engineering Report (Martens Consulting Engineers, September 2025), the email attached to the jurisdictional statement from Dr Daniel Martens, Martens Consulting Engineers dated 13 October 2025 on behalf of the flood experts (which addresses the impact of the required amendments to the plans) and the recommended conditions of consent, that the amended proposal will comply with the requirements of cl 5.21 (Flood planning) and that the requirements of cl 5.22 (Special flood considerations) have been considered.

19. The site is mapped as having Class 4 Acid Sulfate Soils however the proposed development does not involve works more than 2m below the natural ground surface or that will lower the watertable by more than 2m therefore an acid sulfate soils management plan is not required and no further assessment is required in accordance with cl 7.1 of CCLEP.

20. 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 that essential services are available to the land.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. Consideration has also been given as to whether the subject site is contaminated as required by Ch 4 s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) and the parties agree that the site has a long history of residential use therefore contamination is unlikely. A preliminary site investigation is not required in accordance with s 4.6(2) as a change of use is not proposed. Accordingly, the requirements of the RH SEPP are satisfied.

State Environmental Planning Policy (Sustainable Buildings) 2022

19. The proposal is BASIX development in accordance with Sch 7 of the EPA Reg and accordingly the standards set out in Sch 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 (SB SEPP) apply. A BASIX Certificate was submitted with the original application as required by s 27 of the EPA Reg and an updated certificate has been prepared by Building Sustainability Assessments (Cert No 1744604_02 dated 8 October 2025). Further the embodied emissions of the development have been quantified as required by s 2.1(5) of the SB SEPP.

Other Matters

20. 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*.*

21. The development application, in its original form, was notified between 5 and 19 July 2024. One submission was received in respect of the application from the immediate neighbour to the east. The parties have advised that the issue raised in the submission, shadowing of solar panels, has been considered in the assessment and is considered acceptable given the site orientation.

Conclusion

22. 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)).

23. 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 EPA Act.

Orders

24. The orders of the Court are:

25. The appeal is upheld.

26. Development consent is granted to Development Application No DA/778/2024 for the construction of a Dual Occupancy, Strata Title Subdivision and Demolition of Existing Structures on land known as 21 Pemell Street, Wyoming NSW 2250 (Lot 9 DP 549014) subject to the conditions contained in Annexure A.

H Miller

Acting Commissioner of the Court

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Annexure A(357 KB, pdf)