Fincorp Pty Ltd v Central Coast Council

File Number(s): 2024/441600

Publication restriction: Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise from the actual refusal, by Central Coast Council, of the request of Fincorp Pty Ltd to modify development consent, DA/1849/2005 at 2-6 Fairport Avenue and 44-48 Ocean Parade, The Entrance.

2. The original consent was granted on 27 June 2006 for demolition of three existing dwelling houses and two existing residential flat buildings, and the construction of a six-storey residential flat building containing 45 units with three levels of basement car parking. The site is legally known as Lots 16-17 DP 18810, Lot A at DP 364571 and Lot 0 SP 18493.

3. This modification application, DA/1849/2005/B requests changes to the approved architectural plans including a revised dwelling mix and quantity, the addition of rooftop communal facilities and the refinement of the external design of the building. The detailed changes are as set out in the Statement of Environmental Effects (SEE) by Planning Lab dated 10 October 2020.

4. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), and the application is made pursuant to s 4.55(2) of the EPA Act.

5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 29 August 2025.

6. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and modifying the consent in accordance with the modification application, exercising the function under s 4.55 of the EPA Act.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. Accordingly, there are jurisdictional prerequisites that must be satisfied before the function under s 4.55 of the EPA Act can be exercised, which the parties identified and explained. From this I note the following points.

8. Pursuant to s 4.55(2) of the EPA Act, I must be satisfied that the development to which the consent, as modified, relates is substantially the same as the development for which consent was originally granted. In this regard I note:

9. The development retains the approved use in its entirety, as well as the general building form and envelope. There are slight variations to the proposed building height, but these do not result in any additional amenity impacts.

10. Although the design of the building will be modified, the general form and articulation of the building envelope remains substantially the same.

11. From this I am satisfied that the development, as modified, will be substantially the same as the development for which consent was originally granted.

12. The development consent is not subject to any condition imposed as a requirement of concurrence to the consent or in accordance with any general terms of approval, and therefore no consultation is required under s 4.55(2)(b) of the EPA Act.

13. The modification application was notified from 13 November and 4 December 2020, and again to one adjoining property owner from 25 May to 15 June 2021. 25 submissions were received, and the parties submit, and I accept that issues raised in these submissions have been adequately considered in the assessment of this application.

14. From the information contained in the SEE, I accept that all matters referred to in the EPA Act s 4.15(1), as are of relevance to the development the subject of this application, have been considered, as required by EPA Act s 4.55 (3) and that all jurisdictional prerequisites have been met.

15. The application has been made in accordance with cl 115 of the Environmental Planning and Assessment Regulation 2000.

16. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

17. The Court notes:

18. Central Coast Council as the relevant consent authority pursuant to cl 121B(1) of the Environmental Planning and Assessment Regulation 2000 agrees to the Applicant amending modification application DA/1849/2005/B to rely on the ‘SEPP 65 Design Verification Statement’ Revision B dated August 2025 prepared by Candalepas Associates.

19. The Court orders:

20. Modification application DA/1849/2005/B is granted.

21. Development consent DA/1849/2005 granted on 19 June 2006 is modified as set out in Annexure A to this agreement.

22. The terms of the consolidated development consent DA/1849/2005, as modified, are set out in Annexure B to this agreement.

E Washington

Acting Commissioner of the Court

Annexure A (219 KB, pdf)

Annexure B (280 KB, pdf)

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