Fortis Properties Australia Pty Ltd v Central Coast Council

Legislation Cited: Biodiversity Conservation Act 2016 (NSW), Pt 7, ss 6.3A, 6.4, 6.12, 6.15, 7.2, 7.3, 7.16
Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.46, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Rural Fires Act 1997 (NSW), s 100B
Water Management Act 2000 (NSW)
Biodiversity Conservation Regulation 2017 (NSW), s 6.7
Central Coast Local Environmental Plan 2022, cl 1.8A
Environmental Planning and Assessment Regulation 2021 (NSW), Sch 6, ss 3, 37
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4, Sch 2, s 4.9
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, s 2.75
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48
Wyong Local Environmental Plan 2013, cll 2.3, 2.6, 2.7, 4.1, 4.3, 5.10, 5.21, 6.1, 6.2, 7.1, 7.4

Cases Cited: McMilllan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183
MKY Enterprises (Aust) Pty Ltd v Central Coast Council [2025] NSWLEC 1123

Texts Cited: Wyong Development Control Plan 2013

Category: Principal judgment

Parties: Fortis Properties Australia Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
P Tomasetti (Applicant)
C Koikas (Applicant)
C Rose, solicitor (Respondent)
Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2024/468253

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by Fortis Properties Australia Pty Ltd (the Applicant) against the actual refusal of their development application DA/1242/2022. The development application, as amended, seeks consent for the creation of 69 residential lots; and one environmental lot. The subdivision development is proposed to be undertaken in the following four subdivision stages:

2. Stage 1:

3. 20 Torrens Title residential lots

4. Construction of roads including intersection and road widening on Jensen Road as well as

5. a 2.5m wide pathway

6. Connection to services

7. Construction of a temporary stormwater basin

8. Construction of temporary access roads and turning heads

9. Street tree landscaping.

10. Stage 2:

11. 25 Torrens Title residential lots

12. Construction of roads

13. Connection to services

14. Construction of a temporary stormwater basin

15. Construction of temporary access roads and turning heads

16. Street tree landscaping.

17. Stage 3:

18. 17 Torrens Title residential lots

19. Connection to services

20. Remove temporary access roads and turning heads

21. Street tree landscaping.

22. Stage 4:

23. 7 Torrens Title residential lots

24. Connection to services

25. 1 environmental lot

26. Removal of temporary stormwater basins

27. Street tree landscaping

28. The development application also seeks consent for demolition, bulk earthworks, benching and retaining, connection to services, landscaping, temporary stormwater water basins and vegetation removal. The development is proposed at 90- 100 Jensen Road Wadalba (Lot 1 in DP119542 and Lot 12 in DP 12304).

29. 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 20 June 2025. Following the conciliation conference, the Applicant made amendments to their development application responsive to the Respondent's contentions, however the conciliation was ultimately terminated and the matter listed for hearing.

30. Notwithstanding the termination of the conciliation conference, the parties continued to negotiate in relation to the form of the development and appropriate conditions of consent. These negotiations were productive. The Applicant further amended the development application by Notice of Motion on 2 October 2025, seeking to address the Respondent's concerns. The parties continued discussions on the amended plans and reached an agreement based on the amended development application. The parties' agreement is for the grant of consent to the application, as amended, subject to the conditions in Annexure A. The parties sought a further conciliation conference which was arranged for 3 December 2025. I presided over the further conciliation conference.

31. The decision agreed upon is for the grant of development consent to the development application, as amended, subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. 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 McMilllan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 (McMillan) at [51].

32. 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:

33. As the development application was lodged after 1 March 2022, Sch 6, s 3 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation 2021) applies. The development application was lodged by the Applicant with the consent of the owners of the land.

34. The development application is Integrated development pursuant to s 4.46 of the EPA Act for two matters. Firstly, as the development requires a controlled activity approval from the National Resources Access Regulator (NRR) under the Water Management Act 2000 (NSW) as the proposed development is within 40m of a first order watercourse. General Terms of Approval were issued by Department of Planning and Environment -Water dated 7 March 2023. Secondly, development is proposed on Bushfire Prone Land and requires the issue of a Bush Fire Safety Authority (BFSA) under Section 100B of the Rural Fires Act 1997 (NSW) for a Special Fire Protection Purpose. General Terms of Approval were issued by the Rural Fire Service on 04 December 2025. The requirements of both referral bodies are incorporated in the conditions at Annexure A.

35. The development application was advertised and notified from 6 May to 3 June 2022, in accordance with the Wyong Development Control Plan 2013 (DCP2013) - Chapter 1.2 – Notification of Development Proposal. No submissions were received as a result of notification. The amended development application was advertised and notified between 17 October and 14 November 2025. No submissions were received.

36. Chapter 4 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies to the land. Section 4.6 of SEPP RH requires a consent authority to consider the contamination of land when determining a development application. A preliminary site investigation (PSI) has been prepared for the site which concludes that no contamination or related health risks exist on the site, and it is suitable for the proposed residential use of the site. On this basis I accept the agreement of the parties, and I am satisfied that the site will be suitable for the purpose of the development application.

37. Chapter 4 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the site as the Central Coast Local Government Authority is listed in Sch 2 of SEPP BC. Before granting consent to the development application the consent authority must assess whether the development application is likely to have any impact on koalas or koala habitat: ss 4.9(2) and 4.9(3) of SEPP BC. The development application is accompanied by a Biodiversity Development Assessment Report (BDAR) which includes findings from detailed Koala surveys. No sitings of Koalas, or evidence of their usage of the site were detected on the site or in the study area. I am satisfied that the site is not core koala habitat. Further, I am satisfied that s 4.9 of SEPP BC is satisfied.

38. Part 7 of the Biodiversity Conservation Act 2016 (NSW) (BC Act) requires biodiversity assessment where a development application is likely to significantly affect threatened species. Pursuant to s 7.2 of the BC Act, a development application is likely to affect threatened species if:

(a) It is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test at s 7.3 of the BC Act, or (b) The development exceeds the Biodiversity Offsets Scheme (BOS) threshold if the BOS applies to the impacts of the development on biodiversity values, or (c) It is carried out in a declared area of outstanding biodiversity value.

7. The BDAR confirms that the thresholds at s 7.2 are triggered as due to the quantum of native vegetation cleared exceeds the BOS threshold. In their joint report the ecology experts agree, and I accept that the BDAR which accompanies the amended development application has been prepared in accordance with s 6.12 of the BC Act, and is properly certified: s 6.15 of the BC Act. Compliance with the BDAR is required by the conditions of consent in Annexure A.
8. Further, I am satisfied that the proposed development implements appropriate avoidance and minimisation measures. The Court is assisted by expert ecology evidence. The experts have reached agreement that the proposed development has appropriately applied the principle of avoiding and minimising the direct and indirect impacts on the site’s biodiversity values. Having reviewed their agreed evidence and the BDAR, I accept their agreement. I am satisfied that the development has achieved a satisfactory degree of avoidance and minimisation of impacts as required by ss 6.3A and 6.4 of the BC Act.
9. Pursuant to s 7.16(2) of the BC Act a consent authority 'must refuse' a development application if it is of the opinion that the proposed development is likely to have a serious and irreversible impact (SII) on biodiversity values. The assessment of SII is based on the impacts that remain after measures taken to avoid or minimise the impact of the development. Section 6.7(2) of the Biodiversity Conservation Regulation 2017 (NSW) provides that a SII arises because an impact is likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct. The BDAR identifies two species for assessment of SII. Those species are the Lathamus disclour (Swift Parrot) and the Petaurus norfolcemsis (Squirrel Glider). The BDAR concludes that the development will not have a SII on these species. The ecology experts agree with this conclusion. I accept their agreement.
10. The parties agree, and I accept, that on the basis of the BDAR and the ecology experts’ evidence that the proposed development is unlikely to have a serious and irreversible impact on biodiversity values: s 7.16(2) of the BC Act.
11. The development application was referred to Ausgrid under s 2.48 of SEPP (Transport and Infrastructure) 2021, due to the penetration of the ground within 2m of an underground electricity power line or an electricity distribution pole or within 10m of any part of an electricity tower. On 28 April 2022 Ausgrid confirmed it had no objections to the development and the conditions which have been specified by Ausgrid for the proposed development are included in Annexure A.
12. Although the Central Coast Local Environmental Plan 2022 (LEP 2022) has commenced, cl 1.8A of LEP 2022 provides that the provisions of LEP 2022 do not apply to the development application because it was lodged on 19 April 2022, before LEP 2022 took effect. The site remains subject to the Wyong Local Environmental Plan 2013 (LEP 2013), under which it is partly zoned R2 Low Density Residential and partly zoned C2 Environmental Conservation.
13. Clause 2.3 of LEP 2013 requires that, prior to determining the development application, the consent authority to give consideration to the zone objectives. The objectives of the R2 Low Density Residential zone are:

• To provide for the housing needs of the community within a low 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 and character of the surrounding area.

• To provide a residential character commensurate with a low density residential environment.

14. The objectives of the C2 Environmental Conservation zone are:

• To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.

• To prevent development that could destroy, damage or otherwise have an adverse effect on those values.

• To protect endangered ecological communities, coastal wetlands and littoral rainforests.

• To enable development of public works and environmental facilities if such development would not have a detrimental impact on ecological, scientific, cultural or aesthetic values.

15. In determining the development application, I have given consideration to the objectives of both the R2 Low Density Residential and C2 Environmental Conservation zones.
16. Pursuant to the zoning table in each zone I accept the submission of the parties that the works proposed in the amended development application are permitted with consent.
17. Pursuant to cl 2.6 of LEP 2013 subdivision is permitted with consent in the zone, subject to compliance with the minimum size shown on the Lot Size Map.
18. Pursuant to cl 2.7 of LEP 2013, demolition is permitted with consent.
19. Pursuant to cl 4.1(3) of LEP 2013 the size of any lot resulting from subdivision of the land zoned R2 Low Density Residential must have a minimum lot size of 450m2. This standard is met by the amended development application. The portion of the site zoned C2 Environmental conservation is contained in a single lot with an area that is below the minimum lot standard of 40 ha pursuant to cl 4.1(3) of LEP 2013. However, this lot will be subdivided pursuant to s 2.75(e) of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 as an exempt development: ‘creating a public reserve’. Accordingly, it does not require development consent pursuant to cl 4.3 of LEP 2013. This finding is consistent with the reasoning of MKY Enterprises (Aust*) Pty Ltd v Central Coast Council* [2025] NSWLEC 1123 at [90]-[93].
20. The site is located adjacent to the heritage listed dwelling at 70 Jensen Road. The development application is accompanied by a heritage impact assessment which concludes that the proposed development will not adversely affect the heritage significance of the dwelling. To the extent that cl 5.10 of LEP 2013 applies to the development, I am satisfied that any impact arising from the development on heritage significance does not warrant the refusal of the development application.
21. The Flood Planning Map identifies that part of the land is within the flood planning area, therefore cl 5.21 of applies. The development application is accompanied by a Flood Study and Risk Assessment. That report concludes that the proposed development:

(a) is compatible with the flood function and behaviour on the Land (cl 5.21(2(a)); (b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other properties (cl 5.21(2(b)); (c) will not adversely affect the safe occupation and efficient evacuation of people in a flood (cl 5.21(2(c)); (d) incorporates appropriate measures to manage risk to life in a flood (cl 5.21(2(d)); and (e) will not adversely affect the environment in the ways identified in (cl 5.21(2(e)) of LEP 2013.

22. On the preceding basis I am satisfied that the proposed development meets the requirements of cl 5.21 of LEP 2013.

23. The proposed subdivision is located within the Wadalba South Urban Release Area and is subject to the requirements of cl 6.1 of LEP 2013. The Department of Planning and the Environment issued a Satisfactory Arrangements Certificate on 4 March 2024 which satisfies the requirement of cl 6.1 of LEP 2013.

24. Pursuant to cl 6.2 of LEP 2013 development consent must not be granted for development on land in an urban release area unless the consent authority is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required. In their joint report the infrastructure experts have agreed that adequate arrangements have been made to make sewer and stormwater infrastructure available when required through planned regional infrastructure or that adequate temporary arrangements are proposed. Further, electricity, telecommunications, water and road access can be readily extended from existing infrastructure in Jensen Road. On the basis of the agreed expert evidence, I accept that cl 6.2 is satisfied.

25. Clause 7.9 “Essential Services” is in similar terms to cl 6.2 of LEP 2013. On the same reasoning as at [6(25)] I accept that the terms of cl 6.2 are satisfied.

26. Pursuant to cl 7.1 and the Acid Sulphate Soils Map, the site is identified as having the potential to contain Class 5 Acid Sulfate Soils. The development application is accompanied by a Geotechnical Investigation which confirms that testing of soil samples were not classified as acid sulfate soils and concludes that no Acid Sulfate Soils Management Plan is required. I accept that cl 7.1 of LEP 2013 is satisfied.

27. DCP 2013 applies to the site. The statement of environmental impacts filed with the application details the compliance of the proposed development with DCP 2013. In determining the development application, I have considered the provisions of the development control plan, s 4.15(1) of the EPA Act.

28. 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)).

29. 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

9. The Court notes that Central Coast Council, as the relevant consent authority, has agreed in accordance with s 37(1) of the EPA Regulation 2021 for the Applicant to amend the development application DA/1242/2022 and rely upon the amended plans and documents in accordance with the documents listed below:

| TAB | DOCUMENT | DATE | | 1. | Updated Statement of Environmental Effects (Issue G) prepared by ADW Johnson | 27 November 2025 | | 2. | Masterplan set (Rev G) prepared by ADW Johnson • DWG 190672-ESK-014-F-PARK - Proposed Masterplan Proximity To Park • DWG 190672-ESK-014-F-BUS - Proposed Masterplan Proximity To Bus Stop • DWG 190672-ESK-014-F-SEWER - Proposed Masterplan Regional Sewer And Water | 30 October 2025 | | 3. | Plans of the Proposed Subdivision (Rev I) prepared by ADW Johnson • 190672-DA-001 Cover Sheet & Index Of Drawings • 190672-DA-002 Overall Site Plan • 190672-DA-003 Zoning Plan • 190672-DA-004 Overall Masterplan • 190672-DA-005 Overall Staging Plan • 190672-DA-006 Staging Plan - Stage 1 • 190672-DA-007 Staging Plan - Stage 2 • 190672-DA-008 Staging Plan - Stage 3 • 190672-DA-009 Detail Plan Sheet 1 • 190672-DA-010 Detail Plan Sheet 2 • 190672-DA-011 Traffic Management Plan • 190672-DA-012 Road Hierarchy Plan | 27 October 2025 | | 4. | Shadow Diagrams (Ver A) prepared by ADW Johnson | 12 November 2025 | | 5. | Concept Engineering Plans (Rev E) prepared by ADW Johnson • 190672-CENG-001 Cover Sheet, Index Of Drawings & Locality Sketch • 190672-CENG-002 Overall Site Plan • 190672-CENG-003 Staging Plan • 190672-CENG-004 Demolition Plan • 190672-CENG-101 Detail Plan - Sheet 1 • 190672-CENG-102 Detail Plan - Sheet 2 • 190672-CENG-201 Typical Road Profiles & Details • 190672-CENG-202 Basin Sections • 190672-CENG-211 Road Longitudinal Sections - Road No.1 • 190672-CENG-212 Road Longitudinal Sections - Road No.2 - Sheet 1 • 190672-CENG-213 Road Longitudinal Sections - Road No.2 - Sheet 2 • 190672-CENG-214 Road Longitudinal Sections - Road No.3 • 190672-CENG-215 Road Longitudinal Sections - Road No.4 • 190672-CENG-216 Road Longitudinal Sections - Road No.5 • 190672-CENG-217 Road Longitudinal Sections - Jensen Road • 190672-CENG-501 Site Regrade Plan • 190672-CENG-511 Site Regrade Sections - Sheet 1 • 190672-CENG-512 Site Regrade Sections - Sheet 2 • 190672-CENG-513 Site Regrade Sections - Sheet 3 • 190672-CENG-514 Site Regrade Sections - Sheet 4 • 190672-CENG-515 Site Regrade Sections - Sheet 5 • 190672-CENG-516 Site Regrade Sections - Sheet 6 • 190672-CENG-521 Retaining Wall Plan - Sheet 1 • 190672-CENG-522 Retaining Wall Plan - Sheet 2 • 190672-CENG-531 Retaining Wall Longitudinal Sections - Sheet 1 • 190672-CENG-532 Retaining Wall Longitudinal Sections - Sheet 2 • 190672-CENG-533 Retaining Wall Longitudinal Sections - Sheet 3 • 190672-CENG-534 Retaining Wall Longitudinal Sections - Sheet 4 • 190672-CENG-535 Retaining Wall Longitudinal Sections - Sheet 5 • 190672-CENG-536 Retaining Wall Longitudinal Sections - Sheet 6 • 190672-CENG-601 Erosion & Sediment Control Plan - Sheet 1 • 190672-CENG-602 Erosion & Sediment Control Plan - Sheet 2 • 190672-CENG-611 Erosion & Sediment Control Details - Sheet 1 • 190672-CENG-612 Erosion & Sediment Control Details - Sheet 2 • 190672-CENG-701 Vehicle Swept Path Plan - HRV Left Hand Turn - Sheet 1 • 190672-CENG-702 Vehicle Swept Path Plan - HRV Left Hand Turn - Sheet 2 • 190672-CENG-703 Vehicle Swept Path Plan - HRV Right Hand Turn - Sheet 1 • 190672-CENG-704 Vehicle Swept Path Plan - HRV Right Hand Turn - Sheet 2 | 4 November 2025 | | 6. | Concept Engineering Plans (Rev A) prepared by ADW Johnson i) 190672-ESK-031 – Detail Plan ii) 190672-ESK-031 - Road No.2 & No.4 Long Section & TYP. X-Sections iii) 190672-ESK-031 - Road No.5 Long Section & TYP. X-Sections | 30 October 2025 | | 7. | Subdivision Cost Estimate Report prepared by ADW Johnson | 17 November 2025 | | 8. | Chapter 6.28 Compliance Table prepared by ADW Johnson | 7 November 2025 | | 9. | DCP Part 4 Subdivision Table prepared by ADW Johnson | 7 November 2025 | | 10. | Retaining Wall Examples (Ver A) prepared by ADW Johnson • DWG 190672-ESK-025 Retaining Wall Subdivision Locations Sheet 1 Of 2 • DWG 190672-ESK-025 Retaining Wall Subdivision Locations Sheet 2 Of 2 | 19 August 2025 | | 11. | Park Reserve Locations (Ver B) prepared by ADW Johnson • DWG 190672-ESK-024 - Park/Reserve Location Plan | 27 August 2025 | | 12. | Road Safety Audit Report (Rev 4) prepared by Barker Ryan Stewart | 28 October 2025 | | 13. | Water Cycle Management Plan (Rev D) prepared by ADW Johnson | 4 November 2025 | | 14. | Servicing Report (Rev E) prepared by ADW Johnson | 31 October 2025 | | 15. | Construction Environmental Management Plan (Rev E) prepared by ADW Johnson | 7 November 2025 | | 16. | Operation and Maintenance Plan (Rev D) prepared by ADW Johnson | 20 November 2025 | | 17. | Biodiversity Development Assessment Report prepared by Anderson Environment & Planning (AEP) | 13 November 2025 | | 18. | Biodiversity Management Plan (Rev 03) prepared by Anderson Environment & Planning (AEP) | 13 November 2025 | | 19. | Arboriculture Impact Assessment Report (Rev 03) prepared by Anderson Environment & Planning (AEP) | 13 November 2025 | | 20. | Amended Bushfire Assessment Report (Ver 5) prepared by Bushfire Planning Australia | 7 November 2025 | | 21. | Waste Management Plan prepared by ADW Johnson | 7 November 2025 | | 22. | Flood Study and Risk Assessment Report (Rev C) prepared by GRC Hydro | 8 November 2025 | | 23. | Flood Function Mapping (Rev A) prepared by GRC Hydro | 20 November 2025 | | 24. | Updated Flood Memorandum (Rev A) prepared by GRC Hydro | 20 November 2025 | | 25. | Traffic Impact Advice Letter prepared by CJP Consulting Engineers | 23 September 2025 | | 26. | Amended Landscape Plans (Rev A) prepared by ADW Johnson • LDA 001: Landscape Cover Sheet • LDA 100: Landscape General Arrangement Plan • LDA 200: Landscape Part Site Plan 1 • LDA 201: Landscape Part Site Plan 2 • LDA 300: Landscape Details • LDA 400: Landscape Schedules • LDA 500: Landscape Specification 1 • LDA 501: Landscape Specification 2 | 27 November 2025 |

Orders

10. The Court orders that:

11. The appeal is upheld

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

13. Development Application No DA/1242/2022 is determined by the grant of consent subject to the conditions in Annexure A for Torrens Title residential subdivision of land at 90-100 Jensen Road, Wadalba NSW 2259 (Lot 1 in DP119542 and Lot 12 in DP 12304) into 69 residential lots, 1 residue environmental lot and associated infrastructure.

D Dickson

Commissioner of the Court

Annexure A (1.29 MB, pdf)

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