LEND BEST Pty Ltd v Central Coast Council

Representation: Counsel:
G McKee (Solicitor) (Applicant)
M Ball (Solicitor) (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Martin Ball Legal (Respondent)

File Number(s): 2024/425381

Publication restriction: No

Judgment

1. COMMISSIONER: Development consent was granted to DA2153/2022 (DA) by Central Coast Council (Council) on 6 July 2023. The development consent approved demolition of existing buildings and construction of two towers built form comprising 47 communal living rooms, shop and parking at 18 Watt Street, Gosford (site). The applicant subsequently lodged a modification application (MA) seeking to modify certain particulars of the DA. Council’s reference number for the MA is DA2153/2022/A.

2. These proceedings are an appeal by the applicant pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), in relation to dissatisfaction with Council’s determination of the MA. In this instance, Council has not determined the MA, and the deemed refusal period has lapsed.

Conciliation and agreement reached between the parties

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conference was held on 8 July 2025. I was appointed to preside. The parties advised the Court that agreement had been reached, including in regard to the proposed amendments to the MA. This agreement provides for the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court approving DA2153/2022/A, as amended, in accordance with agreed conditions.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed statement of jurisdictional prerequisites (SJP) provided to the Court on 8 July 2025, an update of which was received on 16 July 2025. I return to this after first outlining the proposed modification.

The proposed modification

5. The parties advise that the MA, as filed with the Court, would modify the current DA consent as follows (SJP par 9):

“a) to provide for one unified single tower built form, comprising 55 co-living rooms, ground level kiosk and semi-basement parking;

b) amendment to condition 1.1 to update to reflect amended plans and reports;

c) amendment to condition 2.6 to be deleted;

d) amend condition 2.9 to update s7.12 contribution;

e) amend condition 5.12 to refer to amended Waste Management Plan;

f) amendment to condition 6.10 to refer to updated acoustic report and recommendations;

g) amendment to condition 9.1 to reflect amended Plan of Management;

h) amendment to condition 9.9 to reflect amended Waste Management Plan.”

6. Subsequent to dialogue between the parties, a further group of amendments is now also proposed (as an amendment to the modification application pursuant to s 113(1) of the Environmental Planning and Assessment Regulation 2021 (NSW)). These are (SJP par 10) and reliant on advice from town planning specialists:

“a) Parking layout amended to provide 1 additional car parking for retail premises, with motorcycle and bicyle parking spaces relocated;

b) Revised front setback to Watt Street;

c) Amendment to design of built form and internal unit layout;

d) Windows and doors updated and privacy treatments provided;”

Jurisdiction

7. The parties are in agreement that it is within the Court’s power to uphold the appeal and approved the modification to DA2153/2022 as now agreed. The matters requiring attention before such power is enabled are addressed below. The focus is ss 4.55(2) and (3) of the EPA Act:

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a) it is satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with—

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

8. Having regard to s 4.55(2)(a) of the EPA Act, the parties advise of their agreed position that the development to which the consent as modified would relate is substantially the same development as the development for which the consent was originally granted. The parties’ reasoning behind this decision as put in the SJP (par 13), and mindful of the amendments to the MA as indicated at [5]-[6], is that the proposal will:

• Continue to provide for a co-living development with a ground floor retail premises, with internal and external communal living areas;

• The amendments to do not result in adverse impacts;

• Both the Consent and the modification application are well under the maximum FSR;

• The modification applicant does not increase the height of the development;

• The proposed modifications result in the overall retention of the primary setbacks to the front and side boundaries.

9. However, the decision here requires the Court to, itself, make a positive finding of satisfaction on that front. The parties have assisted here with their own reasoning (SJP par 13). I have also reviewed the advice of Clifford Ireland of 13 Wentworth Chambers dated 18 March 2025 (Ireland advice), in the applicant’s bundle of documents forwarded to the Court dated 26 March 2025 (s34 bundle), which drew the same conclusion.

10. The Ireland advice drew attention to case law on the question, including the recent findings of Preston CJ in Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31 (Realize).

11. In Realize (at [7] and [29]), Preston CJ outlined three tasks which are to be undertaken in deciding whether or not the development as modified is substantially the same development as the development for which consent was originally granted: (1) finding the primary facts, (2) interpreting the precondition in s 4.55(2)(a), and (3) categorising the facts found in the statutory description of the precondition in s 4.55(2)(a). There is interpretive assistance in relation to this third task at [30]-[31] of Realize:

“This third task of categorising the facts in the statutory description is an evaluative one. It involves assigning relative significance or weight to the different facts and a balancing of the facts, as weighted. This categorisation can be an instinctive synthesis and need not be articulated expressly.

A decision-maker could, for example, give greater significance or weight to quantitative differences than to qualitative differences between the two developments, or the reverse, or give greater significance or weight to some quantitative differences than other quantitative difference or to some qualitative differences than other qualitative differences. This evaluation of the facts in undertaking the categorisation of the facts in the statutory description is an essential task in deciding whether or not the decision maker is satisfied of the precondition in s 4.55(2)(a).”

12. Of a number of points in Realize, I draw attention to two. First, is that the comparison to be undertaken is to be a holistic one (ie of the two developments being compared), and not that either the quantitative features or the qualitative features of the two developments are substantially the same (at [26], Realize). Although this may be a point of inquiry, it does not displace the actual s 4.55(2)(a) test (at [27], Realize). Second, is that the statutory test is not whether there is a change to “material and essential features” or a “material and essential physical element” of the development was being changed. In this case, this might be thought to include the fact that the development would change from two towers to a single tower. Such an inquiry might assist in categorising the facts in the statutory description but is not demanded (at [41], Realize):

“…This interpretation of the statutory test, now in s 4.55(2)(a), can support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry.”

13. In respect to the first task under Realize, I have drawn inferences of fact from the material in the SJP and further detailed in a schedule of amendments included in the applicant’s s34 bundle. While not limited to the comparative and evaluative matters outlined by the parties (as explained above at [5],[6] and [8]), for explanatory purposes in this judgement, the parties’ description adequately describes the factual position in regard to the components or features that would be modified.

14. I can consider the second and third tasks together. The interpretation of the precondition at s 4.55(2)(a), and the terms “satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which consent was originally granted”, is well assisted by the caselaw, with Realize providing a sound platform of itself and through its relating to other authorities. Clearly the modified development would not be “the same” development. My interpretation of the “substantially the same development” phrasing is best undertaken in context of the particulars here, and the third task.

15. When considered holistically, the development as modified would comprise a co-living development with a ground floor retail premises, with internal and external communal living areas. There would be changes to the built form (now involving a single building rather than two, and some changes to setbacks to boundaries) and some increases in gross floor area. The most significant of these changes is the amalgamation of the form into a single tower building. This is a noteworthy change but, given the particulars of this case, in my opinion does not change the essence of the development. There is a similar height and overall density, and impacts are substantially the same according to the evidence. For me this assigns a lower weight to the fact that the development now comprises one rather than two towers. These factors draw me back to the fact that the development would still comprise a co-living development providing for retail at ground level and a similar arrangement for communal living areas, which has substantive weight. I am satisfied that the development as modified is substantially the same development as the development for which consent was originally granted.

16. The rest of the statutory considerations in 4.55(2) and (3) of the EPA Act either involve procedural tasks or “considerations”.

17. With respect to the procedural tasks, the parties advise that (1) with respect to subss 4.55(2)(b), there is no requirement for relevant consultation, and (2) with respect to subss 4.55(2)(c), the required notification has occurred, and one submission was received, raising objections.

18. Then a series of matters require consideration of the consent authority. The parties advise that: (1) mindful of subss 4.55(2)(d), they have considered the objecting submission, and (2) mindful of subss 4.55(3), they take taken into consideration: (a) such of the matters referred to in section 4.15(1) of the EPA Act as are of relevance to the development the subject of the application (SJP par 17), and (b) with the reasons given by the consent authority for the grant of the consent that is sought to be modified (SJP par 18).

19. There are two reasons why that, while I note these points in relation to the consideration of such matters by in particular Council as the consent authority, there is no requirement for a finding of the Court with respect to them. First, is that mindful of McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 (at [62]-[65]), the question to be attended to in actioning s 34 agreements is whether there is a jurisdictional constraint to the Court’s exercise of power in accordance with the parties’ agreement. Second is that mindful of North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163 (at 480-481), modification applications, under now s 4.55 of the EPA Act, are to be understood to not provide for a statutory bar (or constraint), in the sense that jurisdictional findings of satisfaction might be otherwise be required for example under particular provisions of s 4.15(1) of the EPA Act.

Conclusion

20. In accordance with the above, I am satisfied that the jurisdictional pre-requisites have been met, and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

21. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation

22. The Court notes that:

23. Central Coast Council as the relevant consent authority has agreed, under section 113 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the modification application number 2153/2022/A in accordance with the plans and documents listed below:

| Plan No. | Revision No. | Plan Title | Drawn By | Dated | | A000 | E | Cover Sheet | Texco Design | 07/05/2025 | | A000-A | E | Perspectives | Texco Design | 07/05/2025 | | A001 | E | Section J Commitments | Texco Design | 07/05/2025 | | A002 | E | Site Plan | Texco Design | 07/05/2025 | | A003 | E | Site Analysis | Texco Design | 07/05/2025 | | A004 | E | Streetscape Analysis | Texco Design | 07/05/2025 | | A005 | E | GFA Calculation | Texco Design | 07/05/2025 | | A006 | E | Unit Schedule | Texco Design | 07/05/2025 | | A007 | E | Communal Living & Cos Calculation | Texco Design | 07/05/2025 | | A008 | E | Sun Eye Diagram-21 June | Texco Design | 07/05/2025 | | A009 | E | Shadow Diagram-21 June | Texco Design | 07/05/2025 | | A010 | E | Evacuation Diagram | Texco Design | 07/05/2025 | | A011 | E | Cut & Fill Diagram | Texco Design | 07/05/2025 | | A101 | E | Lower Ground 2 Plan | Texco Design | 07/05/2025 | | A102 | E | Lower Ground 1 Plan | Texco Design | 07/05/2025 | | A103 | E | Ground Floor Plan | Texco Design | 07/05/2025 | | A104 | E | Level 1 Plan | Texco Design | 07/05/2025 | | A105 | E | Level 2 Plan | Texco Design | 07/05/2025 | | A106 | E | Level 3 Plan | Texco Design | 07/05/2025 | | A107 | E | Level 4 Plan | Texco Design | 07/05/2025 | | A108 | E | Level 5 Plan | Texco Design | 07/05/2025 | | A109 | E | Level 6 Plan | Texco Design | 07/05/2025 | | A110 | E | Roof Plan | Texco Design | 07/05/2025 | | A201 | E | North Elevation | Texco Design | 07/05/2025 | | A202 | E | South Elevation | Texco Design | 07/05/2025 | | A203 | E | East & West Elevations | Texco Design | 07/05/2025 | | A301 | E | Section A | Texco Design | 07/05/2025 | | A302 | E | Section B | Texco Design | 07/05/2025 | | A401 | E | Material Schedule | Texco Design | 07/05/2025 | | A402 | E | Doors Schedule | Texco Design | 07/05/2025 | | A403 | E | Windows Schedule | Texco Design | 07/05/2025 | | A404 | E | Typical Kitchen Details 1 | Texco Design | 07/05/2025 | | Page 1 | C | Hardscape Plan | Conzept Landscape Architects | 16/05/2025 | | Page 2 | C | Soil Depth Plans | Conzept Landscape Architects | 16/05/2025 | | Page 3 | C | Landscape Plan LG & GF | Conzept Landscape Architects | 16/05/2025 | | Page 4 | C | Landscape Plan LG & GF | Conzept Landscape Architects | 16/05/2025 | | Page 5 | C | Landscape Plan L6 | Conzept Landscape Architects | 16/05/2025 | | Page 6 | C | Details & Specification | Conzept Landscape Architects | 16/05/2025 | | Page 7 | C | Section | Conzept Landscape Architects | 16/05/2025 |

| Document Title | Version No. | Prepared by | Dated | | Stormwater Management Plan | D | Stronghold Engineers | 14/05/2025 | | Waste Management Plan | D | Gateway Consulting Group Job No 24WMP-1297 | 19/05/2025 | | NCC 2022 Section J DTS Report | - | AENEC | 30/05/2025 | | BCA Report | Rev 5.0 | Fire Code compliance | 02/05/2025 | | Traffic Statement | - | Fernway Engineering | 15/04/2025 | | Plan of Management | - | Minto Planning Services | 15/04/2025 |

2. The agreement of the parties that the Applicant pay the costs of the Respondent consent authority in the sum of $3,000 as fair and reasonable in the circumstances.

Orders

23. The Court orders that:

24. The Applicant is granted leave to file the Amended Development Application as per the notation at paragraph 22.

25. The appeal is upheld.

26. Development Consent No. 2153/2022 is modified in the terms in Annexure ‘A’.

27. Development Consent 2153/2022 as modified by the Court is Annexure ‘B’.

P Walsh

Commissioner of the Court

Annexure A (149 KB, pdf)

Annexure B (245 KB, pdf)

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