Mak 3 NSW Pty Limited v Central Coast Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category: Principal judgment

Parties: Mak 3 NSW Pty Limited (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
M Staunton (Applicant)
C Rose (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2025/193846

Publication restriction: Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of the existing dwelling at 1 Ficus Avenue, Avoca Beach, and the construction of a two-storey dwelling with a roof terrace. The development application was refused by the respondent on 28 November 2024. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 commenced on 29 October 2025. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was filed on 30 October 2025, following the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation 2021). The amended development application reduces the screening on the western side of the rear ground level veranda, to maintain views across the site for the adjoining property, and also increases the finished floor levels and improves the landscaping within the eastern setback.

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 an agreed Jurisdictional Statement that sets out the prerequisites to the exercise of the power to grant development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the documents that are referred to in Condition 1, and the assessment report prepared by the Council and dated 28 November 2024. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. 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 could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

6. The development works are for the purposes of a dwelling house, which is a permissible use in the R2 Low Density Residential zone in which the site is located, pursuant to the Central Coast Local Environmental Plan 2022 (CCLEP).

7. The proposed development complies with the height development standard that applies pursuant to cl 4.3 of the CCLEP, and there is no floor space ratio development standard that applies to the site.

8. Clauses 5.21 and 5.22 of the CCLEP, concerning flood planning, apply to the site, and development consent must not be granted unless the Court, exercising the functions of the consent authority, is satisfied of the matters in cl 5.21(2) and cl 5.22(3). The development application was accompanied by a report by Horton Coastal Engineering dated 15 November 2023, and a joint report was also prepared by the coastal engineers and filed 24 October 2025. The joint report was accompanied by a structural report by Northrop dated 22 October 2025. Based on the contents of those documents, I have considered the matters in cl 5.21(3) of the CCLEP and I am satisfied of the matters in cll 5.21(2) and 5.22(3).

9. The site is mapped as having Class 5 Acid Sulfate Soils but the works will not lower the water table. As such, cl 6.1 of the CCLEP does not require the preparation of an acid sulfate soils management plan in relation to the proposed development.

10. As the site is currently occupied by an existing dwelling house, I am satisfied that all of the services required by cl 7.6 of the CCLEP are available.

11. Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 30 October 2025. Based on the BASIX certificate, I am satisfied of the requirement in s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022.

12. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH). As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

13. The site is within the coastal environment area and the coastal use area, pursuant to the SEPP RH. Based on the report by Horton Coastal Engineering dated 15 November 2023 and the joint report and attachments filed on 24 October 2025, I have considered the matters in ss 2.10(1) and 2.11(1)(a) of the SEPP RH, and, consistent with ss 2.10(2)(a) and 2.11(1)(b), I am satisfied that the development will not have any adverse impacts on the matters set out in ss 2.10(1) and 2.11(1)(a) of the SEPP RH.

14. The development application was notified from 9 to 23 February 2024, and 12 written submissions were received in response. I have considered the issues raised in those written submissions.

15. Having reached the state of satisfaction that the decision is one that the Court could have made 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)).

16. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or 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.

17. The Court notes:

18. The Central Coast Council, as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA 2304/2023 in accordance with the documents listed below:

| Amended Architectural Plans | | Plan name | Drawing ref | Revision | Date | Prepared by | | Site Analysis Plan Demolition Plan Site Plan and Setbacks Subfloor Plan First Floor Plan Ground Floor Plan Roof Plan East Elevation South Elevation North Elevation West Elevation Section AA Section BB Section CC Schedule of Materials and Finishes Section DD+EE | DA 00 DA 01 DA 02 DA 04 DA 05 DA 06 DA 07 DA 08 DA 09 DA 10 DA 11 DA 12 DA 13 DA 14 DA 17 DA 30 | F | 29/10/2025 | Lorna Sinac | | Amended Landscape Plans | | | Plan name | Drawing ref | Revision | Date | Prepared by | | | | Title Page First Floor Landscape Plan Second Floor Landscape Plan Roof Landscape Plan Landscape Calculation Plan Northern Elevation Eastern Elevation 1 Eastern Elevation 2 Southern Elevation Planting Details | L-00 L-01 L-01 L-03 L-04 L-05 L-06 L-07 L-08 L-09 | D | 29/10/2025 | Site Designs and Studios | | | | Amended Stormwater Engineering plans | | Plan name | Drawing ref | Revision | Date | Prepared by | | Stormwater Services Cover Sheet Stormwater Services Erosion / Sediment Control Plan Stormwater Services Level 1 & Level 2 Plan Stormwater Services Level 3/ Roof Plan | SW01 SW02 SW03 SW04 | C C E E | 24/10/2025 | SDCAR Consulting | | Amended Reports | | Report name | Ref | Revision | Date | Prepared by | | Aboriginal Heritage Due Diligence Assessment | | | 8 October 2025 | Talking Walls | | Structural Report | 232209 | | 29 October 2025 | Northhorp Consulting Engineers | | Amended BASIX certificate | 1413900S_03 | | 30 October 2025 | NSW Government |

Orders

9. The Court orders that:

10. The appeal is upheld.

11. Development Consent is granted to DA 2304/2023 for the demolition of an existing dwelling and construction of a new dwelling of two levels with associated attached double garage verandah and roof terrace, fencing treatment on front and side boundaries at 1 Ficus Avenue, Avoca Beach subject to the conditions set out in Annexure A.

J Gray

Commissioner of the Court

Annexure A (387 KB, pdf)

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