Ochudzawa v Central Coast Council

Land and Environment Court (NSW)|2022-07-19

Judgment

COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, relate to an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the respondent's deemed refusal of development application DA/62725/2021 (DA). The DA sought the grant of consent for the demolition of existing structures and the development of a two (2) storey residential flat building (RFB) and a dwelling house, along with at-grade car parking, at 90-92 Booker Bay Road, Booker Bay, legally described as Lots 1 and 2 DP 544425 (site).

Conciliation and agreement between the parties

The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 19 July 2022. I presided over the conciliation conference.
After more time was given, the parties filed an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal, subject to certain amendments to the DA, and granting consent subject to conditions.
In relation to the amendments to the DA, of note here is the advice of the parties that the respondent, as the relevant consent authority, has agreed to this further amendment of the DA by the applicant. I have also been advised that the amendment has been lodged on the NSW Planning Portal. In turn, the DA has been amended in accordance with regulatory requirements, and it is this amended DA which is now before the Court. The applicant has also filed the agreed amended material with the Court.

Jurisdiction

The parties' decision involves the Court exercising the consent authority function, under s 4.16 of the EPA Act, to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties provided the Court with an agreed statement of jurisdictional prerequisites (jurisdictional statement) on 23 August 2022. In regard to jurisdiction and having regard to this jurisdictional statement, I find as follows.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards)

In regard to Ch 2 (concerned with coastal management) I accept the parties advice that the site is not mapped as containing coastal wetlands or littoral rainforests, or as being within a mapped proximity area. The site is mapped as being located within both the coastal use and coastal environment areas. Having regard to the proposal's siting within a coastal environment area, I have considered the matters at s 2.10(1) and, in accordance with the advice of the parties, in the jurisdictional statement in regard to each matter (reference par 30). I am satisfied in regard to the matters listed at s 2.10(2). Having regard to the proposal's siting within a coastal use area, I have considered the matters at s 2.11(1)(a) and, in accordance with the advice of the parties in the jurisdictional statement in regard to each matter (reference par 30), I am satisfied in regard to the matters listed at s 2.11(1)(b). I have also taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development, as required under s 2.11(1)(c). Further, and mindful of s 2.12, I am satisfied that the proposed development is not likely to cause increased risk of coastal hazards on the site for the reasoning cited in par 30 of the jurisdictional statement.
In regard to Ch 4 (concerned with remediation of land) and cl 4.6(1), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. I am advised by the parties that there is no reason to believe that the site may be contaminated. The reasoning is essentially based on the site's long term history of residential use. On this basis, I too am satisfied that the requirements of SEPP Resilience and Hazards are met.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX)

Pursuant to SEPP BASIX and the Environmental Planning and Assessment Regulation 2000, the proposal is a BASIX affected development containing a BASIX affected building. The DA was accompanied by a BASIX certificate and I am advised that the applicant has provided an amended BASIX Certificate in line with plan amendments.

Gosford Local Environmental Plan 2014 (GLEP)

While Central Coast Local Environmental Plan 2022 (CCLEP) commenced on 1 August 2022, as a consequence of the provisions of cl 1.8A of CCLEP, it is GLEP which applies to the proposal.
The development of residential flat buildings and dwelling houses is permitted with consent within the subject R1 General Residential zone. I have had regard to the zone objectives as required under cl 2.3(2).
The following further points are noted:

In regard to minimum lot size for RFB development - cl 4.1B requires a minimum lot size of 750m2. The actual site area is 1238.9m2.
In regard to height of buildings - cl 4.3 would generally require a maximum building height of 8.5m. While the proposal has a maximum height of 8.59m, in this instance the parties advise they are satisfied in regard to the matters listed at cl 5.6(3), which relates to a trigger under the provisions of cl 5.6(2) which can allow exceedance of the maximum building height standard for development that includes an architectural roof feature. I have considered the matters at cl 5.6(3) and agree with the parties. The roof of the proposal does comprise what might reasonably be described as an architectural roof feature, which is decorative and its decorative quality appears to be consciously integrated with the overall design. Further, the architectural roof feature does not comprise a sign or floor space and is not reasonably capable of modification to include floor space. Finally on this point, due to the small scale of the exceedance the architectural roof feature would cause minimal overshadowing.
In regard to flood planning - cl 5.21(2) requires a consent authority to be satisfied in regard to a number of matters. In this instance I am advised that the Council is satisfied in regard to the nominated matters. Recognising the technical nature of the relevant points of satisfaction, I accept the position of Council and I too am satisfied in regard to the listed matters.
In regard to acid sulfate soils - the site is identified as Class 2 in the acid sulfate soils map. The proposal was accompanied by an Acid Sulfate Soils Risk Assessment dated 12 April 2021, prepared by 5QS Consulting Group. The report provides both site-specific and general management requirements for acid sulfate soils. Council believes the report's content satisfies the requirements of the clause. I accept this advice.

Development standard contravention

The map to cl 4.4 of GLEP would indicate a maximum floor space ratio (FSR) of 0.7:1 applies to the site. However, under cl 4.4(2A)(c), if a proposed building is used for the purposes of an RFB and includes onsite carparking that is not located in the basement, such as the case here, a maximum FSR of 0.5:1 applies. The amended application proposes an FSR of 0.509:1, contravening the FSR standard.
The applicant is seeking an exception for the contravention under cl 4.6(2) of the WLEP. The applicant relies on a written request prepared by W Folitarik of Urbanism (written request) for this purpose.
While the parties believe the requirements of cl 4.6 are satisfied and that the proposal can be approved notwithstanding this development standard contravention, I need to make my own findings in regard to the relevant jurisdictional tests.

Whether compliance with the development standard is unreasonable or unnecessary

The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (a requirement of cl 4.6(3)(a) of GLEP), using the first of the "ways" identified in Wehbe v Pittwater Council [2007] 156 LGERA 446; (2007) NSWLEC 827, to show how the development achieves the objectives of the standard, notwithstanding the contravention. The nominated objectives to cl 4.4 are: (a) to establish standards for the maximum development density and intensity of land use, (b) to control building density and bulk in relation to site area in order to achieve the desired future character for different locations, (c) to minimise adverse environmental effects on the use or enjoyment of adjoining properties and the public domain, (d) to maintain an appropriate visual relationship between new development and the existing character of areas or locations that are not undergoing, and are not likely to undergo, a substantial transformation, (e) to provide an appropriate correlation between the size of a site and the extent of any development on that site, (f) to facilitate design excellence by ensuring the extent of floor space in building envelopes leaves generous space for the articulation and modulation of design, (g) to ensure that the floor space ratio of buildings on land in Zone R1 General Residential reflects Council's desired building envelope, (h) to encourage lot amalgamation and new development forms in Zone R1 General Residential with car parking below ground level.
Objective (a) is explanatory of the function of the applicable development standards in providing for the achievement of the underlying objectives. Objective (a) is already achieved with the FSR standards as indicated in GLEP (see Baron Corporation Pty Ltd v Council of the City of Sydney [2019] NSWLEC 61 at [49]).
In regard to Objective (b), I agree with the written request that the proposed density and bulk in relation to the site area achieve the desired future character. This is because of the two storey form of the building, the proposal's accordance with the other development standard objectives (as argued) and general compliance or justifiable non-compliance with all GLEP and Gosford Development Control Plan 2013 (GDCP) controls.
In regard to Objective (c), the written request refers to the common concerns in regard to potential environmental effects in regard to the use or enjoyment of adjoining properties and the public domain, indicating that the proposal responds satisfactorily in regard to them. This approach successfully argues that this objective is also achieved.
In regard to Objective (d), the written request points to the variations between older and newer housing nearby, differences between development on the foreshore and along Booker Bay Road, the single dwelling presentation to the street and more substantial development looking over the water. Maintenance of an appropriate visual relationship is demonstrated in accordance with the requirements of the objective.
In regard to Objective (e), the written request refers to the proposed site setbacks and landscaping, and compliance or justifiable non-compliance with controls to effectively demonstrate achievement of the objective.
In regard to Objective (f), the written request points to examples of articulation and modulation of design built into the proposal as a consequence of the available space. This demonstrates that the "design excellence" provisions of the objective have been facilitated.
In regard to Objective (g), the written request refers to the proposed building's general alignment with other controls (or justifiable non-compliance) to effectively argue that the proposal reflects Council's desired building envelope, and achievement of the zone objective
In regard to Objective (h), the written request notes that the proposal involves lot amalgamation. While the proposal does not involve below ground parking the test is the "encouragement" of this, something already manifest in the form of the FSR standard. The objective relating to this encouragement is already achieved. The written request satisfies me that the proposal plays its function in regard to achieving this objective.

Whether sufficient environmental planning grounds to justify the breach of the standard

The written request also adequately demonstrates that there are sufficient environmental planning grounds to justify the breach of the standard (cl 4.6(3)(b) of GLEP). There are two points raised in the written request which for me prove sufficient in this respect. These are that GLEP's preference for basement car parking, as espoused in the objectives of the FSR standard, have practical difficulties on this site due to the site being in part flood-affected. That is that the underground parking would bring considerable potential for its own environmental impacts. The second relates to the relatively small scale of the breach at less than 2%.

Public interest

I am also satisfied that the development will be in the public interest because it is consistent with the objectives of the FSR standard and the zone objectives. For the reasons outlined in the written request and explained above, I am satisfied that the development is consistent with the objectives of the FSR standard.
The zone R1 General Residential objectives are as follows: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that development is compatible with the desired future character of the zone. • To promote best practice in the design of multi dwelling housing and other similar types of development. • To ensure that non-residential uses do not adversely affect residential amenity or place demands on services beyond the level reasonably required for multi dwelling housing or other similar types of development.
The first two zone objectives are achieved simply as a consequence of the form of development proposed. Because of the arguments in the written request, and considered above, the development is compatible with the desired future character of the zone and the fourth objective is achieved. I believe that generally, the proposed development is of good quality design and thus is consistent with the fifth zone objective. The third and sixth zone objectives are not relevant.
In accordance with the above findings, I have formed the required two positive opinions of satisfaction under cl 4.6(4)(a)(ii). I am of the opinion that the proposal is in the public interest because it is consistent with the objectives of the relevant development standard and the objectives for development within the relevant zones.
When a matter is on appeal, the Court is not required to obtain the concurrence of the Secretary (cl 4.6(4)(b)), however, it should still consider the matters in cl 4.6(5). I have done so and see no matters of relevance therein.
In accordance with the above findings, the conditions which are required to be satisfied before the permissive power in cl 4.6(2) comes into effect have been met. This enlivens the power of the Court to grant development consent notwithstanding its contravention of the FSR standard.

Other provisions of s 4.15(1) of the EPA Act

In regard to s 4.15(1)(a)(ii) of the EPA Act, the parties have drawn to my attention the fact of CCLEP. But nothing of substance turns on this instrument (see [10]).
I have considered the provisions of GDCP, which have from time to time come to attention in my participation in these proceedings, and the requirements of s 4.15(1)(a)(iii) of the EPA Act, have been met.
Council's statement of facts and contentions filed on 16 May 2022 advised of the notification of the proposal to surrounding properties. I also had the chance to hear from a number of objectors during the site inspection on 19 July 2022. I have taken into consideration these objecting submissions in accordance with the requirement of s 4.15(1)(d)(iii) of the EPA Act.
I have also given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(b), (c) and (e) of the EPA Act.

Conclusion

Based on the above considerations, 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. It follows that I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
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 had been in dispute between the parties.
The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect.
The Court orders: 1. The Applicant's amended request under clause 4.6 of the Wyong Local Environmental Plan is upheld. 2. The appeal is upheld. 3. Development consent is granted to development application DA-62725/2021 as amended for the demolition of existing structures and the erection and construction of a two (2) storey residential flat building and dwelling comprising five (5) units, with at grade car parking, subject to the conditions at Annexure A. ………………………. Peter Walsh Commissioner of the Court

ANNEXURE A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 September 2022

At a glance

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Judgment (13 paragraphs)

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Cases Cited (1)