Parklands Kariong Development Pty Ltd v Central Coast Council

Catchwords: DEVELOPMENT APPLICATION – subdivision and development of part of the site for fast food outlets, new road access, tree removal and associated works – conciliation conference – amended plans and information – agreement between the parties – orders made

Legislation Cited: Biodiversity Conservation Act 2016, Pt 6, Div 3, ss 7.4, 7.7, 7.13, 9.4
Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 8.7, 8.15, 10.3
Heritage Act 1977, s 58
Land and Environment Court Act 1979, s 34
Roads Act 1993, ss 47, 70
Rural Fires Act 1997, s 100B
Biodiversity Conservation Regulations 2017, cll 6.7, 6.8, 7.1, 7.2, 7.3
Central Coast Local Environmental Plan 2022
Environmental Planning and Assessment Regulations 2021, ss 23, 25, 38
Gosford Local Environmental Plan 2014, cll 2.6, 5.10, 7.1, Sch 5
State Environmental Planning Policy (Biodiversity Conservation) 2021, Pt 2.3, Ch 2, 4, 9, s 6.65
State Environmental Planning Policy (Industry and Employment) 2021, Ch 3, ss 3.1, 3.6, Sch 5
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.122, Sch 3
State Environmental Planning Policy Amendment (Water Catchments) 2022

Texts Cited: Gosford Development Control Plan 2013

Category: Principal judgment

Parties: Parklands Kariong Development Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
F Rourke, solicitor (Applicant)
C Rose, solicitor (Respondent)
Solicitors:
Allens (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2024/172563

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by Parklands Kariong Development Pty Ltd against the refusal of development application DA/1760/2022. The development application seeks consent for the subdivision of the site into four lots, earthworks, tree removal, construction of a new entry and internal roads, construction and use of three fast food outlets (being McDonalds, KFC, GYG), landscaping and civil works. The development is proposed at 5 The Avenue, Kariong (Lot 101 in DP 1256044).

2. The amended development application proposes the following:

3. The torrens title subdivision of the site into four lots;

4. Cut and fill earthworks;

5. Tree removal;

6. Construction of a new left-in (only) entry road (right of carriageway) and deceleration lane to the Central Coast Highway and partial road widening;

7. A second internal road (right of carriageway) for the three proposed food and drink premises (McDonald's, KFC and GYG) on proposed Lots 2, 3 and 4;

8. Stormwater infrastructure and public utility services;

9. Landscaping;

10. Signage (excluding pylon signs);

11. Construction and use of a McDonald's food and drink premises on proposed Lot 2 with a total gross floor area (GFA) of 380m2, 38 car spaces and two (2) drive-thru bays;

12. Construction of a KFC food and drink premises on proposed Lot 3 with a GFA of 272m2, 32 car spaces and two (2) drive-thru bays; and

13. Construction of a GYG food and drink premises on proposed Lot 4 with a GFA of 277m2, 28 car spaces and two (2) drive-thru bays,

14. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 4 November 2024. The conciliation was ultimately terminated and the matter listed for hearing. 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 in December 2024, seeking to address the Respondent’s concerns.

15. The parties continued discussions and reached an agreement based on amended plans and documents. 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 7 April 2025 and the hearing was adjourned. I presided over the further conciliation conference.

16. As the presiding Commissioner, I am satisfied that the decision is one 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). I form this state of satisfaction on the basis that:

17. The development application was lodged on 23 June 2022, Environmental Planning and Assessment Regulation 2021 (EPA Reg) applies. As required by s 23(1) of the EPA Reg the owners of the site consented to the lodgement of the development application.

18. The development application was notified by the Respondent from 8 July to 5 August 2022. The Respondent received 88 submissions, 86 submissions in objection. The amended development application was notified from 17 January to 17 February 2025. At the commencement of the matter on site, the Court was addressed by a number of concerned residents. I am satisfied that the submissions have been considered in the determination of the development application by either amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

19. The proposed development is integrated development pursuant to s 4.46 of the EPA Act. The proposed development requires, and has been provided, concurrences and general terms of approvals (GTAs) pursuant to s 25 of the EPA Reg. The annexed conditions incorporate any conditions from those integrated authorities. In particular:

(a) The development application proposes the construction of a left-in only access from the Central Coast Highway to the Site. The Central Coast Highway is classified as a State highway pursuant to s 47 of the Roads Act 1993 (Roads Act). Accordingly, concurrence is required from Transport for NSW (TfNSW) for the construction of vehicular access to the Central Coast Highway under s 70 of the Roads Act. On 20 April 2023, TfNSW granted consent to the proposed road opening onto Central Coast Highway and raised no objection to the development application. TfNSW issued its concurrence pursuant to s 2.122 and Sch 3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) and its consent pursuant to s 70 of the Roads Act on 20 April 2023. The amended development application was referred to TfNSW and no further response was received. (b) The Site is located within the Mount Penang Parklands Conservation Area, which is listed on the State Heritage Register as Item 01667. under s 58 of the Heritage Act 1977, approval is required from Heritage Council of NSW for demolition, vegetation removal, alterations to buildings and erections of new buildings on the site of a State Heritage Item. Accordingly, the development application was referred to Heritage NSW. On 22 May 2023, GTAs were issued by the Heritage Council of NSW. The amended development application was referred to the Heritage Council of NSW and updated GTAs were issued by the Heritage Council of NSW on 17 March 2025 (c) Parts of the Site are identified as being Vegetation Buffer Area on the NSW RFS Bushfire Prone Land Map, pursuant to s 10.3 of the EPA Act. The amended development application requires authorisation under s 100B of the Rural Fires Act 1997 and requires a ‘bushfire safety authority’ from the NSW RFS for development of bushfire prone land for a ‘special fire protection purpose’. On 10 August 2023, GTAs were issued by NSW RFS for the development application. Further, on 30 January 2025, the NSW RFS wrote to the Respondent confirming that a Bush Fire Safety Authority is not required (d) The Biodiversity Conservation Act 2016 (BC Act) applies to the development application. The proposed development exceeds the biodiversity offsets scheme threshold (BOS) under s 7.4 of the BC Act as it:

(i) Proposes clearing of vegetation on land which is mapped on the Biodiversity Values Map published under cl 7.3 of the Biodiversity Conservation Regulation 2017 (BC Reg), thereby exceeding the BOS threshold under cl 7.1(1)(b) of the BC Reg; and (ii) Clearing of vegetation of an area declared by cl 7.2 of the BC Reg as exceeding the threshold under cl 7.1(1)(a) of the BC Reg.

(e) Pursuant to s 7.7 of the BC Act, the amended development application is accompanied by a Biodiversity Development Assessment Report (BDAR) which complies with Division 3 of Part 6 of the BC Act, cl 6.8 of the BC Regulation and the Biodiversity Assessment Method (BAM). (f) With the assistance of the BDAR I am satisfied that the following jurisdictional preconditions are met:

(i) In accordance with s 7.13(2) of the BC Act the BDAR assesses the likely impact of the proposed development on biodiversity values, enabling me to take into consideration the likely impact of the proposed development on biodiversity values. (ii) The Swift Parrot is an endangered threatened species listed under the BC Act, and parts of the site are included on the Swift Parrot Important Habitat Map. (iii) I find that the BDAR has considered the principles at cl 6.7 of the BC Regulation setting out appropriate mitigation measures, including the provision of a Biodiversity Management Plan. On this basis I am able to be satisfied that the development is not likely to have a serious and irreversible impact on biodiversity values. (iv) The BDAR demonstrates that sufficient steps have been taken to avoid and minimise the biodiversity impacts of the development as required by cl 6.3A of the BC Act.

4. The requirements of Ch 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) are satisfied as the development application seeks development consent for the removal of any trees to which Pt 2.3 of the SEPP BC applies.
5. Chapter 4 of SEPP BC applies to the site. 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. I am satisfied that the site is not core koala habitat.
6. The site is located in the Hawkesbury -Nepean Catchment. Section 6.65 of SEPP BC that the former provisions applicable to the Hawkesbury-Nepean Catchment apply to an application lodged, but not finally determined, before the commencement of State Environmental Planning Policy Amendment (Water Catchments) 2022 on 21 November 2022.

Given the DA was lodged prior to 21 November 2022, the former provisions that were in force immediately before that date apply. These provisions were contained in Ch 9 of the SEPP BC. Chapter 9 requires the matters in s 9.4 of SEPP BC to be considered by the consent authority. These matters are addressed in the Statement of the Environmental Effects (SEE). I have considered these matters in determining the development application.

7. The development application proposes business identification signage. Accordingly, Ch 3 of State Environmental Planning Policy (Industry and Employment) 2021 (SEPP IE) applies. The DA does not include any proposed pylon advertising signs which will require a future development application to be submitted to the Council. Section 3.6 prevents a consent authority from granting development consent to an application to display signage unless the consent authority is satisfied that:

(a) the signage is consistent with the objectives of Ch 3, set out at s 3.1; and

(b) the signage the subject of the application satisfies the assessment criteria specified in Sch 5 of SEPP IE

8. The parties agree, and I accept that with the assistance of the SEE and the architectural plans, I can be satisfied that the proposed business identification signs will be compatible with the desired amenity and visual character of the Kariong locality and specifically with the desired amenity and visual character of the Mount Penang Parklands area; the proposed signs will provide effective communication in suitable locations of the proposed McDonalds, KFC and GYG food and drink premises; and the proposed signage will be of a high quality design and finish.
9. Further, that the business identification signage will satisfy the assessment criteria in Sch 5 of SEPP IE on the following basis:

Character of the area –

- the proposed identification signage will be compatible with the existing and desired future character of the Kariong locality and in particular the Mount Penang Parklands area; and

- the proposed signage is consistent with the particular commercial theme for outdoor advertising in this area being identified as an SP1 Special Activities Zone under the LEP2014 and as the “Highway/ Commercial Precinct” under the DCP2013;

Special Areas –

- The proposed signage will not detract from the amenity or visual quality of any environmentally sensitive areas, heritage areas, natural or other conservation areas, open space areas, waterways, rural landscapes or residential areas within the Mount Penang Parklands area and the Kariong locality;

Views and vistas -

- The proposed signage will not obscure or compromise any important views; and

- Nor dominate the skyline and reduce the quality of vistas; and

- Will respect the viewing rights of other advertisers;

- Streetscape, setting or landscape -

- The scale, proportion and form of the proposed business identification signage for the proposed McDonalds, KFC and GYG food and drink premises is appropriate for the streetscape, setting and landscape context of the site; and

- The proposed signage will add visual interest to the existing and desired streetscape, visual setting and landscape context without resulting in advertising clutter or unsightliness;

- The proposed signage will not protrude above buildings, structures or the tree canopies in the area or locality including the green buffer setback area along the Central Coast Highway site frontage which will be subject to an ongoing Vegetation Management Plan;

Site and building -

- The proposed signage is compatible with the scale, proportion and characteristics of the McDonalds, KFC and GYG buildings; and

- The proposed signage will not adversely impact on any important features of the site or buildings; and

- The proposed signage for the McDonalds, KFC and GYG food and drink premises shows innovation and imagination in relation to the buildings;

- Associated devices and logos with advertisements and advertising structures -

- The proposed signage has been designed to satisfy safety requirements;

Illumination -

- The proposed signage will not result in any adverse illumination effects which would adversely impact safety for pedestrians, vehicles or aircraft nor adverse amenity impacts to surrounding residential properties or other forms of accommodation and land uses;

Safety -

- The proposed signage will not have any adverse impacts on safety for any public road, pedestrians or bicyclists including in respect to the potential for obscuring sight lines from public areas.

10. Section 4.6 of 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. The site has previously been used as a grass car parking area for festivals at Mount Penang Parklands. The parties submit, and I agree, that there is a low risk that the site is contaminated. I am satisfied that the site will be suitable for the purpose of the development application.
11. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies to the development in two ways. Firstly, the site has frontage to Central Coast Highway which is a classified road, and secondly that the proposed development is traffic generating development.

(a) Section 2.119(2) of SEPP TI SEPP prevents a consent authority from granting consent to development on land that has a frontage to a classified road unless certain conditions are satisfied with respect to vehicular access. The Site has a frontage to Central Coast Highway which is a classified road to which s 2.119 of the SEPP TI applies. The parties agree, and I accept following the assessment and concurrence of Transport for NSW (TfNSW) that the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development and that the requirements of s 2.119(2) are met. (b) The proposed development is traffic-generating development to which s 2.122 of the SEPP TI applies. Section 2.122(4) of SEPP TI prevents a consent authority from determining a development application to which this provision applies unless the consent authority gives written notice of the application to TfNSW. TfNSW has consented to the proposed road opening onto Central Coast Highway and raises no objection to the development application. (c) The now repealed Gosford Local Environmental Plan 2014 (LEP 2014) applies to the Site because the development application was made, but not finally determined, before the commencement of the Central Coast Local Environmental Plan 2022 on 1 August 2022. The site is zoned SP1: Special Activities: Mount Penang Parklands under LEP 2014. The development (food and drink premises – retail premises) are permissible with consent. In determining the development application, I have given consideration to the zone objectives. The proposed subdivision is permitted by cl 2.6 of LEP 2014. (d) Clause 5.10 ‘Heritage conservation’ applies as development consent is required for subdivision of land within a heritage conservation area and on land on which a heritage item is located. The Site is within the Mount Penang Parklands Heritage Conservation Area and is listed as a State heritage item. Further, within the bounds of the site is Heritage Item No 74 ('Two groups of scribbly gums') identified in Pt 1 to Sch 5 of the LEP 2014 as having local significance. A heritage impact assessment assessing the impact of the proposed development on both of these items accompanies the development application. I accept that the proposed development will not have a detrimental impact on the significance of these heritage items. (e) Pursuant to cl 7.1 ‘Acid sulfate soils’ development consent must not be granted for the carrying out of works on certain land unless an acid sulfate soils management plan has been prepared and provided to the consent authority. The site is identified as class 5 of the Acid Sulfate Soils Map. No works are proposed within 500m of adjacent Class 1, 2, 3 or 4 land, that is below 5m AHD, and by which the water table is likely to be lowered below 1m AHD on adjacent Class 1, 2, 3 or 4 land. Clause 7.1 is satisfied. (f) The now repealed Gosford Development Control Plan 2013 (DCP 2013) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of the 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.

6. 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)).

7. 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.

8. The Court notes that the Respondent has agreed under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) to the Applicant further amending Development Application No. DA/1760/2022 to rely upon the following amended plans and documents:

| Tab | Document | Date | | 1. | Amended Civil Engineering Plans prepared by ADW Johnson | 7 March 2025 | | 2. | Amended Architectural Plans prepared by Stevens Group | 7 March 2025 | | 3. | Amended Landscape Plans prepared by Michael White Landscape Architecture | 13 March 2025 | | 4. | Additional Swept Path Drawings prepared by Colston Budd Rogers & Kafes Pty Ltd | 7 March 2025 |

9. The Court orders that:

10. The appeal is upheld

11. Development consent is granted to Development Application No. DA/1760/2022 for a 4-lot subdivision, 3 fast food outlets (being McDonalds, KFC, GYG) and associated external road works, earthworks, tree removal, landscaping, stormwater infrastructure and services, car parking and signage at 5 The Avenue, Kariong NSW 2250 (Lot 101 DP 1256044) subject to conditions in Annexure A.

12. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendments of the development application made on 18 December 2024 and made those noted at par [7] in the sum of ($33 500) payable within 28 days of the date of these orders.

D Dickson

Commissioner of the Court

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Annexure A