Printban Pty Ltd v Central Coast Council

Texts Cited: Central Coast Community Engagement Strategy 2023-2024
Central Coast Development Control Plan 2022

Category: Principal judgment

Parties: Printban Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
T To (Applicant)
C Rose (Solicitor) (Respondent)
Solicitors:
Beatty Hughes & Associates (Applicant)
Central Coast Council (Respondent)

File Number(s): 2023/420863

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application No DA/409/2023 (the DA) seeking consent for the community title subdivision to create 13 residential lots including associated servicing works, roadworks, earthworks, demolition and landscaping at 255, 255A and 255B Avoca Drive (legally known as Lot A, DP 449600, Lots 2, 3 and 9 DP 976799); and 19 Picketts Valley Road, Kincumber (legally known as Lot A, DP 449600 and Lots 2, 3 and 9 DP 976799) (the site).

2. The DA as lodged with the Respondent on 22 March 2023 included the following elements:

3. Demolition of the existing structures and driveway;

4. Consolidation of the 4 lots into one (1) lot and Community title subdivision to create thirteen (13) lots;

5. Infrastructure works internal and external to the site to create water, stormwater, sewer, electricity and NBN connections;

6. The construction of a private road internal to the site and relocation of existing vehicular access to Avoca Drive approximately 70m east of the current position;

7. Earthworks, filling and flood mitigation works;

8. Installation of water quality/quantity treatment devices;

9. Removal of vegetation; and

10. Landscaping.

11. The Respondent stated in its amended Statement of Facts and Contentions (the amended SOFAC) that essential servicing for the site will involve the following aspects occurring internally and externally to the site:

12. Water and wastewater pipe infrastructure works to connect to the existing Council infrastructure;

13. The construction of an internal private access road with associated kerbing and passing bays; and

14. All other utility services will be extended and augmented as required to service future dwellings.

15. The Court granted leave to amend the DA on which the Applicant relied upon on 3 May 2024. The Court also ordered that the Applicant pay the Respondent's costs pursuant to s 8.15(3) of the EPA Act.

16. A conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties was convened by the Court on 22 July 2024. I presided over the s 34 conciliation conference. Two submitters attended the on-site view and made submissions to the Court.

17. The s 34 conciliation conference was adjourned to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent, and subsequently further adjourned multiple times to allow the parties time to consider and review the revised plans and to finalise the s 34 agreement and conditions of consent based on an amended development application.

18. A Notice of Motion was filed 11 October 2024 seeking leave to amend the application (the further amended DA) and rely on documents of Exhibit A submitted with the Notice of Motion. This motion was granted by the Court on 18 October 2024. The Court ordered that the Applicant pay Respondent's costs thrown away as a result of the amendments to the application, pursuant to s 8.15(3) of the EPA Act as agreed or assessed.

19. After the conciliation conferences, and the assessment by the Respondent of the further amended plans, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

20. The parties advise that the agreed amendments incorporated in the final amended plans (cumulatively made since the proceedings commenced) include the following:

21. The proposed lot configuration has been amended to address town planning issues raised by the Respondent, including a reduction in the total number of lots from 13 to 12;

22. Additional planting has been added to the landscaping treatment along the western boundary of the site to address privacy and overlooking concerns of a neighbour to the west of the site;

23. Additional tree identification, retention and (where required) replacement planting has been proposed to address arboricultural issues raised by the Respondent;

24. A Vegetation Landscape Control Plan has been developed to establish and maintain vegetation outside of the Biodiversity Management areas in a way that maintains ecological value while managing bushfire risk; and

25. The life of the Biodiversity Management Plan has been extended to increase the extent and duration of management activities.

26. A signed s 34 agreement with Annexure A was filed with the Court on 21 February 2025. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

27. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

28. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act. This decision involved the Court upholding the appeal and granting development consent to the DA subject to conditions.

29. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a jurisdictional note accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Prerequisites

Owner’s Consent

14. When the DA was lodged with the Respondent, Owners’ Consent from the owner of the site at the time was granted. The parties advise that the site is now owned by the Applicant.

15. It is noted that the Respondent advised in the amended SOFAC that the essential servicing of the site will involve a number of aspects occurring internally and externally to the site and affecting Council land as follows:

16. Water and wastewater pipe infrastructure works to connect to the existing Council infrastructure;

17. The construction of an internal private access road with associated kerbing and passing bays; and

18. All other utility services will be extended and augmented as required to service future dwellings.

19. The proposed development does not require any other landowners’ consent.

Community Participation - (Sch 1, Div 2, s 7(1) of the EPA Act)

17. The parties advise that the DA was exhibited to the public from 6 April 2023 to 9 May 2023, in accordance with the provisions of the Central Coast Community Engagement Strategy (2023-2024) and s 7(1) of Div 2 in Sch 1 of the EPA Act. 7 submissions were received by the Respondent, with 6 objections and 1 submission in support.

18. The amended development proposal (the amended DA) was publicly exhibited from 17 May 2024 until 17 June 2024. 3 additional submissions were received by the Respondent.

19. The further amended development proposal (the further amended DA) was publicly exhibited from 25 October to 22 November 2024 (after the on-site view and the commencement of the s 34 conciliation conference process and as a result of further amendments to the proposed development).

Conditions

20. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Roads Act 1993

21. The site fronts Avoca Drive, which is a classified road. The parties advise that the proposed development includes works in the road reserve of that classified road. Accordingly, an approval from Transport for NSW (TfNSW**)** as the relevant roads authority is required under s 138 of the Roads Act 1993*.*

22. The DA was referred to TfNSW and a response was received by the Respondent indicating TfNSW’s in-principle acceptance of the design. Conditions from TfNSW have been attached to the conditions of consent (refer to condition 1.2).

Integrated Development

23. The parties advise that the proposed development is Integrated Development under the Rural Fires Act 1997 and Water Management Act 2000 and that:

24. The DA as lodged was referred to external agencies on 31 March 2023;

25. An amended form of the proposed development (the amended DA) on which the Court granted leave to the Applicant to rely on 3 May 2024 was referred to external agencies; and

26. A further amended form of the proposed development (the further amended DA) on which the Court granted leave to the Applicant to rely on 18 October 2024 was referred to external agencies.

27. The parties advise that the Rural Fire Service (RFS), Transport for NSW (TfNSW), and the Department of Planning and Environment – Water and Department of Primary Industries and Regional Development – Fisheries, have all granted General Terms of Approval (GTA’s) and these are attached to the conditions of consent.

Biodiversity Conservation Act 2016

25. Section 7.7(2) of the Biodiversity Conservation Act 2016 (the BC Act) applies to the site because for the purposes of s 7.7(2) of the BC Act the proposed development is ““likely to significantly affect threatened species” as clearing is proposed on the site that exceeds the biodiversity offsets scheme threshold (refer to s 7.2(1) of the BC Act).

26. A biodiversity development assessment report (BDAR) has therefore been prepared in accordance with the Biodiversity Assessment Method (BAM) (s 6.12(a) of the BC Act refers).

27. The parties advise that:

28. The Respondent considers that the impact is acceptable having taken into consideration in accordance with s 7.13(2) of the BC Act “the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application”; and

29. The parties are also satisfied that the Proposal is consistent with the purposes of the BC Act (s 1.3) and that biodiversity impacts have been appropriately avoided, minimised and/or offset where relevant. In this regard, the parties note, in particular:

(a) the biodiversity and arboricultural management measures proposed in the Biodiversity Management Plan and the Vegetation Landscape Control Plan; and (b) the setting aside of large areas of land for environmental management and vegetation retention (i.e. avoidance) under the Biodiversity Management Plan.

Central Coast Local Environmental Plan 2022

28. The Central Coast Local Environmental Plan 2022 (the LEP) is the relevant local environmental planning instrument that applies to the site. Pursuant to cll 2.2 and 2.3 of the LEP the site is zoned C4 Environmental Living.

29. The proposed development is permissible with consent pursuant to cl 2.6 of the LEP.

30. The C4 Environmental Zone Objectives are:

31. To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

32. To ensure that residential development does not have an adverse effect on those values.

33. To allow additional land uses that will not have an adverse impact on those values.

34. The parties agree that the proposed development is consistent with these objectives. The Applicant substantiates its consistency with these objectives in the SEE. The Respondent’s consideration of these objectives is noted in its Amended SOFAC.

35. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the subdivision and associated works are proposed to be carried out.

36. Pursuant to cl 4.1AA and the LEP’s minimum lot size (MLS) maps, the MLS for the site is 2 ha. The parties advise that all of the lots proposed by the Applicant are compliant with this requirement except for:

37. one lot that is 1.8 ha in area. In relation to that lot, the Applicant has submitted to the Respondent a written variation request prepared by DFP Planning Consultants dated 11 October 2024 in accordance with cl 4.6 of the LEP which sets out the planning justifications for the departure from the MLS under the LEP. The Respondent is satisfied that the variation in lot size achieves the objectives of cl 4.6, and that the variation is appropriate; and

38. one other lot that is 299 m2 in area. In relation to that lot, cl 4.1AA(3) excludes community association property from the MLS requirements under cl 4.1AA. This lot is proposed to be community association property and so the exemption applies to it.

39. I am satisfied that:

40. The Applicant’s cl 4.6 written request is well founded and that the variation to the MLS development standard for one lot that is 1.8 ha in area is acceptable noting that:

(a) A compliant lot size would for this one lot (proposed Lot 8) would result in the creation of unnecessary small strips of land purely for the purpose of complying with the 2.0 ha minimum lot size; (b) Permitting proposed Lot 8 to be undersized achieves a regular subdivision pattern for the whole site with generous building envelopes for all of the dwelling lots and significant retention of vegetated areas and without having any adverse environmental impacts on the site and locality; (c) Non-compliance results in a better design outcome, does not create narrow sections within any allotment of the proposed Community Title subdivision, allows residents to better manage Asset Protection Zones and Vegetation Conservation Management land, whilst still providing adequate developable area for a dwelling and other ancillary works and open space for proposed Lot 8; and (d) The yield from the proposed subdivision of the site is not increased.

2. Compliance with the MLS development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP because the proposed development achieves the objectives of the MLS development standard, for the reasons provided within the Applicant’s written request, which I adopt;
3. There are sufficient environmental planning grounds to justify contravening the MLS development standard, as required under cl 4.6(3)(b) of LEP, for the following reasons:

(a) The unique circumstances of the site such as the location and distribution of areas across the site required to be retained for vegetation conservation and management purposes, relative to existing cleared areas of the site; (b) The proposed subdivision providing for flooding and bushfire mitigation measures; (c) The proposed development being consistent with surrounding large lot rural and residential subdivision and the character of the locality; (d) Conservation and management of the sensitive environmental values of the site; and (e) Protection or avoiding impacts to an area of high biodiversity value.

35. Approval of the proposed development will be in the public interest for the reasons provided at para [34(3)] above, and because the proposed development is consistent with the objectives for the MLS development standard for development within the C4 Environmental Living zoning of the subject site, for reasons provided within the Applicant’s written request, which I also adopt.

36. In accordance with cl 5.21 of the LEP, the Respondent advises that it has considered the flood risks and impacts of the proposed development, including as assessed in the Applicant’s Flood Impact Assessment Report, and is satisfied that the objectives of cl 5.21 of the LEP have been met and that the proposed development satisfies the flood risk requirements of cl 5.21(2).

37. Clause 7.1 of the LEP relates to acid sulfate soils. The parties advise that the Soil and Water Management Plan included with the DA confirms that “local acid sulfate risk mapping indicates that the site is located within an area identified as having no known occurrence of acid sulfate soils.” As such, the parties advise that an acid sulfate soils management plan for the purposes of cl 7.1(3) is not required.

38. Clause 7.6 of the LEP prevents the grant of consent unless services essential for the development are in place, or arrangements have been made to make them available when required. The parties advise that essential services of water, electricity, sewage management, stormwater management, vehicular access and waste management are available, or adequate arrangements have been made to make them available when required.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

39. Chapter 4 (“Koala habitat protection 2021”) and s 4.9 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) apply to the Central Coast local government area.

40. The parties advise that:

41. A Koala Plan of Management does not apply to the site;

42. Appendix G of the BDAR for the proposed is responsive the requirements of the Biodiversity SEPP and provides information of the kind described in s 4.9(5) of the Biodiversity SEPP, concluding that “koalas are not present on site, the site is not considered to be core koala habitat and it is not anticipated that the proposal will impact koalas in the present or future”.

43. With the benefit of that information, the Respondent has reached the requisite state of satisfaction on this issue.

State Environmental Planning Policy (Resilience and Hazards) 2021

41. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (the Resilience SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.

42. The parties advise that the Applicant has provided:

43. A Phase 2 Contamination Assessment for the site, which concludes that the site can be made suitable for the proposed development provided that certain, specified steps are taken; and

44. A Remediation Action Plan and Contaminated Land Management Plan, which are responsive to the findings of the Phase 2 Contamination Assessment and set out means by which the site can be rendered suitable for the proposed development.

45. The Respondent advises that it has considered these documents and reached the requisite level of satisfaction for the purposes of s 4.6 of the Resilience SEPP.

46. The Court is satisfied for the purposes of s 4.6 of the Resilience SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

45. Section 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (the Transport and Infrastructure SEPP) applies to the proposed development as the site fronts Avoca Drive, which is a classified road.

46. The DA was referred to TfNSW and a response was received by the Respondent indicating TfNSW’s in-principle acceptance of the design (refer to condition 1.2 of the Conditions of Consent).

Central Coast Development Control Plan 2022

47. All contentions relating to non-compliance of the proposed development with the provisions of the Central Coast Development Control Plan 2022 (the DCP) as identified in the Amended SOFAC have been resolved in the further amended DA.

Additional Amendments to the Further Amended DA

48. The parties advise that the orders sought in the s 34 agreement also reflect some minor, further amendments proposed by the Applicant to a small number of documents in the further amended DA, including:

49. minor clarification of Biodiversity Management Plan requirements at certain stages of the development process;

50. clarification of responsibility for biodiversity management under the draft Community Management Statement;

51. confirmation of requirements for the keeping of pets within the proposed Community Association;

52. additional details of planting types and locations in the landscape plans; and

53. very minor correction of details in the subdivision plans for registration.

Conclusion

49. Having considered the advice of the parties provided above at [14] - [48], I am satisfied that:

50. The applicants’ further amended DA can be approved, having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

51. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

52. Approval of the proposed development is in the public interest.

53. Further, 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.

54. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

55. 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.

Notes

53. The Court notes that:

54. Central Coast Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application No DA/409/2023 made on 21 February 2025 to rely on the plans and documents specified below:

(a) Plans of Subdivision (3 sheets – ref 190831-DP-001-G) – undated (b) Layout Plan “Bangaloe 11 Lot Subdivision Option 7” (1 sheet – ref 190831-SSK-007-D) – 21 January 2025 (c) Landscape Plans (Rev P) – 3 February 2025:

(i) 14358.5 DA L001 site analysis - existing character (ii) 14358.5 DA L002 site analysis – images (iii) 14358.5 DA L003 site analysis - existing conditions & constraints (iv) 14358.5 DA L201 landscape masterplan (v) 14358.5 DA L202 detail area 1 (vi) 14358.5 DA L203 detail area 2 (vii) 14358.5 DA L204 detail area 3 - entry (viii) 14358.5 DA L205 Planting Plan and Canopy Coverage Calculation (ix) 14358.5 DA L206 planting detail 1 (x) 14358.5 DA L207 planting detail 2 (xi) 14358.5 DA L401 plant schedules (xii) 14358.5 DA L402 typical section along internal road

(d) Draft Community Management Statement - undated (e) Biodiversity Management Plan (Revision 07) – February 2025.

Orders

54. The Court orders:

55. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the development application, in the agreed amount of $30,000, such amount to be paid within 45 days of the date of this order.

56. The appeal is upheld.

57. The request pursuant to cl 4.6 of the Central Coast Local Environmental Plan 2022 to vary the development standard for minimum lot size contained within cl 4.1AA thereof, as prepared by DFP Planning Consultants dated 11 October 2024, is upheld.

58. Development consent is granted to development application No DA/409/2023 for a residential subdivision and associated works at 255, 255A and 255B Avoca Drive and 19 Picketts Valley Road, Kincumber, legally known as Lot A, DP 449600 and Lots 2, 3 and 9 DP 976799, subject to the conditions at Amended Annexure A.

G Kullen

Acting Commissioner of the Court

**********

Amended Annexure A (4.88 MB, pdf)

Amendments

24 June 2025

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the slip rule). The slip rule seeks to: (1) Remove reference to a date of filing Amended Plans and materials at [10]. (2) Amend wording in judgment body at [40] to correct a reference to legislation. (3) Amend Annexure A to: a. Include a date of decision on the cover page; b. Renumber the second Condition 6.6 to 6.7; c. Correct the numbering of Condition 3.6.