Resico Pty Ltd v Central Coast Council

Texts Cited: Central Coast Development Control Plan 2022
NSW Department of Planning and Environment Apartment Design Guide
Wyong Development Control Plan 2005

Category: Principal judgment

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

Representation: Counsel:
P Tomasetti SC (Applicant)
C Rose (Solicitor) (Respondent)
Solicitors:
Ristevski & Associates (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2024/297707

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: These proceedings are a Class 1 development appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application DA/133/2003/F (the sixth Modification Application) by the Central Coast Council to modify Development Consent DA/133/2003 to change the design of a new residential flat building at Lot C DP 343781, Lot E DP 403890, Lot 2 DP 205929 and Lot 11 DP 502613, known as 2a, 2, 4, and 6 Bayview Avenue, The Entrance, NSW, 2261 (the site).

2. The parties advise that the proposed development (the sixth Modification Application) is submitted pursuant to the provisions of s 4.55(2) of the EPA Act.

3. The sixth Modification Application as lodged with the Respondent on 14 December 2022 included the following proposed modifications:

4. Increased number of basement levels from 1 to 2, including reconfiguration of the approved basement level car parking layout and increased number of car parking spaces by 25, from 72 to 97 (comprising 86 residential spaces and 11 visitor spaces). The proposed Basement Level 1 comprises 43 car spaces and Basement Level 2 comprises 54 car spaces;

5. Introduction of openings in northern external wall of Basement Level 1 which extends above ground level;

6. Reconfiguration of ground level layout including:

(a) Removal of three at-grade car spaces in the southeast corner of the site; (b) Relocation of the fire hydrant booster adjacent to the Bayview Avenue frontage of the site; (c) Removal of the swimming pool and cabana area in the northeast corner of the site; and (d) Introduction of a new waste collection area and waste vehicle loading area within the front setback area adjacent to Ambler Parade.

4. Reconfiguration of the lift lobby, light well and residential unit layout at each level of the building;

5. Altered residential unit mix maintaining 48 units in the development;

6. Provision of lift access to the rooftop private open space areas (Unit 43 to 48) and inclusion of a bathroom and BBQ facilities for each unit;

7. Increased building height to the top of parapet/rooftop balustrade by 3.8 metres (approximately), from RL 37.9 to RL 41.7;

8. Increased floor to floor heights at Basement Level 1, Level 1 and Level 8;

9. Deletion of roof feature and shading devices and replacement with a solid flat roof design (roof form components reduced in scale), resulting in an overall increased maximum building height for the development of 2 metres (approximately);

10. Modified façade design, including replacement of circular window openings with rectangular openings on the southern, eastern, western elevations; and

11. Increased gross floor area by 30m2 from 7,157m2 to 7187m2.

12. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the Modification Application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal are made as a result of an agreement between the parties that was reached following a conciliation conference.

History of the Development Consent

5. The parties advise that development application DA/133/2003 (the original DA) was approved by Council on 25 August 2003, and that the Development Consent has since been modified as follows:

6. The first Modification Application (DA/133/2003/A) was approved on 29 June 2004 for an increase in building height by 300mm, reconfiguration of internal layout of residential units, and façade, window and balcony design changes;

7. The second Modification Application (DA/133/2003/B) was approved on 15 October 2004 for addition of a swimming pool and cabana, shade structure on the roof and fixed louvres along the norther wall of the basement level;

8. The third Modification Application (DA/133/2003/C) was approved on 17 February 2005 to allow for the retention of car space No. 58;

9. The fourth Modification Application (DA/133/2003/D) was approved on 7 November 2007 and included amongst other changes, increases to floor to ceiling heights, increased overall building height, and replacement of roof top communal open space with private open space areas.

10. The fifth Modification Application was withdrawn on 29 May 2009.

11. On 15 August 2005, the Respondent granted a 12 month extension to the consent lapse date (to 25 August 2006) pursuant to (former) s 95A(1) of the EPA Act.

12. On 11 July 2006, the Respondent stated that “Council is satisfied the development is considered to have substantial commencement”.

The Sixth Modification Application

8. On 14 December 2022, the Applicant lodged the sixth Modification Application (DA/133/2003/F), which proposed the changes listed at par [3] above.

9. On 19 February 2024 the Respondent refused the sixth Modification Application.

Current Proceedings

10. The Applicant, dissatisfied with the Respondent’s determination of the sixth Modification Application, filed a Class 1 Appeal Application on 13 August 2024 under s 8.9 of the EPA Act seeking to modify the Development Consent. Central Coast Council is the Respondent to this appeal by virtue of s 8.15(4) of the EPA Act.

11. The Respondent filed a Statement of Facts and Contentions with the Court on 17 October 2024. The Applicant lodged a Statement of Facts and Contentions in Reply on 26 November 2924.

Section 34A conciliation conference

12. The Court arranged a conciliation conference for the sixth Modification Application under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 29 January 2025. I presided over the conciliation conference, which commenced on site. No submitters attended the on-site view.

13. Between 29 January and 24 March 2025, the matter was adjourned a number of times before an amended design was agreed and a s 34 agreement was reached by the parties.

14. The amendments agreed by the parties to the proposed development in the amended sixth Modification Application are outlined at par [18] below.

15. A signed s 34 agreement with Annexures A and B was filed with the amended plans with the Court on 25 March 2025. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites.

16. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to grant consent to the sixth Modification Application.

17. 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.

18. 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 written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Prerequisites

Substantially the Same Development

19. Pursuant to s 4.55(2) of the EPA Act, a consent authority may modify a development 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.

20. In relation to s 4.55(2)(a) being substantially the same development, the parties advise that:

21. The proposed development (the sixth Modification Application - DA 133/2003/F as amended) is substantially the same development as the development for which consent was originally granted in the original DA, and before that consent was modified;

22. The proposed development (the sixth Modification Application - DA 133/2003/F as amended) will maintain key quantitative elements of the development in the original DA;

23. The proposed development will continue to provide one apartment building containing 48 units with 6 apartments per level located around a central core. Consistent with the original DA, there are 4 corner apartments on each level that are naturally cross ventilated with openings in different directions. The number of storeys remains at eight residential storeys. The footprint is generally consistent with the Original DA. A comparative overlay of the building envelope in plan and elevation compared with the original DA was prepared to demonstrate the consistency. The removal of the swimming pool is consistent with the original DA, which did not contain a swimming pool;

24. Compared with the original DA, the height of the building will increase slightly but will not result in a development vastly dissimilar than that originally approved. The change to the roof form compared with the original DA increases the overall height by 600mm. The increase in height has occurred progressively to enable the building to achieve sufficient floor to ceiling heights that were not a requirement at the time of the original DA. When considering the development as a whole, there is no transformation of the overall built form. The footprint and general envelope are consistent with that originally approved. The essence of the approved development in the original DA remains and the minor increases in building height and floor space ratio (FSR) will not result in a radical transformation of the consent;

25. In qualitative terms, the modifications in the proposed development are substantially the same as the original DA. The proposed modifications maintain key elements of the approved development which includes a residential apartment building above basement parking with ground level communal open space. Retention of the overall architectural design of the building which incorporates the curvilinear form of the building resulting from the floor plates and curved balconies. Large balconies are retained which wrap around the majority of the frontage to each apartment accessed directly off the living area. The appearance and architectural design of the building remains. Notwithstanding the minor amendments to openings, the overall architectural character of the development will not be modified. The improvements to the unit layouts and ground level changes do not change the fundamental nature of the development and have been accommodated within the approved building envelope; and

26. The proposed development will not change the nature or intensity of the development in the original DA, nor will it change the relationship with surrounding developments. The modifications will maintain the character of the original DA. Although there is a slight change in the height and FSR, the proposed development is consistent with the original DA as a whole. The bulk and scale is also consistent with the original DA

Owner’s consent

21. The Respondent advises that the owners of the land have consented to the lodgement of the sixth Modification Application.

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

22. The parties advise that the sixth Modification Application was notified in accordance with s 4.55(2)(c) and no submissions were received.

Conditions

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

State Environmental Planning Policies

24. The parties advised that a number of State Environmental Planning Policies apply to the site, as follows:

25. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP):

(a) The proposed development remains consistent with the provisions of Ch 2 of the Biodiversity SEPP, as it does not propose to remove any additional native trees.

2. State Environmental Planning Policy (Housing) 2021 (the Housing SEPP):

(a) The proposed development has been assessed against the design principles and design criteria of the Housing SEPP and Apartment Design Guide. The proposed development improves the amenity of the development by increasing communal open space, deep soil landscaping and floor to floor heights.

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

(a) An updated BASIX assessment was carried out on 10 July 2024 in relation to the amended plans for the sixth modification meeting the requirements of the BASIX SEPP.

4. State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP):

(a) Chapter 2 Coastal Management of the Resilience SEPP applies to the site. The proposed development is not contrary to these provisions; and (b) In relation to s 4.6 of the Resilience SEPP, consent has been granted under the original DA for the residential use of the site. The site continues to be suitable for its intended residential use.

25. The parties confirm that the original development consent has been previously assessed as complying with the requirements of these policies.

Central Coast Local Environmental Plan 2022

26. The Central Coast Local Environmental Plan 2022 (the LEP) applies to the site and to the proposed development. Under the LEP provisions:

27. The site is zoned R3 – Medium Density Residential pursuant to cl 2.2 of the LEP;

28. The proposed development is permitted with consent in the R3 zone; and

29. I am satisfied that the proposed modification of the screening of the Level 2 balcony screening is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

30. Clause 4.3 of the LEP provides that a maximum height of 12 metres applies to the site. The original DA was approved with a height in excess of the current development standard. The sixth Modification Application seeks a reduction in the overall height compared with the current approval under DA133/2002/D. A submission in accordance with cl 4.6 of the LEP to vary the height is not required for a modification application.

31. Clause 4.4 of the LEP provides that the maximum FSR of 1.5:1 applies to the site. The original DA was approved with a FSR in excess of the current development standard. The sixth Modification Application seeks a minor increase in the overall gross floor area compared with the current approval under DA133/2002/D. The parties advise that the increase is negligible and has no adverse impacts on the amenity of the proposed development or the surrounding context. A submission in accordance with cl 4.6 of the LEP to vary the FSR is not required for a modification application.

Central Coast Development Control Plan 2022

29. The parties advise that the original DA was approved under Wyong Development Control Plan 2005. The Central Coast Development Control Plan (2022) is now in force. The parties consider that the proposed development maintains general consistency with the approved setbacks and building footprint.

Consideration of matters under s 4.15(1) of the EPA Act

30. In determining an application for modification of a consent, a consent authority must take into consideration matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the application.

31. The EPA Act requires the assessment of modification applications against the relevant matters (‘matters for consideration’) set out in s 4.15(1) of the EP&A Act.

32. The parties advise that the Court can be satisfied that the proposed development in the sixth Modification Application as amended is suitable for approval, when assessed against the relevant ‘matters for consideration’ in s 4.15(1) of the EPA Act.

Conclusion

33. Having considered the advice of the parties provided above at [19]-[32], I am satisfied that:

34. the Applicant’s amended sixth Modification Application can be approved having regard to the matters in subs 4.15(1)(b)-(e) of the EPA Act;

35. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.55(2) of the EPA Act have been satisfied;

36. approval of the proposed development is in the public interest.

37. 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.

38. 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.

Notes

36. The Court notes:

37. that Central Coast Council, as the relevant consent authority, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to Modification Application DA/133/2003/F made on 24 March 2025 to rely on the documents specified below:

(a) Architectural Drawings by Drew Dickson Architects;

| Drawing | Rev | Title | | A-0001 | P4 | Drawing List & Development Summary | | A-0010 | P3 | Site Plan | | A-0020 | 1 | Survey Plan | | A-0030 | 1 | Demolition Plan | | A-1000 | P4 | Basement 2 Floor Plan | | A-1001 | P4 | Basement 1 Floor Plan | | A-1002 | P3 | Level 01 (GF) Floor Plan | | A-1004 | P3 | Level 02 Floor Plan | | A-1005 | P3 | Level 03 Floor Plan | | A-1006 | P3 | Level 04 Floor Plan | | A-1007 | P3 | Level 05 Floor Plan | | A-1008 | P3 | Level 06 Floor Plan | | A-1009 | P3 | Level 07 Floor Plan | | A-1010 | P3 | Level 08 Floor Plan | | A-1011 | P3 | Level 09 Floor Plan | | A-1012 | P3 | Roof Plan | | A-1200 | P3 | North Elevation | | A-1201 | P3 | East Elevation | | A-1202 | P3 | South Elevation | | A-1203 | P3 | West Elevation | | A-1301 | P3 | Section A | | A-9001 | P3 | GFA Schedule | | A-9005 | P2 | Street Elevations | | A-9006 | P2 | Materials & finishes | | A-9014 | P2 | Sun eye views | | A-9015 | P2 | Natural ventilation diagrams | | A-9016 | P2 | Solar Access | | A-9017 | P2 | Unit area schedule | | A-9100 | P2 | Building footprint comparison | | A-9101 | P2 | North elevation comparison | | A-9102 | P2 | East elevation comparison | | A-9103 | P2 | South elevation comparison | | A-9104 | P2 | West elevation comparison | | A-9105 | P2 | C.O.S and deep soil calculations | | A-9200 | P2 | Shadow diagram comparison – Winter Solstice – 09-00 | | A-9201 | P2 | Shadow diagram comparison – Winter Solstice – 12-00 | | A-9202 | P2 | Shadow diagram comparison – Winter Solstice – 15-00 | | A-9210 | P2 | View Analysis – Sheet 1 | | A-9211 | P2 | View Analysis – Sheet 2 |

where the Rev (revision) dates are as follows:

| Rev | Date | | 1 | 27 Oct 2022 | | P1 | 7 May 2024 | | P2 | 19 Dec 2024 | | P3 | 31 Jan 2025 | | P4 | 11 Feb 2025 |

(b) BASIX / NatHERS Certificates –

(i) BASIX Requirements Summary by Chapman Environmental Services; (ii) BASIX Certificate – Multi Dwelling by Max Brightwell, 10 July 2024 (1755091M), incl Schedule of BASIX Commitments; and (iii) NatHERS Certificate (Class 2 Summary) by Chapman Environmental Services Pty Ltd, 10 July 2024 (0009619650);

(c) Civil Engineering Plans for DA by C&M Consulting Engineers, 24 July 2024 (rev A); (d) Landscape plans by Conzept Landscape Architects, 31 January 2025 (rev K); (e) Stormwater Management Plan by C&M Consulting Engineers, July 2024 (rev C); (f) Traffic & Parking Assessment Report by CJP Consulting Engineers, 3 July 2024; (g) Schedule of Amendments (to architectural drawings) by LJB Urban Planning, 20 July 2024; (h) Addendum to Statement of Environmental Effects by LJB Urban Planning, 19 June 2024; (i) Owners’ Consent letter from Afif Chehab, Kieran Yahya Chehab and Stephen Amir Chehab, 12 July 2024; (j) Owners’ letter to Registrar, Land and Environment Court of NSW (LEC) from Afif Chehab, Kieran Yahya Chehab and Stephen Amir Chehab, 12 July 2024; (k) Applicant’s letter to Registrar, LEC from Afif Chehab, Kieran Yahya Chehab and Stephen Amir Chehab, 24 July 2024; (l) Arboricultural Impact Assessment report by Season Tree Consulting, April 2023; (m) Geotechnical Desktop Study report by JC Geotechnics, 5 May 2023; (n) Geotechnical Investigation report by JC Geotechnics, 30 August 2023 (replacing June 2023 version); (o) Dewatering Management Plan by JC Geotechnics, 5 September 2023; (p) Schedule of Amendments to Architectural Drawings / Plans by LJB Urban Planning, 31 January 2025; (q) Design Verification Statement of Drew Dickson Architects, 19 December 2024; (r) Letter re rock anchors from JV Geotechnics, 20 December 2024; (s) Letter re landscape contentions from Conzept Landscape Architects, 14 January 2025; (t) Amended Waste Management Plan by Dickens Solutions, (17) January 2025; and (u) Swept Path Assessment – Loading Bay, 10.5m Waste Truck Entry and Exit Path by CJP Consulting Engineers, 10 February 2025.

2. Central Coast Council consented to the Applicant’s Notice of Motion filed with the Court on 23 Aug 2024, seeking leave to rely on amended documents, which the Court granted on 5 September 2024.

Orders

37. The Court orders that:

38. The appeal is upheld.

39. Pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979, the application to modify development consent numbered DA/133/2003/F (as modified) for the demolition of an existing residential flat building and construction of a new residential flat building comprising 48 residential units at Lot C DP 343781, Lot E DP 403890, Lot 2 DP 205929 and Lot 11 DP 502613, known as 2a, 2, 4, and 6 Bayview Avenue, The Entrance, NSW 2261, is approved.

40. Development Consent No. DA/133/2003/F is modified in the terms in Annexure A.

41. Development Consent No. DA/133/2003/F as modified by the Court is Annexure B.

G Kullen

Acting Commissioner of the Court

Annexure A (213 KB, pdf)

Annexure B (395 KB, pdf)

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