Rzepecki v Central Coast Council

File Number(s): 2025/113281

Publication restriction: Nil

Judgment

COMMISSIONER:

Introduction

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicant against the respondent’s refusal of the applicant’s development application DA/33/2023 (Development Application). The Development Application sought consent for the construction of an attached dual occupancy, stormwater infrastructure, augmentation of existing sewer connections, fencing, landscaping, construction of a new driveway cross over and Torrens title subdivision of one lot into two lots on land identified as Lot 128 in Deposited Plan 18958, known as 53 Manly Parade, The Entrance North (Subject Land).

2. The appeal was subject to conciliation on 8 September 2025, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act). As agreement was not reached, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(ii) of the LEC Act.

3. The Court inspected the Subject Land with the parties and also viewed the front of 37 Bondi Road, The Entrance North, at the (unopposed) request of the applicant.

4. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) LEC Act.

Background

5. The Subject Land is owned by the applicants. Both provided their owners consent to the Development Application as lodged (Class 1 Application (Ex A) tab 15). Notably, a contention regarding works offsite has been resolved through the application no longer proposing the relocation of the sewer main that bisects the Subject Land.

6. The Subject Land is rectangular in shape with a total area of 580.6m2 (Statement of Facts and Contentions filed 14 May 2025 (SOFAC) (Ex 5) at par 2.3).

7. The Subject Land is vacant with no structures.

8. The Subject Land is zoned R1 General Residential under the Central Coast Local Environmental Plan 2022 (CCLEP).

9. The Development Application was lodged with the respondent on 8 February 2023 and relevantly sought consent for a dual occupancy where each dwelling would be on its own lot and comprise two storeys with three bedrooms, garage and lift access. Following the proposed subdivision, each lot would comprise 290.3m2.

10. The Development Application was notified from 17 February to 3 March 2023. Two submissions were received primarily raising concerns relating to privacy and overlooking.

11. On 16 January 2025, the Development Application was refused.

12. On 24 March 2025, the proceedings were commenced, being within the appeal period prescribed by s 8.10 of the EPA Act.

13. On 14 May 2025, the respondent filed its SOFAC.

14. At the commencement of the hearing, the applicant sought, and was granted, leave to amend the Development Application (Amended Development Application) by relying on amended plans contained in Ex B. The amendments primarily include:

15. updated Architectural Plans prepared by BACAD Design dated 11 June 2025 (Updated Architectural Plans) which demonstrate, amongst other things, a compliant floor space ratio (FSR) under the CCLEP;

16. updated Landscaping Plans prepared by Brian Filby dated August 2025 (Updated Landscaping Plans);

17. Flood Response Plan prepared by Hoolihan Partners Consulting Engineers dated 21 August (2025) (Flood Response Plan);

18. Engineering Plans prepared by Hoolihan Partners Consulting Engineers dated 21 August 2025 (Engineering Plans);

19. Detailed survey plans prepared by Bannister and Hunter dated 30 May 2025 (Survey Plans); and

20. updated BASIX and NatHERS certificates for proposed Dwelling 1 and Dwelling 2.

Issues

15. The issues remaining in dispute at the hearing were significantly narrowed and can be distilled as whether the Amended Development Application should be approved having regard to flooding considerations, including cl 5.21 of the CCLEP and the public interest under s 4.15(1)(e) of the EPA Act.

16. For the reasons that follow, I have determined to grant consent to the Amended Development Application subject to the conditions at Annexure A.

Expert evidence

17. The applicant relied on the expert evidence of Ms Lorelle Fitzpatrick (town planning), Mr Darren Hoolihan (flooding) and Mr Peter Horton (coastal hazards).

18. The respondent relied on the expert evidence of Ms Rebecca Englund (town planning), Mr Andrew Dewar (flooding) and Dr David Wainwright (coastal hazards).

19. The following joint reports were filed and subsequently tendered at the hearing:

20. Joint Coastal Engineering Report prepared by Mr Horton and Dr Wainwright filed 2 September 2025 (Joint Coastal Engineering Report) (Ex 2);

21. Joint Flooding Report prepared by Mr Hoolihan and Mr Dewar filed 7 August 2025 (Joint Flooding Report) (Ex 3); and

22. Joint Town Planning Report prepared by Ms Fitzpatrick and Ms Englund filed 1 August 2025 (Joint Planning Report) (Ex 4).

The role of the Court on appeal

20. In hearing the appeal, the Court re-exercises the functions of the Council in determining whether consent should be granted to the proposed development (s 39 of the LEC Act and s 8.14(1) of the EPA Act).

21. Section 4.15(1) of the EPA Act relevantly sets out the matters that must be taken into consideration as are of relevance by a consent authority in determining a development application.

Legislative and planning framework

22. The Subject Land is located within the coastal zone as defined in s 5 of the Coastal Management Act 2016 (NSW) (CM Act). The Amended Development Application is supported by Coastal Engineering Advice prepared by Horton Coastal Engineering dated 5 January 2023 and I am satisfied that the proposed development appropriately considers coastal management objectives and does not increase unacceptable coastal hazard risks.

23. Chapter 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) applies to the Subject Land. There were no contentions raised in relation to the provisions of this Chapter other than general contentions in respect of coastal erosion and recession hazards. I accept that these contentions were resolved as a result of the Amended Development Application following the preparation of the Joint Coastal Hazards Report. I otherwise also rely on the analysis carried out in the Statement of Environmental Effects prepared by BACAD Design dated 2 December 2022 (SEE) (see pp 42 to 45) and am satisfied that all relevant provisions of Ch 2 of the RH SEPP have been considered and satisfied (see also Jurisdictional Statement provided by the applicant).

24. Section 4.6 of the RH SEPP also applies to the Subject Land. I accept that the proposal is suitable for the site pursuant to s 4.6 of the RH SEPP having regard to the Council’s Assessment Report (Ex 1, tab 6, p 285).

25. As set out above, the Subject Land is zoned R1 General Residential under the CCLEP. Dual occupancies are permitted with consent in the R1 zone. The objectives of the R1 zone to which I have had regard are extracted below:

• 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 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 unreasonable demands on services.

26. It is agreed, and I accept, that the Amended Development Application is compliant with all development standards in the CCLEP, including, height, FSR, and minimum lot size.

27. I accept the undisputed position of the applicant that the Subject Land does not present as having the potential of including acid sulfate soils and that an acid sulfate soils management plan is not required for this development for the purposes of cl 7.1 of the CCLEP (SEE, p 45). This is because the proposed development does not involve works more than 2m below the natural ground surface or by which the water table is likely to be lowered by more than 2m below the natural surface.

28. Having regard to the documents comprising the Amended Development Application, I am satisfied that all of the services that are essential for the development are available, or adequate arrangements have been made to make them available when required for the purpose of cl 7.6 of the CCLEP.

29. The single remaining contested issue at hearing concerned whether the Amended Development Application should be approved having regard to flooding matters. Clause 5.21 of the CCLEP relating to “flood planning”, is extracted below:

5.21 Flood planning

(1) The objectives of this clause are as follows—

(a) to minimise the flood risk to life and property associated with the use of land,

(b) to allow development on land that is compatible with the flood function and behaviour on the land, taking into account projected changes as a result of climate change,

(c) to avoid adverse or cumulative impacts on flood behaviour and the environment,

(d) to enable the safe occupation and efficient evacuation of people in the event of a flood.

(2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development—

(a) is compatible with the flood function and behaviour on the land, and

(b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

(c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

(d) incorporates appropriate measures to manage risk to life in the event of a flood, and

(e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

(3) In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters—

(a) the impact of the development on projected changes to flood behaviour as a result of climate change,

(b) the intended design and scale of buildings resulting from the development,

(c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood,

(d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion.

(4) A word or expression used in this clause has the same meaning as it has in the Considering Flooding in Land Use Planning Guideline unless it is otherwise defined in this clause.

(5) In this clause—

Considering Flooding in Land Use Planning Guideline means the Considering Flooding in Land Use Planning Guideline published on the Department’s website on 14 July 2021.

flood planning area has the same meaning as it has in the Flood Risk Management Manual.

Flood Risk Management Manual means the Flood Risk Management Manual, ISBN 978-1-923076-17-4, published by the NSW Government in June 2023.

30. “Flood planning area” (FPA) is relevantly defined in the Flood Risk Management Manual by reference to numerous acronyms and other defined terms. The relevant terms and their definitions and context are extracted below:

| Term | Shortened form | Definition | Context for use/additional information | | Annual exceedance probability | AEP | The chance of a flood of a given or larger size occurring in any one year, usually expressed as a percentage | AEP is generally the preferred terminology. ARI is the historical way of describing a flood event, for example, a 1% AEP flood has a 1% or 1 in 100 chance of being reached or exceeded in any given year | | Defined flood event | DFE | The flood event selected as a general standard for the management of flooding to development | Aims to reduce the frequency of flooding but does not remove all flood risk, for example, in selecting a 1% AEP flood as a DFE you are accepting that there is a 1 in 100 chance that a larger event will occur in any year. This risk is being built into the decision | | Flood planning area | FPA | The area of land below the FPL | The FPA is generally developed based on the FPL for typical residential development. Different types of development may have different FPLs applied within the FPA. In addition development controls will vary across the FPA due to varying flood constraints | | Flood planning level | FPL | The combination of the flood level from the DFE and freeboard selected for FRM purposes | Different FPLs may apply to different types of development Determining the FPL for typical residential development should generally start with a DFE of the 1% AEP flood plus an appropriate freeboard (typically 0.5 m). This assists in determining the FPA | | Flood risk management | FRM | The management of flood risk to communities | |

31. The parties disagree as to whether the proposal can be approved having regard to cl 5.21 of the WLEP which is considered in detail below.

32. In addition, there was a dispute about whether cl 5.22 of the CCLEP relating to “special flood considerations” applied to the proposal. Clause 5.22 of the CCLEP is extracted below:

5.22 Special flood considerations

(1) The objectives of this clause are as follows—

(a) to enable the safe occupation and evacuation of people subject to flooding,

(b) to ensure development on land is compatible with the land’s flood behaviour in the event of a flood,

(c) to avoid adverse or cumulative impacts on flood behaviour,

(d) to protect the operational capacity of emergency response facilities and critical infrastructure during flood events,

(e) to avoid adverse effects of hazardous development on the environment during flood events.

(2) This clause applies to—

(a) for sensitive and hazardous development—land between the flood planning area and the probable maximum flood, and

(b) for development that is not sensitive and hazardous development—land the consent authority considers to be land that, in the event of a flood, may—

(i) cause a particular risk to life, and

(ii) require the evacuation of people or other safety considerations.

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority has considered whether the development—

(a) will affect the safe occupation and efficient evacuation of people in the event of a flood, and

(b) incorporates appropriate measures to manage risk to life in the event of a flood, and

(c) will adversely affect the environment in the event of a flood.

(4) A word or expression used in this clause has the same meaning as it has in the Considering Flooding in Land Use Planning Guideline unless it is otherwise defined in this clause.

(5) In this clause—

Considering Flooding in Land Use Planning Guideline—see clause 5.21(5).

flood planning area—see clause 5.21(5).

Flood Risk Management Manual—see clause 5.21(5).

probable maximum flood has the same meaning as in the Flood Risk Management Manual.

sensitive and hazardous development means development for the following purposes—

(a) boarding houses,

(b) caravan parks,

(c) correctional centres,

(d) early education and care facilities,

(e) eco-tourist facilities,

(f) educational establishments,

(g) emergency services facilities,

(h) group homes,

(i) hazardous industries,

(j) hazardous storage establishments,

(k) hospitals,

(l) hostels,

(m) information and education facilities,

(n) respite day care centres,

(o) seniors housing,

(p) sewerage systems,

(q) tourist and visitor accommodation,

(r) water supply systems.

33. The Central Coast Development Control Plan 2022 (CCDCP) applies to the Subject Land.

Should the Amended Development Application be approved having regard to flooding considerations?

34. The central matter in dispute between the parties in this matter is whether the proposal is acceptable having regard to flooding matters. This necessarily involves consideration of cl 5.21 of the WLEP.

35. Clause 5.21(2) relevantly applies to “land the consent authority considers to be within the “flood planning area” (FPA). The parties’ flooding experts agree, and I accept that, the Subject Land is located within the relevant FPA as set by the Tuggerah Lakes Floodplain Risk Management Study and Plan dated November 2014 (2014 Flood Study).

36. It is helpful here to set out the Amended Development Application’s design and mitigation measures to address flooding issues, including:

37. The floor level of both dwellings will be at or above the flood planning level (which in this case, is generally equivalent to the Probable Maximum Flood (PMF));

38. The existence of a Flood Response Plan which relevantly provides that:

(a) the primary emergency management strategy is early evacuation where severe flooding is indicated and provides evacuation routes; (b) if evacuation cannot be achieved, as a last resort, shelter in place can occur to avoid going through flood waters; (c) preparation for sheltering in place in a worst case scenario, including the provision of nonperishable food items, bottled water, medications and other essential items to ensure household needs can be bet for up to a period of four day; and (d) the maintenance and use of a compostable/temporary toilet if sheltering in place due to the likely failure of the public sewer system in the event of significant flooding events.

3. Condition 1.1 of the Agreed Conditions (in the event that development consent is granted to the proposal) requires the development to be carried out in accordance with, amongst other documents, the Flood Response Plan.
4. Condition 6.14 of the Agreed Conditions (in the event that development consent is granted to the proposal) relevantly requires a positive covenant in favour of the council to be registered on the title of the lots requiring conditions 9.4, 9.5, 9.6 and 9.7 to be complied with at all times and state the terms of those conditions. Conditions 9.4 to 9.7 have been extracted below:

9.4 Any flood response plan (FRP) prepared for the development, including the initial FRP, subsequent revisions of that FRP, or subsequent replacement FRPs, shall not include any strategy which involves the use of pathways through the coastal dunes as a means of evacuation.

9.5 The FRP must be reviewed annually and updated when required by the property owner, including keeping records of how well the FRP processes operated during any flood emergency event.

9.6 The FRP must be audited at five-year intervals by a chartered engineer with Engineers Australia, or equivalent professional. The auditor must have flood emergency management as a key specialization. The auditor must review performance of the FRP over the preceding five-year period and update the FRP when required. The auditor must also consider the implications of any updated, publicly available flood behaviour information, or new flood studies. That considerations must include expected changes to flood behaviour arising from climate change and sea level rise as part of the audit, with the FRP updated when required.

9.7 The FRP, as updated, is to be complied with over the life of the development

Respondent’s position

37. The respondent submits that the Development Application must be refused because the Court would not be satisfied that the Development Application:

38. will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood for the purposes of cl 5.21(2)(c) of the CCLEP; and

39. incorporates appropriate measures to manage risk to life in the event of a flood for the purposes of cl 5.21(2)(d) of the CCLEP.

40. Further, the respondent submits that the proposed development does not “ensure the safe evacuation of people in the event of a flood”, being a matter required to be considered under cl 5.21(3)(c) of the CCLEP.

41. The respondent submits that the primary reason the development does not satisfy cl 5.21(2)(c) and (d) is because it is seeking to intensify the use of the Subject Land through a dual occupancy which is inappropriate in circumstances where the Subject Land is located within the FPA and having regard to its particular circumstances. The respondent relies on section 7.6.5 of the 2014 Flood Study which relevantly states:

7.6.5 Limit the Extent of Development

Future residential development in low lying areas could be restricted to the “lowest residential” zoning. Thus any development that will increase the present residential density would not be permitted. Thus dual occupancy, sub division or increasing the % site coverage (increasing the size of the building) would not be permitted., These controls could be further refined through a site specific DCP.

40. For completeness, it is noted that section 7.6.5 of the 2014 Flood Study is contained within a broader section 7.6 entitled “Mitigation/Adaptation Measures to Protect Future Developments”.

41. The respondent relies on the evidence of Mr Dewar that:

42. Although it is acknowledged that there would be a significant warning time prior to the Levee Wall getting overtopped and possible that evacuation messages would have been distributed by the SES/Council prior to the levee overtopping, there are numerous historical cases in Australia where occupants do not comply with evacuation orders until it is too late. There is also the risk that evocation warnings won’t be receive by occupants. It is therefore necessary to consider the worst case scenario.

43. It is not safe for occupants to enter flood waters if they have failed to evacuate in time.

44. A dual occupancy results in two dwellings on the Subject Land as opposed to a single dwelling. A dual occupancy would likely result in an increased number of occupants and therefore an increased flood risk compared to a single occupancy.

45. Due to the extended time that occupants may have to shelter in place (potentially up to four days), it is not reasonable to allow a dual occupancy that will expose more occupants to this extended duration of sheltering in place. Further, the types of occupants may include holiday renters who have less flood awareness.

46. If occupants are sheltering in place, if there is a medical emergency at the property, emergency services would likely be required to transport people to hospital. This may add additional stress to emergency services during a flood event.

47. The respondent further submits that the Court must consider the precedent of approving a dual occupancy in this location stating, “even though the incremental adverse impact on efficient evacuation represented by this development may be small, it is legitimate to consider the impact of a series of similar developments that incrementally increase the population of The Entrance North” (Respondent’s Written Submissions (RWS) at par 88).

48. The respondent further submit in Court (although this was not pleaded in the SOFAC), that the matters listed for consideration in cl 5.22(3) of the CLEP are relevant to the Amended Development Application as the development is located on land that, in the event of a flood, may cause a particular risk to life and require the evacuation of people or other safety considerations. The basis for this submission was that the “particular risk to life” arises due to the proposed intensification of the land to accommodate a dual occupancy rather than a single dwelling. The respondent submits that for the same reasons articulated in respect of cl 5.21(2), the proposal should be refused having regard to the matters for consideration in cl 5.21(3) of the CCLEP.

Applicant’s position

44. The applicant relies on the evidence of Mr Hoolihan that:

45. the floor level of the proposed development is above the flood planning level and PMF;

46. the evacuation route would be available early in the flood event and remain trafficable (ie flood free) for sufficient time to evacuate people which could be in excess of 24 hours;

47. the effective warning time is longer than six hours;

48. a dual occupancy could in fact reduce the number of occupants at the site compared to a large single dwelling;

49. the failure of the sewerage system is not specific to the development and effects all residential sites within The Entrance North; and

50. the Flood Response Plan is reasonable in the circumstances to educate occupants about the flood risk and what to do in the event of a flood.

51. The applicant submits that the 2014 Flood Study cannot restrict the types of permissible development in the R1 zone as dictated by the CCLEP. Dual occupancies are permissible with consent and need to be evaluated on their merits. Further, the applicant submits that the Council itself has departed from the 2014 Flood Study by not taking steps to upgrade or fix the sewer issues affecting The Entrance North as is recommended in the 2014 Flood Study. Any flooding issues affecting the Subject Land or The Entrance North generally, including the potential need to rely on emergency services in the event of a flooding event, do not arise as a consequence of the dual occupancy development proposed, and the application proposes a reasonable and appropriate development having regard to flooding considerations.

52. With respect to cl 5.22 of the CCLEP, the applicant submits that compliance with cl 5.22 was never pleaded by the respondent, does not apply as no particular risk to life is posed by the development, and in any event, the matters for consideration in cl 5.22(3) have already been addressed through consideration of cl 5.21 of the CCLEP.

Consideration

47. Having regard to the evidence and submissions before me in this matter, I am satisfied that the Amended Development Application should be approved (subject to the Agreed Conditions) having regard to flooding matters and the public interest.

48. I have placed material weight on the fact that:

49. Mr Dewar accepts that the Flood Response Plan is reasonable and the best that could be done in relation to this land. His only concern is with the intensification of occupants by way of dual occupancy.

50. The 2014 Flood Study cannot override the permissibility of dual occupancies as per the CCLEP.

51. There is no cogent evidence before me that a dual occupancy will actually increase the number of people occupying the Subject Land, as opposed to a larger home which could conceivably accommodate a similar (or larger) number of people.

52. I accept that the design of the proposed dual occupancy dwellings (including their floor level being located above the flood planning level/PMF), in conjunction with the Flood Response Plan and measures to require compliance with that Plan (including by way of covenant and condition of consent) are reasonable and acceptable in the circumstances, having regard to the fact that dual occupancies are permissible with consent in the R1 zone.

53. I note the respondent’s criticisms of the proposed development, including a purported increased burden on emergency services and the potential lack of flood awareness of potential holiday renters, are issues that equally face single dwelling houses and all residential development located in The Entrance North. In my view, these are not valid reasons to refuse development consent in this case in circumstances where I accept that the design of the building, in addition to the mitigation measures in the Flood Response Plan, are an acceptable and reasonable response to the flooding matters affecting the Subject Land.

54. In relation to precedent, it is a matter for the respondent whether it seeks to amend the CCLEP to prohibit dual occupancies in The Entrance North. However, at the time of hearing, dual occupancies are permissible with consent in the R1 zone and the proposal cannot be dismissed out of hand and must be considered on its merits. Having regard to those merits, I am satisfied that development consent should be granted to the Amended Development Application.

55. With respect to cl 5.21(3) of the CCLEP, and in particular, cl 5.21(3)(c), it is clear that the Amended Development Application incorporates measures to minimise the risk to life through both the design and Flood Response Plan. With respect to the requirement to consider whether the development “ensure(s) the safe evacuation of people in the event of a flood”, I note that the development proposes early evacuation as its primary flood response strategy as outlined in the Flood Response Plan. The applicant has taken reasonable steps to ensure that compliance with the Flood Response Plan is achieved by way of conditions of consent and a requirement to lodge a covenant on the tile of the land (see [36] above). I have therefore considered cl 5.21(3)(c) of the CCLEP and am of the view that the Amended Development Application can be approved having regard to cl 5.21(3)(c) of the CCLEP.

56. I am also satisfied that the development:

57. is compatible with the flood function and behaviour of the land;

58. will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties; and

59. will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses,

60. having regard to the Floodplain Development Performance Report prepared by Hoolihan Partners dated 20 December 2022 (Floodplain Report) (Ex A, tab 6). I further note that compliance with the above matters for satisfaction in cl 5.21(2) of the CCLEP was not disputed by the respondent.

61. I am also satisfied that the remaining matters for consideration under cl 5.21(3) of the CCLEP have been adequately addressed in the Floodplain Report and Flood Response Plan and there is no impediment to the grant of development consent having regard to those matters.

62. I do not accept that cl 5.22 of the CLEP applies to the proposed development as I am not satisfied that the proposed development poses a particular risk to life in circumstances where the risks of a dual occupancy have not been established on the facts to be any greater than the risks of a large single dwelling (which the respondent would not oppose in principle) and having regard to my findings regarding the appropriateness of the design of the development and proposed mitigation measures. Finally, as argued by the applicant, the matters for consideration under cl 5.22(3) of the CCLEP have been adequately considered by reference to the matters for satisfaction and consideration under cl 5.21 of the CCLEP in any event.

Conditions

56. The parties have provided Agreed Conditions in the event that development consent is granted to the Amended Development Application. I am satisfied that the Amended Development Application should be approved subject to the Agreed Conditions.

Submissions

57. As set out at [10], the Development Application was notified from 17 February to 3 March 2023. Two submissions were received primarily raising concerns relating to privacy, overshadowing and damage to property during construction.

58. In addition, the Court heard from one resident at the site view associated with the hearing. This resident raised concerns regarding privacy, implications of works to the sewer, parking and flooding issues.

59. I confirm that the written and oral submissions received have been taken into consideration and addressed by the Amended Development Application.

Conclusion

60. No merit or jurisdictional issues other than those considered above were raised by the respondent in the hearing.

61. I rely on the documents comprising the Amended Development Application and the views of the relevant experts in the Joint Planning Report, Joint Coastal Hazards Report and Joint Flooding Report. I also rely on the fact that contentions relating to owners consent, unacceptable risk to life from coastal erosion, FSR exceedance, inadequate amenity, inconsistency with desired character and loss of on street parking have all been resolved by the Amended Development Application subject to the Agreed Conditions.

62. Ultimately, having regard to the facts, evidence and submissions in this case, I am satisfied that the Amended Development Application should be approved subject to the conditions in Annexure A, having regard to the matters listed for consideration in s 4.15 of the EPA Act.

Orders

63. The Court orders that:

64. The appeal is upheld.

65. Development consent is granted to Development Application DA/33/2023, as amended, for the construction of an attached dual occupancy building and Torrens title subdivision, on land legally identified as Lot 128 in Deposited Plan 18958, known as 53 Manly Parade, The Entrance North, subject to the conditions in Annexure A.

66. The exhibits are returned except for B, 2, 3 and 4.

N Targett

Commissioner of the Court

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Annexure A (231 KB, pdf)