The Trustee for G & J Thitchener Family Trust v Central Coast Council

Legislation Cited: Biodiversity Conservation Act 2016, ss 6.12, 6.21, 6.3A, 7.13, 7.16, 7.2, 7.4, 7.7
Biodiversity Conservation Amendment (Biodiversity Offsets Scheme) Act 2024
Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 8.7, 10.3
Land and Environment Court Act 1979, s 34
Rural Fires Act 1997, s 100B
Water Management Act 2000, s 91
Biodiversity Conservation Regulation 2017, ss 7.1, 7.3
Central Coast Local Environmental Plan 2022, cll 2.6, 4.1, 4.1A, 4.1D, 5.21, 7.1, 7.9
Environmental Planning and Assessment Regulation 2021, ss 3, 27, 38
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021 ss 2.143, 2.46
Wyong Development Control Plan 2013, s 4.15
Wyong Local Environmental Plan 2013

Cases Cited: Butler Street Community Network Inc v Northern Regional Planning Panel [2017] NSWLEC 51

Category: Principal judgment

Parties: The Trustee for the G & J Thitchener Family Trust (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
D Gunter, solicitor (Applicant)
K Mortimer, solicitor (Respondent)
Solicitors:
Sparke Helmore Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/0088313

Publication restriction: No

JUDGMENT

1. COMMISSIONER: These proceedings relate to an appeal to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of Development Application DA/463/2022. The development application seeks consent for the consolidation of two existing lots and simultaneous re-division into two new lots, change of use of two existing dwellings to a dual occupancy (detached) and the construction of a new dwelling house. The development is proposed at 44 and 46 Hillside Drive, Glenning Valley (Lot 191 DP 733469 and Lot 12 DP 1201979).

2. 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 9 September 2024. Following the conciliation conference, the Applicant made amendments to their development application responsive to the Respondent’s contentions, however the conciliation was ultimately terminated and the matter listed for hearing.

3. The Court arranged a further conciliation conference between the parties, which was held on 22 April 2024 and at which I presided. Prior to the conciliation, the parties had without prejudice discussions which resulted in amendments to the proposed development, in particular to the proposed access to the subdivision. At the conciliation conference, Council confirmed that the development application, as amended, resolved Council’s legislative and merit concerns with the development. As a result, the parties have reached agreement. That agreement is for the grant of the application, as amended, subject to conditions.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make 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:

5. As the development application was lodged after 1 March 2022, Sch 6, s 3 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021) applies. The development application was lodged by the Applicant with the consent of the owners of the land.

6. The development application was notified between 6 May and 3 June 2022. One submission was received. That submission raised concerns with the potential for increased bushfire threat, the extent of vegetation clearing and the potential for an increase in dwelling numbers. 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.

7. As required by s 27 of the EPA Regulation 2021 the development application is accompanied by a valid BASIX certificate prepared by Matt Thitchener which outlines measures proposed in the development to meet relevant energy and water efficiency targets. The embodied energy report forms part of the online BASIX tool and is covered by the BASIX Certificate. The parties agree, and I accept, that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified.

8. Subdivision 1 ‘Electricity transmission or distribution networks’ of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies to the development application. The parties agree, and I accept, that the new electricity cable connection to the new dwelling can be carried out as exempt development pursuant to s 2.46(1)(c)(ii) of SEPP TI. Consent is not granted to these works: Butler Street Community Network Inc v Northern Region**al Planning Panel [2017] NSWLEC 51.

9. Pursuant to s 2.143 ‘Telecommunications facility’ of SEPP TI the telecommunications cables proposed in the new access driveway are permitted with development consent. Consent is to be granted to these works in the agreed orders.

10. Pursuant to section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the consent authority must not grant consent to development unless it has considered whether the land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. The development application is accompanied by a Preliminary Site Investigation (PSI) report prepared by Douglas Partners Pty Ltd dated 1 August 2024.

11. The PSI recommends that:

(a) further investigation along a portion of the access track, east of the culvert as identified. It is anticipated that the further investigation would involve field screening for the presence of ACM; (b) Hazardous building material survey of existing buildings prior to demolition (if demolition is proposed) followed by clearance from an occupational hygienist upon removal of the identified hazardous materials, and then after complete demolition of the structures; and (c) Implementation of an unexpected finds protocol for remaining portions of the site, to establish a strategy / management procedure to be followed during civil and construction works, should unexpected finds of contamination be uncovered.

8. These matters are addressed by way of conditions 2.2, 4.2 and 5.14 of the annexed conditions of consent. The requirements of cl 4.6 of SEPP RH are satisfied.
9. Pursuant to section 4.46 of the EPA Act, the development application is integrated development because the development:

(a) Requires authorisation from the Rural Fire Sevice pursuant to section 100B of the Rural Fires Act 1997 as the land is identified on the Respondent's Bushfire Prone Land Map certified under s 10.3 of the EPA Act. (b) Requires a controlled activity approval to carry out the works proposed within Quondong Gully (waterfront land) under s 91 of the Water Management Act 2000.

10. The development application was referred to the integrated authorities who have both issued general terms of approval. Those conditions are incorporated in the annexed conditions.
11. Quondong Gully, which traverses the land, is identified on the Biodiversity Values Map published under s 7.3(1) of the Biodiversity Conservation Regulation 2017 (BC Regulation).
12. The development application proposes physical works within Quondong Gully which will involve clearing of native vegetation on the part of the land mapped on the Biodiversity Values Map. The development application therefore proposes clearing of native vegetation which exceeds the biodiversity offset scheme under s 7.4 of the Biodiversity Conservation Act 2016 (BC Act) and s 7.1 of the BC Regulation. The development application concludes that the development likely to significantly affect threatened species under s 7.2 of the BC Act and must be accompanied by a biodiversity development assessment report (BDAR) under s 7.7(2) of the BC Act. The development application is accompanied by a BDAR. The parties agree, and I accept, that the Court can be satisfied that the BDAR is a biodiversity development assessment report prepared in accordance with s 6.12 of the BC Act. Consequently, the Court can be satisfied that the development application satisfies the precondition in s 7.7(2) of the BC Act.
13. The recommendations of the BDAR, being a biodiversity management plan, a construction environmental management plan and finally the retirement of credits are implemented through the annexed conditions.
14. On 7 March 2025, the BC Act was amended by the Biodiversity Conservation Amendment (Biodiversity Offsets Scheme) Act 2024. Of relevance to these proceedings, new ss 6.3A and 6.2(h1) were inserted to the BC Act. The BDAR demonstrates that the avoidance hierarchy has been addressed by strategically locating the development within existing clearings which has limited the clearing of native vegetation, and by further design amendments to the location of the proposed dwelling the development avoids the native vegetation with the highest biodiversity values. The Respondent’s ecology expert considers that the development application includes reasonable measures to avoid the impacts of the action on biodiversity values, as required by new s 6.3A of the BC Act. I accept that expert view.
15. The BDAR has considered the likely impacts of the development on biodiversity values under s 7.13(2), the proposed conditions of consent address the requirements of s 7.13(3) of the BC Act. For these reasons, and the preceding points, the parties agree, and I accept, that the Court can be satisfied that the proposed development is not likely have serious and irreversible impacts on biodiversity values as required to be considered under s 7.16(2) of the BC Act.
16. The Wyong Local Environmental Plan 2013 (LEP 2013), whilst now repealed by Central Coast Local Environmental Plan 2022, continues to apply to the development application.
17. Subdivision is permitted with development consent under cl 2.6 of LEP 2013. The land is zoned part C2 Environmental Conservation and part C4 Environmental Living. The dual occupancy (detached) and the dwelling house are located on the part of the land zoned C4 Environmental Living. Development for the purposes of a dwelling house and dual occupancy (detached) are permissible with consent in the C4 zone. Development for the purpose of roads is permitted in both the C2 Environmental Conservation and C4 Environmental Living zones. In determining the development application, I have given consideration to the objectives of both the C2 Environmental Conservation and part C4 Environmental Living zones.
18. The Lot Size Map adopted under cl 4.1(2) of LEP 2013 has prescribed the following minimum subdivision lot sizes relevant to the development application:

(a) a 40ha minimum subdivision lot size for the part of the Land zoned C2 Environmental Conservation; and (b) a 2ha minimum subdivision lot size for the part of the Land zoned C4 Environmental Living.

19. The proposed lots are both greater than 2ha, with proposed Lot 1 having an area of 2.72ha, and proposed Lot 2 having an area of 5.38ha. proposed Lot 1 is entirely within the portion of the site zoned C4 Environmental Living and is compliant with the subdivision development standard.
20. Lot 2 contains 1.4ha of C2 Environmental Conservation zoned land which does not comply with the 40ha development standard at cl 4.1(2) of LEP 2013. Therefore, the development application relies on the exception at cl 4.1A(3) of LEP 2013 which permits development consent to be granted for the subdivision of land with certain split zones to create lots smaller than the applicable minimum subdivision lot size.
21. I am satisfied that cl 4.1A of LEP 2013 applies to the development application and the proposed subdivision meets the requirements of cl 4.1A(2)-(4) for the reasons provided in section 4.1.4 of the Statement of Environmental Effects. The requirements of cl 4.1A of LEP 2013 are met.
22. Pursuant to cl 4.1D of LEP 2013, the minimum lot size for a dual occupancy (detached) is 700m2. The occupancy (detached) will be located on Lot 1 which is 2.72ha and therefore greater than the prescribed minimum lot size for a dual occupancy (detached).
23. The Flood Planning Map identifies that part of the land is within the flood planning area, therefore cl 5.21 of applies. The development application is accompanied by a Flood Impact Assessment report. That report concludes that the proposed development:

(a) is compatible with the flood function and behaviour on the Land (cl 5.21(2(a)); (b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other properties (cl 5.21(2(b)); (c) will not adversely affect the safe occupation and efficient evacuation of people in a flood (cl 5.21(2(c)); (d) incorporates appropriate measures to manage risk to life in a flood (cl 5.21(2(d)); and (e) will not adversely affect the environment in the ways identified in (cl 5.21(2(e)) of LEP 2013.

24. The far eastern portion of the site is identified as being classed as class 5 acid sulfate soils. In accordance with cl 7.1(2) of LEP 2013, development involving works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum (AHD) and by which the watertable is likely to be lowered below 1 metre AHD on adjacent Class 1, 2, 3 or 4 land requires development consent. There are no physical works proposed in this development application in the portion of the site mapped as Class 5, therefore no acid sulfate soils management plan is required pursuant to cl 7.1 of LEP 2013.

25. The existing dwellings on the land which are the subject of the change of use to a dual occupancy (detached) have the required essential services identified in cl 7.9 of LEP 2013. In relation to the new dwelling the development application is accompanied by detailed engineering plans for the new dwelling which show that it will be serviced by a new 4m wide all weather vehicular access road which will contain electricity services (for which development consent will not be granted – see the discussion at [4]) and stormwater discharge will be provided via an onsite stormwater management system. The Geotechnical Investigation of On-Site Effluent Disposal Assessment prepared by Douglas Partners dated May 2022 confirms there is sufficient area available for the new dwelling to be serviced by an onsite sewage management system.

26. Pursuant to cl 7.9 of LEP 2013, I am satisfied that the services listed that are essential for the development are available or that adequate arrangements have been made to make them available when required.

27. The Wyong Development Control Plan 2013 (DCP 2013) applies to the site. The statement of environmental impacts filed with the application details the compliance of the proposed development with 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.

28. 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)).

29. 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.

30. The orders grant leave to the Applicant to file the following amended material, amending the development application: s 38(1) of the EPA Regulation 2021.

| Plan/Document | Title/Revision Number | Date | Author | | Plan of Proposed Subdivision | Revision C 190714-DA-001 | 16 September 2024 | ADW Johnson Pty Ltd | | Architectural plans | DA01 – Site Plan DA02 – Ground Floor Plan DA03 - 1st Floor Plan DA04 – Sections DA05 – Elevations DA06 – Elevations DA07 – BASIX Commitments DA08 – Subsoil Drainage Plan DA09 – Retaining Typical Sections DA10 – 3D Views | 17 October 2024 | Matt Thitchener Architect | | Landscape Plan | Revision B | 24 October 2017 (2024) | Holland Landscapes | | Concept Engineering Plans | 190714-CENG-001 to CEN-009 (inclusive) Revision E | 27 September 2024 | ADW Johnson Pty Ltd | | Detail and Contour Survey Plan | Revision C 190714-DET-001 | 27 September 2024 | ADW Johnson Pty Ltd | | Plan of Dwelling Constraints | Revision C 190714-PSK-003 | 15 October 2024 | ADW Johnson | | Streamlined Biodiversity Development Assessment Report | Revision 3 | 9 December 2024 | AEP | | Biodiversity Management Plan | Revision 2 | 8 November 2024 | AEP | | Arborist Impact Assessment | Revision 2 | 27 September 2024 | AEP | | Flood Impact Assessment Report | Revision B | 26 August 2024 | ADW Johnson Pty Ltd | | Report on Preliminary Site Investigation (Contamination) | Revision O | 1 August 2024 | Douglas Partners Pty Ltd |

8. The Court orders that:

9. The Applicant is granted leave to file the further and amended material specified in [7].

10. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment to DA/463/2022 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $19,500 within 120 days from the date of this order.

11. The appeal is upheld.

12. Development application DA/463/2022 for the consolidation of two existing lots and simultaneous redivision into two new lots, change of use of two existing dwellings to a dual occupancy (detached) and the construction of a new dwelling house at 44 and 46 Hillside Drive, Glenning Valley (Lot 191 DP 733469 and Lot 12 DP 1201979), is determined by grant of consent, subject to the conditions set out in Annexure A to this agreement.

D Dickson

Commissioner of the Court

**********

Amended Annexure A.1.49 MB.pdf

Amendments

09 May 2025

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the slip rule), a corrected version of the conditions of consent are uploaded as “Amended Annexure A".