The Trustee for Storage King West Gosford Trust v Central Coast Council

Category: Principal judgment

Parties: Storage King West Gosford Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
D Tyrrell (Solicitor) (Applicant)
M Ball (Solicitor) (Respondent)
Solicitors:
Tyrrell’s Planning Law (Applicant)
MBM Legal + Conveyancing (Respondent)

File Number(s): 2024/260105

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Central Coast Council of Development Application No DA/30/2024 for the demolition of an existing building and construction of a new industrial building for the purposes of a storage premises, ancillary earthworks, servicing, car parking, tree removal and landscape treatment at Lot 13 DP 245530 commonly known as 13 Tathra Street, West Gosford.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference which I presided over was held on 10 February, 10 March and 24 March 2025.

Outcome

3. At the conciliation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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 one that the Court could have made in the proper exercise of its functions.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Statement together with the documents referred to therein, the Amended Class 1 Application and its attachments, the reports filed in the proceedings, and the documents that are referred to in condition 1.1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. The Council as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). The plans and documents comprising the amended application were submitted to the Court on 28 March 2025 and are listed under condition 1.1 of the conditions of consent at Annexure A.

Jurisdictional matters

6. As the presiding Commissioner I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent, is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met for the following reasons:

Central Coast Local Environmental Plan 2022

7. The development works are for the purposes of an industrial development which is a permissible use in E4 General Industrial zone in which the site is located pursuant to Central Coast Local Environmental Plan 2022 (CCLEP).

8. The consistency of the proposal with the objectives of the E4 General Industrial zone has been considered as required by cl 2.3 of CCLEP and the proposal has been assessed as being consistent with those objectives including specifically:

9. To provide a range of industrial, warehouse, logistics and related land uses.

10. To ensure the efficient and viable use of land for industrial uses.

11. To minimise any adverse effect of industry on other land uses.

12. To encourage employment opportunities.

13. To enable limited non-industrial land uses that provide facilities and services to meet the needs of businesses and workers.

14. To ensure that retail, commercial or service land uses in industrial areas are of an ancillary nature.

15. To support and protect industrial land for industrial uses.

16. The development complies with cl 2.7 of CCLEP as development consent is sought for the proposed demolition.

17. The site is mapped as containing Class 5 acid sulfate soils, but the parties agreed that the proposed works are unlikely to lower the water table of adjacent Class 1- 4 land by more than 1m as per cl 7.1 of CCLEP and therefore no further consideration in this regard is required.

18. Clause 7.6 of CCLEP provides that development consent must not be granted unless the consent authority is satisfied that essential services (including water, electricity, sewage, stormwater drainage and vehicular access) are available, or that adequate arrangements have been made to make them available, for the proposed development. I am satisfied, on the basis of the existing use of the site and the amended plans, that essential services are available to the land.

State Environmental Planning Policy (Industry and Employment) 2021

12. Section 3.6 of the State Environmental Planning Policy (Industry and Employment) 2021 (IE SEPP) provides that consent must not be granted to development involving signage unless the consent authority is satisfied that the signage is consistent with the objectives set out in s 3.1(1)(a) and satisfies the assessment criteria specified in Sch 5. On the basis of the plans and the assessment prepared by Interface Planning (undated) I am satisfied of the relevant matters.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

13. Chapter 4 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) includes provisions to encourage the conservation and management of areas of natural vegetation that provide habitat for koalas. The parties have advised, and the Ecological Assessment Report (AEP, 14 December 2023) confirms, that the provisions do not apply as the site does not contain an area of more than 1ha of koala habitat nor does a koala plan of management apply to the land.

State Environmental Planning Policy (Resilience and Hazards) 2021

14. The site is located within the Coastal Zone as defined by the Coastal Management Act 2016 and more specifically the ‘Coastal Environment Area’ to which Ch 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) applies. I am satisfied on the basis of the civil and stormwater plans (Wallace Design Group, 24 February 2025), the Ecological Assessment (AEP, 14 December 2023) and recommended conditions of consent that relevant matters required to be considered under s 2.10 of the RH SEPP in relation to coastal matters have been considered and are satisfied.

15. Consideration has also been given as to whether the subject site is contaminated as required by s 4.6 of the RH SEPP and the parties agree that there is no evidence indicating potentially contaminating activities having occurred on site. Further, the proposal does not involve a change of use therefore s 4.6(2) does not apply and a preliminary site investigation is not required to be considered as contamination is unlikely. I am therefore satisfied, subject to the recommended conditions, that the site is suitable for the proposed use and that no further investigation in accordance with the RH SEPP is therefore required.

Other Matters

16. The parties have advised that the site contains a small area of land (0.001ha) mapped as having biodiversity values for the purposes of the Biodiversity Conservation Act 2016. The Ecological Assessment Report submitted with the Class 1 application (AEP, 14 December 2023) identifies that the proposed works will disturb approximately 0.16ha of native vegetation which is below the 0.25ha clearing threshold under the Act. Accordingly, the Biodiversity Offset Scheme is not triggered and a Biodiversity Development Assessment Report is not required. I am therefore satisfied that the requirements of the Act have been considered.

17. The parties have advised that the proposed development can comply with the requirements of s 138 of the Roads Act 1993 which applies to the proposal.

18. Owner’s consent to the lodgement of the application has been provided in accordance with the requirements of s 23(1) of the EPA Reg with the Class 1 application*.*

19. The development application, in its original form, was notified between 19 January and 5 February 2025. No submissions were received in response to the notification.

Conclusion

20. 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)).

21. In making the orders to give effect to the agreement between the parties, 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.

Orders

22. The orders of the Court are:

23. The appeal is upheld.

24. Development Application No DA/30/2024 for the demolition of existing building and construction of a new industrial building for the purposes of a storage premises, ancillary earthworks, servicing, car parking, tree removal and landscape treatment at Lot 13 DP 245530 known as 13 Tathra Street, West Gosford, is determined by the grant of consent subject to the conditions contained in Annexure A.

25. Pursuant to s 8.15(3) of the Environmental P**lanning and Assessment Act 1979 the applicant is to pay the respondent costs thrown away in the sum of $4,000.00.

H Miller

Acting Commissioner of the Court

Annexure A (293 KB, pdf)

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