Three Blokes and A Pub Pty Limited ATF Three Blokes and A Pub Unit Trust v Central Coast Council

Category: Principal judgment

Parties: Three Blokes and A Pub Pty Limited ATF Three Blokes and A Pub Unit Trust (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
G Shapiro (Solicitor) (Applicant)
M Ball (Solicitor) (Respondent)
Solicitors:
Hones Lawyers (Applicant)
MBM Legal + Conveyancing (Respondent)

File Number(s): 2024/241355

Publication restriction: Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, relate to an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the respondent’s deemed refusal of Development Application No DA/2024/2023 (DA). The DA seeks consent for alterations and additions to an existing pub, known as The Sunken Monkey Hotel. It is located at 207 The Entrance Road, Erina, with the site legally described as Lot 7 in Strata Plan No. 42059 (site).

Conciliation and agreement between the parties

2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 7 March 2025. I presided over the conciliation conference.

3. Prior to the conciliation conference, the parties had come to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal, subject to certain amendments to the DA, and granting consent subject to conditions.

4. 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.

Jurisdiction

5. The parties’ decision involves the Court exercising the consent authority function, under s 4.16 of the EPA Act, to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties provided the Court with an agreed jurisdictional statement (finalised on 10 March 2025). In regard to jurisdiction and having regard to this statement, I find as follows:

State Environmental Planning Policy (Resilience and Hazards) 2021

6. In regard to Ch 2 (concerned with coastal management) I accept the parties’ advice that the site is identified as “proximity area for coastal wetlands”. Section 2.8 provides that a consent authority must not consent to development land identified as proximity area for coastal wetlands unless it is satisfied the development will not significantly impact on: (a) the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or (b) the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest (per s 2.8(1)(a)-(b)). The parties agree that there is sufficient evidence for the consent authority to be satisfied of the matters listed in s 2.8(1)(a)-(b) based on the material at page 21 of the Statement of Environmental Effects (Tab 3 of the Class 1 Application, SEE) and the Concept Stormwater Drawings which form part of the Class 1 Application. I accept this advice of the parties and on this basis I am directly satisfied with respect to the provisions of s 2.8(1)(a)-(b).

7. The parties advise that the site is within the "coastal environment area". Section 2.10 provides that a consent authority must not consent to development on land that is within the coastal environment area unless the consent authority has considered certain matters (cl 2.10(1)(a)-(g)) and is satisfied that: (a) the development is designed, sited and will be managed to avoid an adverse impact referred to in s 2.10(1), or (b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised—the development will be managed to mitigate that impact. The parties agree that there is sufficient evidence for the consent authority to be satisfied of the matters listed in cl 2.10(2)(a)-(c) on pages 21-22 of the SEE. I accept this advice of the parties and am directly satisfied with respect to the provisions of s 2.10(2)(a)-(c).

8. Clause 2.11 provides that a consent authority must not consent to development within a "coastal use area" without giving consideration to, or taking into account, certain nominated matters (s 2.11(1)(a) and (c)) and is satisfied that: (a) the development is designed, sited and will be managed to avoid an adverse impact referred to in s 2.11(1)(a), or (b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised—the development will be managed to mitigate that impact (s 2.11(b)(i)-(iii)). The parties agree that there is sufficient evidence for the consent authority to be satisfied of the matters listed in s 2.11(b)(i) - (iii) on pages 22 - 23 of the SEE. I accept this advice of the parties and am directly satisfied with respect to the provisions of s 2.11(b)(i) - (iii).

9. Section 2.12 requires the consent authority to be satisfied that the proposed development within the "coastal zone" is not likely to cause increased risk of coastal hazards on that land or other land. The land is within the coastal zone. I accept the agreed advice of the parties that the development is not likely to cause increased risk of coastal hazards on that land or other land based on the material in pages 21-23 of the SEE.

10. In regard to Ch 4 (concerned with remediation of land) and s 4.6(1), the consent authority must not grant consent to development unless it has considered whether the subject 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. I am advised by the parties that, in response to contentions raised by the Council, the Applicant commissioned a Soil Contamination Assessment. None of the samples collected were above the adopted assessment criteria for contamination, no suspected asbestos containing material was uncovered during site sampling, and there was no suspected soil contamination. I am satisfied that there are no reasonable concerns with regard to contamination and the requirements of s 4.6(1) are met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

11. 42. For the purposes of s 4.9, the parties agree that as no vegetation is being removed, and the works are to an existing building, the development is likely to have no or a low impact on koala habitat.

State Environmental Planning Policy (Industry and Employment) 2021

12. Chapter 3 – Advertising and Signage applies to DA. For the purposes of s 3.6, the parties agree that the signage is consistent with the objectives of Chapter 3 as set out in section 3.1(1)(a), and satisfies the assessment criteria specified in Schedule 5. The parties jurisdictional statement provides an explanation of the reasoning behind this agreed position, referencing various particulars and points of justification. I accept this advice of the parties and am satisfied that the signage is consistent with the objectives of this Chapter as set out in section 3.1(1)(a), and that the proposed signage satisfies the assessment criteria specified in Schedule 5.

Central Coast Local Environmental Plan 2022 (CCLEP)

13. The development is permitted with consent within the subject E3 Productivity Support zone. Demolition is also permissible with consent under cl 2.7.

14. The parties advise that the proposed alterations and additions would not breach any development standards.

15. Part of the site is located within a flood planning area, so cl 5.21 applies. The applicant submitted a Flood Report (dated 18 October 2024) which addressed the relevant matters raised in cl 5.21(2) and (3). The parties jurisdictional statement explains how the provisions cl 5.21(2) have been satisfied having regard to the Flood Report findings. I accept this advice and I too am satisfied that the provisions cl 5.21(2) are met with the proposed alterations and additions.

16. For the purposes of clause 5.23 of the CCLEP 2022, I accept the advice of the parties that the proposed development is not reasonably likely to disturb public bushland.

17. For the purposes of clause 7.1, the Site is identified as having Class 1 and 3 Acid Sulfate Soils. An acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual, and provided to the consent authority in accordance with clause 7.1(2).

18. For the purposes of clause 7.6 of the CCLEP 2022, the Site currently has access to all essential services and the proposed alterations and additions will connect and utilise the existing services which is considered to be sufficient.

Other provisions of s 4.15(1) of the EPA Act

19. In relation to s 4.15(1)(d), I note the objections forwarded to Council following the proposal’s notification. During the conciliation conference, I had the opportunity to hear from the parties on the objection particulars and how there had been consideration to matters raised. I am satisfied that the jurisdictional requirement for consideration of submissions has been met.

Conclusion

20. Based on the above considerations, 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. It follows that I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

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 merit assessment of the issues that had been in dispute between the parties.

22. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation

23. The Court notes that:

24. The Respondent, Central Coast Council, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No. DA/2024/2023 to rely on the documents listed below:

Architectural Plans and Landscape Plans

| Reference | Description | Author/Drawn | Date | | DA001, Revision F | Site Plan & Analysis | Bergstrom Architects | 18 December 2024 | | DA020, Revision B | Demolition Plan – Lower Ground | Bergstrom Architects | 5 December 2024 | | DA021, Revision B | Demolition Plan – Ground | Bergstrom Architects | 5 December 2024 | | DA024, Revision B | Demolition Plan – Roof | Bergstrom Architects | 5 December 2024 | | DA100, Revision D | Proposed Lower Ground Floor Plan | Bergstrom Architects | 18 December 2024 | | DA101, Revision E | Proposed Ground Floor Plan | Bergstrom Architects | 5 December 2024 | | DA102, Revision D | Proposed Level 1 Plan | Bergstrom Architects | 5 December 2024 | | DA103, Revision C | Proposed Level 2 Plan | Bergstrom Architects | 5 December 2024 | | DA104, Revision C | Proposed Roof Level Plan | Bergstrom Architects | 5 December 2024 | | DA500, Revision C | Elevations – Sheet 01 | Bergstrom Architects | 5 December 2024 | | DA501, Revision C | Elevations – Sheet 02 | Bergstrom Architects | 5 December 2024 | | DA510, Revision C | Sections – Sheet 01 | Bergstrom Architects | 5 December 2024 | | L-01, Revision B | Landscape Plan – Ground | Space Landscape Designs | 12 September 2024 | | L-02, Revision B | Landscape Plan – Level 1 | Space Landscape Designs | 12 September 2024 |

Other Documents

| Document | Prepared by | Date | | Statement of Environmental Effects | Patch Planning | 18 November 2024 | | Traffic and Parking Assessment Study | Traffic Engineering Centre | 7 December 2024 | | Soil Contamination Assessment | Safe Work and Environments Pty Ltd | 5 August 2024 | | Flood Risk Management Report | Smart Structures Australia Consulting Engineers | 18 October 2024 | | Noise Assessment | Spectrum Acoustics | August 2024 | | Green Travel Plan | Traffic Engineering Centre | September 2024 | | BCA Assessment Report | Jensen Hughes | 22 November 2024 | | Waste Management Plan | TCQ Constructions | 19 August 2024 | | Operational Waste Management Plan | Elephants Foot Consulting | 23 October 2024 | | Owners Consent | Three Blokes and A Pub Pty Limited | 22 November 2023 | | Liquor License | Service NSW | 22 June 1959 | | Plan of Management | The Sunken Monkey Hotel | 17 December 2024 |

Orders

24. The Court orders:

25. The appeal is upheld.

26. Development Consent is granted to DA/2024/2023 for alterations and additions to an existing pub located at 207 The Entrance Road, Erina, subject to the conditions contained in Annexure A.

27. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is allowed to file the amended plans and documents referred to in the notation (at [22]) and the Applicant is to pay the Respondent’s costs “thrown away” as a result of the amendments to the development application in the agreed amount of $17,500.00 within 28 days of these orders.

Peter Walsh

Commissioner of the Court

Annexure A

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