Tri-Anta Pty Ltd v Central Coast Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 29, 37, 38
State Environmental Planning Policy (Housing) 2021, Ch 4, s 147, Sch 9
State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2, 4, ss 2.10, 2.11, 2.12, 2.13, 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1
Central Coast Local Environmental Plan 2022, cll 2.1, 2.3, 4.3, 4.4, 4.6, 5.21, 7.1, 7.6

Texts Cited: NSW Department of Planning, Apartment Design Guide (July 2015)
Central Coast Community Engagement Strategy 2025

Category: Principal judgment

Parties: Tri-Anta Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
H Grace (Applicant)
C Rose (Solicitor) (Respondent)
Solicitors:
Garland Hawthorn Brahe Solicitors (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2025/232902

Publication restriction: Nil

JUDGMENT

1. This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), brought by Tri-Anta Pty Ltd (the Applicant), against the deemed refusal of Development Application DA/2001/2024 (the DA) by Central Coast Council (the Respondent).

2. At the date of its lodgement on 7 January 2025, the DA sought consent for the demolition of existing structures and the construction of a four-storey shop top housing development comprising twelve residential units, two retail tenancies at ground level and basement parking, at 92 and 96-98 Terrigal Esplanade, Terrigal (the site).

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 22 October, 14 November, 3 and 15 December 2025. I presided over the conciliation conference.

4. During the conciliation conference, the parties reached agreement to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

5. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions raised by the Respondent. These contentions included issues of exceedance of the relevant building height control, exceedance of the relevant floor space ratio (FSR) control and associated impacts of excessive building bulk and scale, unacceptable visual impacts, inconsistency with the desired future character of the immediate neighbourhood, impacts of overshadowing upon neighbouring properties, inadequate visual privacy and cross viewing, inadequate internal amenity available to certain apartments, inadequate parking provision and inadequate details addressing flood mitigation, amongst other contentions.

6. Agreed design amendments have been made to improve the proposed building’s relationship to the site and its context. Changes have been made to reduce the overall bulk and scale of the proposed building form, particularly by reconfiguring access to private rooftop terraces via operable roof hatches. The design of retail frontages and awnings has been amended to result in a better contextual fit and improved ground level activation. Additional information has been provided to the satisfaction of the Respondent, including detailed overshadowing diagrams, a visual impact assessment, amended basement configuration and vehicle access, waste management arrangements. Other issues, including an agreed justification for the proposed building height exceedance, have also contributed to the resolution of the dispute.

7. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

10. The DA was publicly notified in accordance with the Respondent’s Central Coast Community Engagement Strategy 2025 between 24 January and 17 February 2025. A total of ten submissions were received by the Respondent raising concerns including:

11. Excessive building height, bulk and scale.

12. Impacts upon views, including view loss.

13. Inappropriate architectural design.

14. Impacts of waste management and bin collection.

15. Inconsistency with existing character and streetscape of the local area.

16. Overshadowing, solar access and daylight impacts to immediate neighbouring properties.

17. Visual and acoustic privacy impacts to immediate neighbouring properties, including impacts of basement exhaust.

18. Visual bulk and scale impacts on neighbouring properties.

19. Traffic and parking impacts arising from the proposed parking provision.

20. Inadequate landscaped areas.

21. Construction phase impacts.

22. Pedestrian safety.

23. Inadequate building setbacks.

24. Impacts of the urban heat island effect.

25. At the site view on the morning of 22 October 2025, a number of affected local residents and objectors addressed the Court to present their concerns, and the Court visited adjacent properties to directly observe building separation and privacy relationships, along with potential view affection issues.

26. Noting the concerns of objectors, the parties agree, and I am satisfied, the amended DA mitigates against a number (but not necessarily all) of the concerns raised by the objectors, primarily by reducing the proposed building form, bulk and scale, reducing overshadowing of neighbouring properties, and by ensuring improved privacy between neighbouring buildings.

27. The parties agree, and I am satisfied, that the amended DA and agreed conditions of consent satisfactorily consider the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

28. The parties agree, and I am satisfied, that the Central Coast Local Environmental Plan 2022 (CCLEP) is the relevant local environmental planning instrument.

29. Pursuant to cl 2.1 of the CCLEP, the site is zoned E1 Local Centre. The amended DA - characterised as shop top housing and commercial premises - is permissible with consent within the E1 zone.

30. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the CCLEP, the amended DA is consistent with the E1 Local Centre zone objectives to the extent they are relevant.

31. Pursuant to cl 4.3 of the CCLEP - Height of buildings - the site benefits from a development standard for building height of RL18.5mAHD.

32. The amended DA proposes a maximum building height of RL19.5mAHD exceeding the development standard by 1m or 5.4%.

33. Clause 4.6(3) of the CCLEP requires the consent authority (the Court in this instance) to be satisfied the Applicant has demonstrated that compliance with the relevant development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

34. Accordingly, the Applicant has provided a written document seeking to vary the relevant development standard for height of building, prepared by Think Planners and dated November 2025.

35. The parties agree, and I am satisfied, that the written document adequately justifies the proposed variance to the height of buildings development standard for the following reasons:

36. The amended DA is agreed to be of an appropriate form and scale that is compatible with the existing streetscape and desired future character of the locality.

37. The areas which contribute to the building height exceedance are non-habitable components of the amended DA necessary to provide access to private residential roof terraces, balustrading and the lift overrun.

38. The portions of the building which generate the height exceedance are limited to a relatively small area of the upper-most floor and are generally set towards the centre of the site, receding from view as the amended DA presents to the streetscape.

39. The amended DA generally presents to the surrounding streetscape as a four-storey building, which is consistent and compatible with nearby development and recent approvals.

40. The proposed height exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.

41. The relevant objectives of the CCLEP E1 Local Centre land use zone include to provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area; to encourage investment in local commercial development that generates employment opportunities and economic growth; to enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area; to encourage business, retail, community and other non-residential land uses on the ground floor of buildings; to encourage employment opportunities in accessible locations; to maximise public transport patronage and encourage walking and cycling; to minimise conflict between land uses within the zone and land uses within adjoining zones; to encourage an increased residential population through stand alone development or as part of mixed use development in centres and other local areas where land is not otherwise required to serve local needs; and to permit residential uses while maintaining active retail, business and other non-residential uses at street level to contribute to the vitality of the area. I am satisfied the amended DA is consistent with these objectives.

42. The relevant objectives of cl 4.3 of the CCLEP - Height of buildings - include to establish a maximum height of buildings to enable appropriate development density, and to ensure that the height of buildings is compatible with the character of the locality. I am satisfied the amended DA meets these objectives.

43. Consequently, I am satisfied the Applicant’s cl 4.6 written document adequately justifies the proposed variation to the relevant height of building development standard, and I find to uphold the written request.

44. The parties agree, and I am satisfied, that all remaining principal development standards of the CCLEP, in particular for FSR, have been met by the amended DA.

45. The parties agree, and I am satisfied, that pursuant to cl 5.21 of the CCLEP - Flood planning - the site is situated within an identified flood planning area. The Applicant has provided a Flood Risk Management Plan prepared by AT&L, dated 22 November 2024, and an addendum letter also prepared by AT&L, dated 11 December 2025, which provides recommendations concerning flood mitigation.

46. Accordingly, the parties agree, and I am satisfied that the amended DA satisfactorily addresses the matters of consideration set out at cl 5.21(2) and 5.21(3) of the CCLEP.

47. The parties agree, and I am satisfied, that pursuant to cl 7.1 of the CCLEP - Acid sulfate soils - the site is mapped within an area affected by acid sulfate soils. The Applicant has provided an Acid Sulfate Soils Management Plan, prepared by EI Australia, dated 22 November 2024. Agreed conditions of consent are imposed to require compliance with this report.

48. The parties agree, and I am satisfied, that pursuant to cl 7.6 of the CCLEP - Essential services - the site is suitably supplied with water and electricity services, and has access to the main sewer system. The amended DA proposes a stormwater management system, and appropriate vehicular access to basement levels for parking and waste management.

49. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument.

50. Chapter 2 of SEPP Resilience deals with coastal management. The site is mapped as part of a ‘coastal environmental area’ and a ‘coastal use area’ within the relevant maps of SEPP Resilience.

51. Pursuant to s 2.10 of SEPP Resilience, the parties agree and I am satisfied, that the amended DA has been designed to avoid the adverse impacts of those matters set out at s 2.10(1) of SEPP Resilience.

52. Pursuant to s 2.11 of SEPP Resilience, the parties agree and I am satisfied, that the amended DA has been designed to avoid the adverse impacts of those matters set out at s 2.11(1)(a)-(c) of SEPP Resilience.

53. Pursuant to s 2.12 of SEPP Resilience, the parties agree and I am satisfied, that the final amended DA has been designed in a manner not likely to cause increased risk of coastal hazards.

54. Pursuant to s 2.13 of SEPP Resilience, the parties agree and I am satisfied, that consent must not be granted to development on land within the coastal zone unless the consent authority (the Court) has taken into consideration the relevant provisions of any certified coastal management program that applies to the land. In this instance, no such plan has been certified.

55. Chapter 4 of SEPP Resilience deals with remediation of land. Pursuant to s 4.6 of SEPP Resilience, the Applicant has provided a Preliminary Site Investigation, prepared by EI Australia and dated 25 January 2024 and a Hazardous Material Report, prepared by EI Australia and dated 21 October 2025. These reports conclude the site can be remediated to make it suitable for the proposed development. Agreed conditions of consent dealing with contamination and hazardous materials require compliance with the findings of these reports.

56. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings). Consistent with s 2.1 of SEPP Sustainable Buildings and pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg), a BASIX certificate, 1772550M_03, dated 12 December 2025, has been provided with the amended DA. This BASIX certificate includes details of quantified embodied emissions attributable to the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

57. The parties agree, and I am satisfied, that State Environmental Planning Policy (Housing) 2021 (SEPP Housing) is an additional relevant environmental planning instrument.

58. The amended DA is subject to the provisions of ch 4 of SEPP Housing, which deals with the design of residential apartment development.

59. Pursuant to the relevant provisions of SEPP Housing and the EPA Reg, the Applicant's architect, SRH Architecture Pty Ltd (nominated architect Mr Simon Hanson - NSW registered architect 6739) has prepared a Design Verification Statement, fulfilling the requirements of s 29 of the EPA Reg and confirming that the amended DA achieves the Design principles set out in Sch 9 of SEPP Housing. This statement also sets out how the objectives of Parts 3 and 4 of the Apartment Design Guide have been achieved in the design of the amended DA.

60. Accordingly, I am satisfied the amended DA meets the requirements of s 147 of SEPP Housing.

61. The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the amended DA warrants the grant of consent, subject to conditions.

62. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

63. The Court notes that:

64. Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant has amended the DA with the approval of the Respondent.

65. The Applicant has lodged the final amended DA with the Court on 16 December 2025.

Orders

43. The Court orders that:

44. Leave is granted to the Applicant to amend Development Application DA/2001/2024 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

45. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $6,500 within 28 days of the date of these orders.

46. The appeal is upheld.

47. Consent is granted to Development Application DA/2001/2024 (as amended) for the demolition of existing structures and construction of a four-storey shop top housing development at 92 and 96-98 Terrigal Esplanade, Terrigal, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

**********

Annexure A.351 KB.pdf

Architectural Plans.37.2 MB.pdf