Vale Nominee Pty Ltd v Central Coast Council

Texts Cited: Community Participation Plan 2025-2029
Planning for Bush Fire Protection 2019

Category: Principal judgment

Parties: Vale Nominee Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
E Fleming (Solicitor) (Applicant)
M Ball (Solicitor) (Respondent)
Solicitors:
Macpherson Kelley (Applicant)
Central Coast Council (Respondent)

File Number(s): 2025/313426

Publication restriction: No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Development Application DA/501/2025 seeking consent for the amalgamation of Lots 10-14 within the parent subdivision and the construction of a single storey centre based child care facility for 120 children with ancillary works (Proposed Development) at approved lots 10-14 under DA/385/2023 on land legally described as Lot 72 in DP7091 and known as 77-91 Warnervale Road, Warnervale NSW 2259 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 14 November and 11 December 2025. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached 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 and granting development consent to the development application 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note provided to the court.

7. On 26 March 2024, the Land and Environment Court granted consent to Development Application No. DA/385/2023 for the subdivision (61 lots) and an environmental corridor and associated infrastructure works, (Parent Subdivision) and the Site is limited to Lots 10 to 14 of the Parent Subdivision. A subdivision works certificate has been issued for the Parent Subdivision and works are nearing completion. Condition 2.2 of the Conditions of consent at Annexure A requires the lots approved under the Parent Subdivision to be created, and associated infrastructure servicing those lots must be completed prior to the issue of a construction certificate for the Proposed Development.

8. The Site is owned by the Applicant.

9. The Proposed Development was notified in accordance with the Respondent’s Community Participation Plan 2025-2029 between 16 May 2025 to 6 June 2025. No submissions were received in response to the DA during the notification period. The approved amendments to the Proposed Development were not renotified because the Respondent formed the view that the amendments did not significantly increase the environmental impact of the development.

10. The Site is identified as Bushfire Prone Land on the relevant Bush Fire Prone Land Map under s 10.3(2) of the EPA Act. The Site is mapped as “Vegetation Category 1” and “Vegetation Buffer”. The Development Site is within “Vegetation Category 1”.

11. The DA is integrated development and was referred to the NSW Rural Fire Services (RFS) under s 100B of the Rural Fires Act 1997 (NSW). On 25 June 2025, RFS issued General Terms of Approval under Div 4.8 of the EPA Act (GTAs) and a Bushfire Safety Authority under s 100B of the Rural Fires Act 1997 (NSW) (BSA), subject to conditions. The recommended conditions have been appropriately incorporated in the Conditions of consent at Annexure A.

12. Section 4.14(1) of the EPA Act provides that development consent cannot be granted on bushfire prone land unless the consent authority:

(a) is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or

(b) has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements.

13. The Applicant relies on a Bushfire Hazard Assessment Report prepared by Blackash Bushfire Consulting dated 2 April 2025 filed at Tab 10 of the Class 1 Application, which confirms the Proposed Development can comply with the Planning for Bush Fire Protection 2019 (PBP) as required under s 4.14(a) of the EPA Act. The Bushfire Hazard Assessment Report provides recommended mitigation measures and construction requirements to reasonably address the aims and objectives of the PBP. These recommendations have been included in the Conditions of consent at Annexure A.

14. The Court is therefore satisfied of the matters in s 4.14(1) of the EPA Act.

15. The Site has the following zonings under the Central Coast Local Environmental Plan 2022 (CCLEP):

16. R1 General Residential; and

17. RE1 Public Recreation.

18. “Centre-based childcare facilities” are nominated as development which is permissible with consent in the R1 and RE1 Zones pursuant to the CCLEP.

19. There is no maximum height of building development standard nor a maximum floor space ratio applicable for the Site under the CCLEP.

20. The Site is identified as an “Urban Release Area” under the Urban Release Area Map of the CCLEP and cl 6.2 requires the consent authority to be satisfied that public utility infrastructure that is essential for the Proposed Development is available, or that adequate arrangements have been made to make that infrastructure available when it is required. The Parent Subdivision includes conditions requiring written confirmation from the relevant service authorities that satisfactory arrangements have been made for the provision of electricity and telecommunications to each lot and documentation that demonstrates provision of gas supply to any lots (refer to condition 5.4 of the Parent Subdivision).

21. The Parent Subdivision also includes conditions requiring a s 307 Certificate of Compliance under the Water Management Act 2000 (NSW) for water and sewer requirements, and that all water supply and sewer works for the Parent Subdivision to be completed (refer to condition 5.7 of the Parent Subdivision).

22. As noted above, condition 2.2 of the Conditions of consent at Annexure A require the Parent Subdivision to be completed and a subdivision certificate to be issued prior to the issue of a construction certificate for the Proposed Development. Therefore, the essential services will be available for the proposed development when it is required.

23. Similarly, cl 7.6 of the CCLEP requires prior satisfaction of the availability or that adequate arrangements have been made to make available services essential for the Proposed Development. In addition to the public utility infrastructure, the parties explain that stormwater drainage or on-site conservation is addressed as follows:

24. The Amended DA is accompanied by Concept Engineering Plans prepared by ADW Johnson dated 26 November 2025 (refer to Tab 3 of Note 2 of the s34 Agreement) and Water Cycle Management Plan prepared by ADW Johnson dated 26 November 2025 (refer to Tab 6 of Note 2 of the s34 Agreement). The proposed stormwater management strategy has been designed to convey stormwater runoff from the development to the downstream stormwater infrastructure. The development will rely on the temporary detention basin of the Parent Subdivision, which has sufficient capacity to manage peak discharge rates from this development. The temporary detention basin will remain in operation until the regional stormwater infrastructure is completed, at which point flows will be directed to the regional facilities.

25. Finally, the parties explain regarding road access as follows:

26. Access to the development is proposed by a driveway off Dragonfly Street (approved Road No. 1 of the Parent Subdivision) which connects to Warnervale Road. The Amended DA is accompanied by the following traffic assessments which confirm the development is acceptable from a traffic and access perspective:

(a) Traffic and Parking Impact Assessment prepared by McLaren Traffic Engineering dated 17 February 2025 (refer to Tab 8 of the Class 1 Application); (b) Traffic Response to the Statement of Facts and Contentions prepared by McLaren Traffic Engineering dated 31 October 2025 (refer to Tab 7 of Note 2 of the s34 Agreement); and (c) Traffic Letter of Compliance Advice prepared by McLaren Traffic Engineering dated 25 November 2025 (refer to Tab 7 of Note 2 of the s34 Agreement).

23. Accordingly, the Court is satisfied that the services that are essential for the Proposed Development will be available when required. The Conditions of consent at Annexure A also require the relevant certificates to be obtained.

24. The Site is not mapped to contain acid sulfate soils and no works are proposed within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land: cl 6.1, CCLEP

25. In satisfaction of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), contamination assessments were prepared for the Parent Subdivision and included in the approved documents. Condition 2.3 of the Parent Subdivision requires the remediation and validation of the Site. Conditions 2.4 and 5.11 of the Parent Subdivision require the preparation of a site audit statement to demonstrate that the land is suitable for use. Remediation works at the Site were carried out between June and October 2024 under DA/385/2023.

26. A Site Audit Report and Site Audit Statement has been prepared by Ramboll Australia Pty Ltd dated 4 November 2024 (refer to Tab 11 of the Class 1 Application). The Site Audit Statement identifies that the Site is suitable for sensitive uses including a “Day care centre”. The Conditions of consent at Annexure A include procedures in the event that unexpected contamination is found during the construction stage.

27. Section 3.26(2) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) sets out non-discretionary development standards for the purpose of s 4.15(2) and (3) of the EPA Act in relation to the carrying out of development for the purpose of a centre-based child care facility. Namely, s 3.26(2)(b) provides the requirements for indoor or outdoor space. The Proposed Development provides at least 3.25m2 of unencumbered indoor play space and at least 7m2 of unencumbered outdoor play space per child, which is consistent with the indoor and outdoor unencumbered space requirements of the Education and Care Service National Regulations.

28. 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. I adopt the reasons given by the parties as set out in this judgment.

29. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notations:

30. The Court notes that the Respondent has approved, as the relevant consent authority, under section 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending Development Application No. DA/501/2025 to rely upon the following amended documents (Amended Development Application), as filed with the Court:

| Drawing No and Revision | Title | Prepared by | Date | | Architectural Plans | | 1 | Drawing No: A-DA-00.01 Revision H | Title Page | Elevation Architecture | 25 November 2025 | | Drawing No: A-DA-01.01 Revision G | Site Plan | 25 November 2025 | | Drawing No: A-DA-01.02 Revision B | Cut and Fill Plan | 25 November 2025 | | Drawing No: A-DA-01.03 Revision A | Survey (by others) | 25 November 2025 | | Drawing No: A-DA-03.01 Revision J | Floor Plan - Ground | 25 November 2025 | | Drawing No: A-DA-03.02 Revision D | Floor Plan - Unencumbered Area Plan | 25 November 2025 | | Drawing No: A-DA-03.03 Revision D | Floor Plan - Indicative Playscape Plan | 25 November 2025 | | Drawing No: A-DA-03.04 Revision B | Floor Plan - Playscape Shading Plan | 25 November 2025 | | Drawing No: A-DA-03.05 Revision B | Floor Plan - Supervision Plan | 25 November 2025 | | Drawing No: A-DA-03.06 Revision B | Floor Plan - Egress Plan | 25 November 2025 | | Drawing No: A-DA-04.01 Revision F | Roof Plan | 25 November 2025 | | Drawing No: A-DA-09.01 Revision H | Elevations (Sheet 01) | 25 November 2025 | | Drawing No: A-DA-09.02 Revision G | Elevations (Sheet 02) | 25 November 2025 | | Drawing No: A-DA-09.03 Revision C | Elevations (Streetscape) | 25 November 2025 | | Drawing No: A-DA-10.01 Revision F | Sections (Sheet 01) | 25 November 2025 | | Drawing No: A-DA-13.01 Revision D | Fence Details | 25 November 2025 | | Drawing No: A-DA-13.02 Revision B | Bin Store Details | 25 November 2025 | | Drawing No: A-DA-13.03 Revision B | Kitchen Details - Plan | 25 November 2025 | | Drawing No: A-DA-13.04 Revision B | Kitchen Details - Elevations | 25 November 2025 | | Drawing No: A-DA-22.01 Revision F | Renders (Sheet 01) | 25 November 2025 | | Drawing No: A-DA-22.02 Revision F | Renders (Sheet 02) | 25 November 2025 | | Drawing No: A-DA-22.03 Revision F | Renders (Sheet 03) | 25 November 2025 | | Drawing No: A-DA-22.04 Revision C | Renders (Sheet 04) | 25 November 2025 | | Drawing No: A-DA-22.05 Revision B | Renders (Sheet 05) | 25 November 2025 | | Drawing No: A-DA-30.01 Revision B | Sun Diagrams | 25 November 2025 | | Landscape Plans | | 2 | Drawing Ref: 25-18(Rev 2) | Landscape Plan | Brian Filby Landscape Design | November 2025 | | Engineering Plans | | 3 | Drawing No: 001 Revision D | Cover Sheet, Index of Drawings & Locality Sketch | ADW Johnson | 26 November 2025 | | Drawing No: 002 Revision D | Detail Plan Overall | 26 November 2025 | | Drawing No: 101 Revision D | Detail Plan Carpark | 26 November 2025 | | Drawing No: 221 Revision D | Driveway Longitudinal Section: Driveway No.1 | 26 November 2025 | | Drawing No: 501 Revision D | Site Regrade Plan | 26 November 2025 | | Drawing No: 511 Revision D | Site Section: Section A & B | 26 November 2025 | | Drawing No: 512 Revision D | Site Section: Section C & D | 26 November 2025 | | Drawing No: 513 Revision D | Site Section: Section E | 26 November 2025 | | Drawing No: 521 Revision D | Retaining Wall Structural Details | 26 November 2025 | | Drawing No: 601 Revision D | Erosion & Sediment Control Plan | 26 November 2025 | | Drawing No: 602 Revision D | Erosion & Sediment Control Details & Notes | 26 November 2025 | | Documents | | 4 | Water Cycle Management Plan | ADW Johnson | 26 November 2025 | | 5 | DA Acoustic Report – ELC, Version 5 | PKA Acoustic Consulting | 26 November 2025 | | 6 | Resource and Waste Management Plan | | | | 7 | Letter of Compliance Advice - Traffic | McLaren Traffic Engineering | 25 November 2025 & 31 October 2025 | | 8 | Schedule of Amendments | | | | 9 | Draft Plan of Subdivision of Lot 72 in DP7091, Administration Sheet and Section 88B Instrument | | | | 10 | Operational Management Plan – Version 4 | Elevation Architecture | 30 October 2025 | | 11 | Structural Details Retaining Wall Layout – Version A, 6852-S01 – S02 | Global Project | 30 October 2025 |

Orders:

31. The Court orders:

32. The Applicant is to pay the Respondent’s costs, in the amount of $4,000 within 28 days of the issue of tax invoice, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or as assessed.

33. The Appeal is upheld.

34. Development Application No. DA/501/2025, as amended, for the amalgamation of approved Lots 10-14 within the parent subdivision DA/385/2023 and the construction of a single storey centre based child care facility for 115 children with ancillary works on approved Lots 10-14 on land legally described as Lot 72 in DP7091 and known as 77-91 Warnervale Road, Warnervale NSW 2259, is determined by the grant of development consent subject to the conditions at Annexure A.

E Espinosa

Commissioner of the Court

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Annexure A.352 KB.pdf

Architectural Plans.(1).24.8 MB.pdf