Wathara NSW Pty Ltd v Central Coast Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Central Coast Development Control Plan 2022

Category: Principal judgment

Parties: Wathara NSW Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
G McKee (Solicitor) (Applicant)
S Simington (Solicitor) (Respondent)
Solicitors:
McKee Legal Solutions (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/328923

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 (NSW) (EPA Act) against the deemed refusal of Development Application DA/2087/2023. The development application seeks consent for a two stage Torrens title subdivision, demolition of existing structures, and related site works. The development is proposed at 985, 987-991 The Entrance Road and 139 Bakali Road, Forresters Beach (Lot 3 in DP 101649, Lot 522 in DP 1077907 and Lot 4 in DP 1000694).

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 18 March 2025. Following the conciliation conference, the Applicant made amendments to their development application responsive to the Respondent’s contentions, however the conciliation was ultimately terminated in September 2025 and the matter listed for hearing.

3. Prior to the commencement of the hearing, the Court arranged a further conciliation conference between the parties, which was held on 12 February 2026 at which I presided. Prior to the conciliation, the parties had without prejudice discussions which resulted in amendments to the proposed development. 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). The purpose of this test is to determine whether any jurisdictional impediments preclude the making of orders in accordance with the parties' agreed resolution. (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

5. The development application was made with the written consent of the owner of the land. This satisfied s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

6. The development application was notified for a period of 28 days between 25 January and 23 February 2024. Two submissions were received. Further, a member of the public addressed the court onsite and raised concern about the potential increase in through traffic to Bakali Road and the impacts on infrastructure during the construction phase of the project. 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. Pursuant to s 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 Stantec dated 15 December 2023. The PSI is supported by an ‘Unexpected Finds Protocol’ (UEP). The PSI concludes that, subject to the implementation of the UEP, the site is suitable for the proposed residential subdivision. The annexed conditions of consent require compliance with the PSI and the UEP. The requirements of cl 4.6 of SEPP RH are satisfied.

8. Part 7 ‘Biodiversity assessment and approvals under the Planning Act’ of the Biodiversity Conservation Act 2016 (NSW) (BC Act) applies to the development application. The parties agree, and I accept, that a Biodiversity Assessment Report (BDAR) is required as the development is likely to significantly affect threatened species under the provisions of s 7.2 of the BC Act as it is development that exceeds the biodiversity offsets scheme threshold: s 7.2(1)(b) of the BC Act. The development is accompanied by a BDAR which meets the requirements of s 7.7 of the BC Act. Further, the conditions of consent in Annexure A require the Applicant to retire biodiversity credits to offset the residual impacts of the development as specified in the BDAR.

9. With the assistance of the ecology experts’ report in the proceedings, I accept the agreement of the parties that the amended development application meets the requirements of ss 6.3 and 6.3A of the BC Act to avoid, minimise and offset impacts on biodiversity values of the site.

10. 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.

11. Relatedly, the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) apply. The site is, in part, mapped on the Biodiversity Values Map. The development application proposes vegetation clearing. The impact of the proposed clearing is assessed in the BDAR. Consistent with ss 2.3 and 2.6 of SEPP BC, the development consent includes consent for the proposed vegetation clearing.

12. Pursuant to ss 3.6 and 3.7 of SEPP BC, the consent authority is required to determine whether the land is potential koala habitat or core koala habitat prior to the grant of consent. A Koala Assessment Report accompanies the development application. That assessment concludes that no koalas were observed on the site, there are no signs of koala activity on the site, and it is not core koala habitat.

13. The development application is integrated development under s 4.47(2) of the EPA Act as an approval under s 100B of the Rural Fires Act 1997 (NSW) is required as the land is identified on the Respondent's Bushfire Prone Land Map certified under s 10.3 of the EPA Act. The development application includes a Bushfire Assessment Report prepared by Blackash Bushfire Consulting. The development application was referred to the NSW Rural Fire Service which issued General Terms of Approval on 27 August 2024.

14. As the site has frontage to a classified road (The Entrance Road), s 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies. Pursuant to s 2.119(2), the consent authority must not grant consent to development on a classified road unless it is satisfied that:

2.119 Development with frontage to classified road

…

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

11. The development application, including the proposed civil and intersection design for the development, were referred to Transport for NSW which have confirmed satisfaction with the development, subject to the imposition of conditions. Those conditions are included in Annexure A. On this basis I accept the agreement of the parties, and I am satisfied that s 2.119(2)(b) is met.
12. The development application is accompanied by an Acoustic Report prepared by PKA Acoustic Consultants. That report forms part of the approved documents under Condition 1 in Annexure A and makes recommendations for the installation of acoustic barriers as part of the subdivision and details the potential acoustic treatment required for any future residential development. Compliance with these recommendations is required by the annexed conditions. On this basis I am satisfied that the proposed development is designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.
13. The site is zoned R2 Low Density Residential, RE1 Public Recreation, C2 Environmental Conservation and part ‘Deferred Matter’ under Central Coast Local Environmental Plan 2022 (LEP 2022). Despite the recent amendment to LEP 2022, pursuant to cl 1.8A(2), a development application must be determined as if Central Coast Local Environmental Plan 2022 (Amendment No 8) had not commenced if the development application—

(a) relates to land that, immediately before the commencement of the plan, was identified as “Deferred Matter” on the Land Application Map, and

(b) was made, but not finally determined, before the commencement of the plan.

14. The portion of the land mapped as ‘Deferred Matter’ remains subject to the provisions of the Interim Development Order 122 (IDO 122).
15. I note that during the assessment of the development application, LEP 2022 was amended through the gazettal of a planning proposal. That amendment resulted in the land mapped ‘Deferred Matter’ being zoned C4 Environmental Living. However, applying cl 1.8A(3) of LEP 2022, the development application is required to be determined as if the amendment had not commenced.
16. LEP 2022 applies to the land mapped as R2 Low Density Residential, RE1 Public Recreation and C2 Environmental Conservation. Development for the purposes of subdivision is permitted in each of these zones under cl 2.6 of LEP 2022. In determining the development application, I have given consideration to the objectives of both the C2 Environmental Conservation, R2 Low Density Residential and RE1 Public Recreation.
17. The Lot Size Map adopted under cl 4.1(2) of LEP 2022 has prescribed the following minimum subdivision lot sizes:

(a) A 40ha minimum subdivision lot size for the part of the site zoned C2 Environmental Conservation. (b) A 550 square metre (sqm) minimum subdivision lot size for the part of the site zoned R2 Low Density Residential. (c) The land zoned RE1 Public Recreation is not subject to a minimum lot size. Pursuant to the Voluntary Planning Agreement (VPA), Lot 107 in the subdivision is proposed to be dedicated to the Respondent as a local park.

Subdivision of the land zoned C2 Environmental Conservation

18. In the subject development application, the whole of the land zoned C2 is contained within Lot 522 DP 1077907. Pursuant to cl 4.1G ‘Exceptions to minimum lot sizes for environmental purposes’ of LEP 2022 and the Key Sites Map, a portion of the site is mapped as “SZ”. Clause 4.1G applies and provides an exception to the minimum lot size. I accept the agreed submission of the parties that the amended development application meets the requirements of cl 4.1G(3) and may be subdivided in accordance with the provision.
19. Further, subcl (4) of cl 4.1G in LEP 2022 requires the consent authority to be satisfied that:

(a) the subdivision will facilitate the management and protection of the environmental values of the land, and

(b) land in the following zones will not be used for the purposes of residential accommodation:

(i) C2 Environmental Conservation

(ii) C3 Environmental Management

I am satisfied that the requirements of subcl (4) are met through the requirement in the consent, the VPA and the letter of offer for the land zoned C2 Environmental Conservation within the site to be managed in accordance with the approved Vegetation Management Plan (VMP) and the proposed covenant on the land.

Subdivision of the land zoned R2 Low Density Residential

20. The proposed lots within the portion of the site that is zoned R2 Low Density Residential comply with the minimum lots size standards at cl 4.1 and the exception provided by cl 4.1G(3)(a) of LEP 2022. I am satisfied that those wholly zoned R2 have a proposed lot size greater than 550 sqm. Pursuant to cl 4.1G, all other resulting lots proposed will contain an area not less than the applicable minimum lot size.
21. As noted above, in applying the exception at cl 4.1G of LEP 2022, I am satisfied that the requirements of subcl (4) of cl 4.1G are met in the terms of the proposed consent.

Subdivision of the deferred lands

22. Pursuant to IDO 122, the land deferred from LEP 2022 is zoned 7(C2) Conservation and Scenic Protection (Scenic Protection - Rural Small Holdings). The applicable minimum lot size in the 7(C2) zone is 2ha. Proposed Lot 108, which will be subject to the provisions of the VMP, has a lot size of 3.24ha. The proposed subdivision complies with the minimum lot size requirements.

23. The proposed road in the land deferred from LEP 2022 is not subject to a minimum lot size: cl 20(1)(a) of IDO 122.

24. Under cl 7.1 ‘Acid sulfate soils’ of LEP 2022, the subject site (excepting the deferred lands) is identified as containing Class 5 acid sulfate soils. In accordance with cl 7.1(2) of LEP 2022, 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. With the assistance of the Statement of Environmental Effects and the Geotechnical Report, I accept the submission of the parties that there are no works in the proposed development that fit within those parameters.

25. Pursuant to cl 7.9 of LEP 2022, 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. There is an existing water main, electricity supply at The Entrance Road to which the subdivision will be connected. Sewer services are available. The development application contains civil engineering plans which demonstrate the schema for stormwater management. Vehicular access is to be provided from The Entrance Road as detailed at [(12)].

26. Central Coast Development Control Plan 2022 (DCP 2022) applies to the site. The statement of environmental impacts filed with the application details the compliance of the proposed development with DCP 2022. In determining the development application, I have considered the provisions of the development control plan as required by s 4.15(1) of the EPA Act.

27. 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)).

28. 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.

Notes

7. The Court notes that the agreed orders of the parties include the Court granting the Applicant leave to rely on the following amended plans and documents. Further, I note that Central Coast Council, as the relevant consent authority, has approved, under s 38(1) of the EPA Regulation, the Applicant further amending Development Application DA/2087/2023 to include the documents set out below:

8. Vegetation Management Plan prepared by Fraser Ecological dated 3 December 2025.

9. Biodiversity Assessment Report prepared by Fraser Ecological dated 10 February 2026.

10. Bushfire Assessment Report prepared by Blackash dated 15 December 2025.

11. Deed of variation of Voluntary Planning Agreement prepared by Lindsay Taylor Lawyers dated 11 February 2026.

12. Letter of Offer prepared by Wathara NSW Pty Ltd dated 11 February 2026.

Orders

8. The Court orders that:

9. The appeal is upheld.

10. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent consent authority that are thrown away as a result of amending the development application as agreed or assessed.

11. Development Application DA/2087/2023 for the two stage Torrens title subdivision, demolition of existing structure and related works on Lot 3 in DP 101649, Lot 522 in DP 1077907 and Lot 4 in DP 1000694, otherwise known as 985, 987-991 The Entrance Road and 139 Bakali Road, Forresters Beach is determined by the grant of consent subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

Annexure A (598 KB, pdf)

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