Xu v Central Coast Council

Category: Principal judgment

Parties: Yifei Xu (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
C Koikas (Applicant)
C Rose (Solicitor) (Respondent)
Solicitors:
Sattler & Associates (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2025/144125
2025/144126

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: These proceedings consist of two concurrent Class 1 appeals for neighbouring sites. Both development applications propose the demolition of existing structures and the construction of a two-storey attached dual occupancy, one at 67 Victory Parade (67 Victory) and one at 69 Victory Parade (69 Victory), Tascott. Both applications also include the construction of a garage with one car space, landscaping, fencing and stormwater infrastructure. No subdivision of land is proposed.

2. The appeals, brought by Yifei Xu (the applicant) arise from the actual refusal by Central Coast Council (the Council) of both development applications: DA/258/2023 for 67 Victory and DA/260/2023 for 69 Victory (Lots 16 and 15 in DP 9417 respectively). The proposed developments are almost identical, excepting the proposed fill to the rear of all units except for Unit A of 69 Victory Parade (Unit 69A) and minor site specific variations.

3. Both sites are situated within an established suburban area of R2 Low Density Residential, located on the southern side of Victory Parade with direct frontage to Brisbane Water. The southern boundary of both sites is the Mean High Water Mark (MHWM).

4. These proceedings commenced as a conciliation conference pursuant to s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) on 7 October 2025. The parties did not resolve the contentions in dispute through conciliation, and the matter proceeded to hearing on 8 October 2025. At the commencement of the hearing, the applicant was granted leave to amend each application to:

5. Reduce the number of proposed bedrooms from 4 to 3;

6. Co-locate the two separate garages in the middle of the site;

7. Remove the proposed fill to the rear garden of Unit 69A;

8. Introduce a new retaining wall offset from the sea wall and between units 69A and 69B;

9. Provide updated floor space ratio (FSR) calculations and shadow diagrams; and

10. Confirm a variety of other minor associated amendments in response to the resolutions made through the joint expert reporting process.

11. As a result of these amendments, the remaining contentions relate to flooding and planning matters. The Council’s contentions are the same for both proceedings, and as such I will refer to the contentions as one.

12. For the following reasons, I find that both applications are incomplete and that as a result, I am unable to undertake a full and proper assessment of the impacts of the proposed developments. Accordingly, I find that both appeals should be dismissed on planning matters alone. As these planning matters are fundamental and decisive, I do not deal with the several issues relating to flooding and the joint report in respect of that topic in this judgment.

The applications are incomplete

7. The Council identified both absent and inconsistent information in the application in Contention 8 of their Statement of Facts and Contentions (Exhibit 1 for 67 Victory and Ex 2 for 69 Victory). This includes:

8. Inaccuracy and inconsistency in the architectural plans

9. Inaccurate FSR calculation

10. Inaccurate shadow diagrams

11. Absent structural details concerning flood impact.

12. In addition, I have raised issues with the lack of proper assessment and survey of a large mature Norfolk Island Pine on the neighbouring property, close to the north-eastern boundary of 69 Victory, and the implications for landscaping and stormwater provision.

13. In summary, as detailed below, I find that the issues raised relating to FSR and structural detailing are acceptable, but the balance of the matters listed at [7] are not, and that this constitutes applications for which the environmental impacts are unable to be properly assessed.

Floor space ratio calculation

10. Regarding the calculation of FSR, the Council submits that the calculations are inaccurate as the gross floor area (GFA) measurements upon which they are based omit several walls and balustrades, as demonstrated on the plans in Exs E and F. As the proposed FSR currently sits at the maximum allowable in the Central Coast Development Control Plan 2022 (DCP), the inclusion of these walls would push the FSR into non-compliance.

11. In assessment of each detailed wall or balustrade in dispute, I accept the applicant’s submission that the party wall dividing the two attached dwellings on each site should not be included in the calculation of GFA. This is based on the definition of GFA within the dictionary of the Central Coast Local Environmental Plan 2022 (LEP) which states that “gross floor area means the sum of the floor area of each floor of a building measured from … the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor”. The National Construction Code Pt A6G2 provides that Class 1 buildings include, inter alia, ‘…one or more buildings, which together form a single dwelling including…one of a group of two or more attached dwellings, each being a building, separated by a fire-resisting wall, including a row house, terrace house town house or villa unit.”

12. From this, and from their form with two separate pitched roofs joined in the centre, I accept that these attached dwellings comprise two buildings separated by a fire resisting wall. It follows therefore that the party wall should not be included in the calculation of GFA.

13. Rebecca Englund, the town planning expert for the Council highlights two further locations where the internal walls have been incorrectly excluded from the GFA calculation, including the internal wall between the living room and garage, and the balustrades to the light wells on level 1. While I accept these should be included as GFA, I also accept the applicant’s submission that the numeric impact of the resulting exceedance of FSR would be negligible in terms of overall impact on the bulk, scale and environmental impacts of the proposed dwellings. As FSR is governed in this instance by the DCP, not the LEP, I should apply these provisions flexibly pursuant to the provisions of s 4.15(3A) of the Environmental Planning and Assessment Act 1979 (NSW). From this, I am satisfied that in terms of FSR alone, the exceedance does not result in a building or buildings that offend the objectives of Clause 2.2.4.2 of the DCP.

Structural details concerning flood impact

14. The Council submits that there is no certainty regarding the structural integrity of the building when subject to wave action and inundation. Putting aside considerations of flood-related contentions, I concur with the submission of Peter Horton, the applicant’s flooding engineer, that structural engineering details would typically be provided prior to construction certificate unless they were likely to result in a material change to, for example, the building façade. Mr Horton submits, and I am satisfied, that the structural engineering is unlikely to result in any such material change, and that this issue could be resolved by condition should consent be granted to the applications.

The implications of an inadequate site survey on solar access

15. Fundamentally, the applications are not supported by complete and detailed surveys that demonstrate all critical information on neighbouring properties. Relevantly, this includes the absence of:

16. Spot levels to show the relative ground levels on neighbouring sites;

17. Locations of any trees or other substantial vegetation;

18. Structures shown within the rear garden to neighbouring 71 Victory Parade (71 Victory); and

19. The full extent of buildings and boundaries of the attached dwellings at 65 Victory Parade (65 Victory).

20. The applicant submits that the site analyses and surveys at Exs E and F are adequate, despite the Council’s observations.

21. The implications of the lack of detail are primarily with regards to overshadowing of private open space. Ms Englund submits that in the absence of any accurate survey, there is no way to firstly assess the solar compliance of the private open space to proposed Unit 69A, nor the impact of the proposed development on 65 Victory. In her opinion, this is firstly because the structures within 71 Victory to the east will almost certainly cast a shadow onto the site of Unit 69A, and that the levels and details of those adjacent structures have not been surveyed. She submits that secondly, having no information on the function, usability and relationship to internal living spaces of the private open spaces at 65 Victory, there is again no way of accurately assessing the impacts of the proposed development on the existing private open space of this property. In both cases, as the adjacent land levels have not been surveyed, any representation of shadows cast is based on assumption, not fact.

22. Paul Sarich, the applicant’s town planning expert, submits that there is sufficient information to assess the application, and that it is apparent from the amended shadow diagrams that sufficient sunlight will be achieved in both the proposed and neighbouring properties. However, he conceded in oral evidence that the impacts to both 71 Victory and 65 Victory have not been quantified in the application.

23. The DCP requires each dwelling to have a minimum area of private open space of 45m2, with minimum dimensions of 4.5m. These areas are required to be generally located at ground level, directly accessible from a living area within the dwelling (Clause 2.2.7.3). The DCP further requires the following in regard to sunlight access at Clause 2.2.7.5:

“OBJECTIVE

▪ To facilitate solar access to the living areas and private open space areas of the dwelling and neighbouring dwellings

REQUIREMENTS

a On June 21, 50% of the required principal private open space area for all dwellings should receive at least 3 hours of unobstructed sunlight access between 9am and 3pm.

b Dwellings should be orientated to allow optimum solar access for internal living areas.

c On June 21, 50% of the required principal private open space on adjoining land should receive at least 3 hours of unobstructed sunlight access between 9am and 3pm. Any proposed variation to this provision must demonstrate:

i the proposed development complies with the building height and building setback requirements of this chapter

ii the proposal adequately considers site constraints including slope and site orientation

iii that the adjoining development has not sufficiently considered likely future development and site constraints such as lot orientation in the location of private open space.

d Developments that are 2 or more storeys in height or greater shall provide shadow diagrams based on a survey of the site and adjoining development, showing shadow casting at 9 am, 12 noon and 3 pm on June 21 (winter solstice). The shadow diagrams must show the impact of shadowing from the proposed development, fencing, cut and fill as well as existing development, on the proposed development and adjoining properties.”

19. In considering compliance with this clause, the first step is to establish what is the principal private open space of each development upon which the sunlight may fall. In oral evidence, the town planners gave much consideration to this question, and to the numeric and spatial compliance of the proposed private open spaces with the DCP. Ms Englund is of the opinion that it is only the useable open space that can count towards the quantum of private open space. In her case, this excludes hedges, pools, steps and other features that are not accessible or ‘useable’, or do not meet the minimum 4.5m dimension. She therefore concludes that the area calculated on the shadow diagrams at Ex L is incorrect as it includes many of these elements, and further that it is not directly accessible from a living area within the dwelling, as per DCP Clause 2.2.7.3.

20. The applicant is of the opinion that the solar diagrams adequately demonstrate the required 45m2 of private open space, with a minimum dimension of 4.5m, to the rear of the site, and that this space is directly accessible from the living area by moving through the alfresco area and past the pool. They further suggest that hedges should form part of the calculation.

21. I agree with the applicant that it is acceptable to include the more accessible, functional planting, such as the side hedges, in the calculation of private open space under these circumstances. However, I also concur with Ms Englund that the areas of private open space shown within the red line on the shadow diagrams at Ex L include planting beyond a retaining wall (wall not shown on the shadow diagrams) and areas beyond the dilapidated sea wall which, as we observed on site, are currently covered in seagrass wrack and are unusable. I therefore consider that any area beyond the proposed retaining walls in units 69B, 67A and 67B do not form part of the private open space quantum, and in the case of 69A where no retaining wall is proposed, the private open space only extends to the inside of the sea wall.

22. Further, although I accept that the alfresco areas adjacent to the dwellings, and the connecting space in between do form useable open space, they do not meet Council’s minimum dimension requirements of 4.5m. This appears to be the result of the inclusion of a swimming pool, and the building extending to its maximum envelope in terms of front and rear setbacks. These alfresco areas also receive limited sunlight.

23. The applicant submits that it is apparent from the shadow diagrams that the impact of the absent structures on overshadowing would be minimal, which was confirmed by Ms Englund on the stand. However, Ms Englund maintains, and I concur, that the areas quantified are inaccurate and the solar diagrams misleading, and that the applicant has therefore not confirmed whether the proposed private open spaces meet the requirements of the DCP in terms of sunlight access.

24. Further, no calculations have been provided to the Court regarding the solar access to the private open space of adjacent properties. No boundaries or complete structures are shown to 65 Victory, and the existing private open space and resulting overshadowing have not been quantified. This is contrary to the requirements of DCP Clause 2.2.7.5.

25. Put simply, on the current documentation, there is no way to accurately assess the compliance of the proposed development with the sunlight access provisions of the DCP. As a result, I cannot consider any proposed flexible application of the provision, as the information for such an assessment is not before me in this application.

No assessment of neighbouring trees

26. The trees located on neighbouring sites are not located on any survey, site analysis or other drawing (including the landscape drawings), and no arboricultural impact assessment (AIA) is provided to assess these trees or the likely impact of the proposed development on them. Of particular concern is the mature Norfolk Island Pine within the rear yard of 71 Victory.

27. The Council estimated that this tree, which can be seen well above all nearby buildings, is located approximately 1m from the site boundary at its trunk. They also submit that surface roots are visible on the site of 69 Victory. I was not directed to observe the surface roots, but the aerial photograph in Ex 2 confirms that the canopy extends well over the boundary of 69 Victory. In the absence of an AIA, I consider that it is highly likely the structural root zone of this tree extends well into 69 Victory, with implications for both units 69A and 69B.

28. To remedy this, and in response to my enquiry, during the hearing the applicant amended their application to remove the proposed fill to the rear yard of Unit 69A. All other rear yards will have 150mm of fill, held with a timber retaining wall.

29. Although this amendment results in no fill above the roots in the lot closest to the tree, the proposed development includes works with potential implications for the tree that have not been explored. These include the retaining wall between units 69A and 69B, fill within unit 69B, and potential stormwater works.

30. I further note that in the Town Planning Joint Expert Report (Ex 10), Ms Englund queries the extent of works with regards to fill, and of the construction levels of the swimming pools. No comprehensive sections have been provided that illustrate the proposed fill and levels from boundary to boundary.

31. The stormwater concept plan prepared by MBR Consulting (Exhibit B) shows a proposed 150mm diameter PVC pipe running from a rainwater/on-site detention tank at the side of Unit 69A to an outlet adjacent to the sea wall. In oral evidence, Mr Drew Bewsher, the applicant’s stormwater expert, described the many alternatives that could be proposed to this concept system that could avoid the tree. This includes diverting the pipe to the garden of Unit 69B and discharging beyond the sea wall rather than to a headwall inside the garden.

32. Revisions to the stormwater plans are proposed in the filed draft conditions of consent, however given the absence of root mapping and an AIA, I concur with Ms Louise Collier, the Council’s stormwater and flooding expert, that the alternative concept proposal should be drawn and assessed as part of this application prior to determination. Although detailed design may come at a later stage, I consider that the stormwater concept plan in no way represents the alternative scenarios suggested in oral evidence by Mr Bewsher, and further that the stormwater concept has been designed with no consideration of, or coordination with, the landscape plans.

33. I further note that the concept stormwater proposal has a notation on the swimming pools that reads ‘drainage of proposed pool to be designed by others’, placing the impact of the conceptual drainage infrastructure on the tree further in question.

34. In summary, due to the lack of consideration of the adjacent mature Norfolk Island Pine, and the absence of an AIA, I am unable to fully and accurately assess the impacts of the proposed developments on the adjacent mature tree. It is my considered opinion that this is not an issue that can be dealt with by condition of consent, as it speaks to the viability and environmental impacts of the proposals for which consent is requested.

Conclusion

35. For the reasons given, due to both insufficient and inaccurate information, I am unable to assess the impact of the proposed developments on the sunlight access of neighbouring developments, or the impact on the mature tree adjacent to Unit 69A. I am further unable to assess the compliance of sunlight access requirements of the DCP within the development itself. These are critical environmental impacts that, in my opinion, must be considered in the assessment of an application in order to decide whether to grant consent. In the absence of these considerations, I am unable to make the appropriate assessment and accordingly, the applications must be refused in the first instance due to insufficient and inaccurate information.

Orders

In matter no. 2025/144125:

36. The Court orders:

37. The appeal is dismissed.

38. Development application DA/260/2023 for the demolition of existing structures and construction of a dual occupancy at 69 Victory Parade is determined by way of refusal.

39. Exhibits 1, 2, 10, A, B, D, E, F, G, H and L are to be retained. All other exhibits are to be returned.

In matter no. 2025/144126:

37. The Court orders:

38. The appeal is dismissed.

39. Development application DA/258/2023 for the demolition of existing structures and construction of a dual occupancy at 67 Victory Parade is determined by way of refusal.

40. Exhibits 1, 2, 10, A, B, D, E, F, G, H and L are to be retained. All other exhibits are to be returned.

E Washington

Commissioner of the Court

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