Australia, June 2 -- New South Wales Land and Environment Court issued text of the following judgement on May 2:

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Central Coast Council, of development Application DA/554/2024 which seeks consent for the demolition of existing structures and the construction of a new dwelling house at Lot 12 in DP 11004, known as 47 Ocean View Drive, Wamberal.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30-31 January 2024. I presided over the conference, at which the parties reached agreement as to acceptable terms of a decision in the proceedings, which involved the Court upholding the appeal and granting consent to the development application subject to conditions. As a result, the matter concluded in conciliation and did not proceed to a hearing.

4. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application to reflect the outcome of the conciliation process.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that decision is one 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 development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified the in a jurisdictional note. From this I note the following points.

Jurisdictional matters

6. The development application was made with the written consent of the owner of the land.

7. The application was adequately notified from 7-21 June 2024. Twenty submissions were received, but no oral submissions were made at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in the written submissions. In particular, I note that the parties are satisfied that the proposed development does not rely on a sea wall, and the visual impact of the proposed development from the beach has been considered, and reduced through the conciliation process. The parties agree that the amended application does not necessitate renotification.

8. The subject site is zoned R2 Low Density Residential under the Central Coast Local Environmental Plan 2022 (CCLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

9. Demolition is permitted with consent pursuant to cl 2.7 of the CCLEP.

10. Pursuant to CCLEP cl 4.3, a maximum building height of 8.5m applies to the subject site. The proposed development, as amended, exceeds this at four points due to roof elements reaching heights of 8.98m, 9.04m, 9.24m and 9.31m, variations of between 5.6 to 9.5%.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1968a3182e68792d1398d2a9)

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