Australia, Jan. 31 -- New South Wales Land and Environment Court issued text of the following judgement on Jan. 6:

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of development application DA/422/2024. The development application, as amended, seeks consent for the demolition of existing structures and construction of a two storey multi dwelling housing development, comprising of 3 dwellings and 5 car parking spaces with associated earthworks and retaining walls. The development is proposed at 7 Berith Street, Umina Beach (Lot 45 in DP7807).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on 18 November 2024. I presided over the conciliation conference. At the conciliation conference, agreement was reached between the parties as to the terms of a decision that would be acceptable to them. This agreed decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 10 December 2024.

3. 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). I form this state of satisfaction on the basis that:

1. The site the subject of the development application is owned by the Applicant, Peninsula Capital Holdings Pty Ltd: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2. The development application was first notified by the Applicant between 19 April and 13 May 2024 in accordance with the Central Coast Community Engagement Plan 2021. No submissions were received during the notification period. The amended development application was not renotified as the Respondent formed the view that the amendments to the development did not increase its environmental impacts, in accordance with section 23 of Schedule 1, Part 2 of the EPA Act. I accept that finding.

3. Pursuant to s 2.3 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), Chapter 2 'Vegetation in Non Rural Areas' applies to the development application. The proposed tree removal has been assessed in the arboricultural assessment which forms part of the development application. That assessment concludes that the proposed removal of the nominated trees is consistent with the provisions of SEPP BC when consideration is given to the tree species, integrity, level of significance and replacement planting proposed in the landscaping strategy for the site. I accept, that the relevant provisions of Chapter 2 of SEPP BC are met.

4. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that the land the subject of the development application has been historically utilised for residential use. There are no known previous uses that would lead to the site being contaminated or unsuitable for ongoing use for residential purposes. The development application does not propose a change of use. The parties agree and I accept that s 4.6 of the SEPP RH is satisfied.

5. The amended development application is accompanied by a complying BASIX Certificate No. 1774201M dated 21 November 2024. A condition of consent requires compliance with the commitments detailed in the BASIX certificate.

6. The Central Coast Local Environmental Plan 2022 (LEP 2022) is the applicable environmental planning instrument to the Site. The land is zoned R1 General Residential under LEP 2022 and multi dwelling housing is permissible with consent in the zone.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19415d7e3c8eda2914a52682)

Disclaimer: Curated by HT Syndication.