32 Bay Pty Ltd v Central Coast Council [2026] NSWLEC 1114

Catchwords: DEVELOPMENT APPLICATION — demolition and new residential flat building — conciliation conference — amended plans and documents — agreement between the parties — orders made. Land and Environment Court New South Wales Medium Neutral Citation: 32 Bay Pty Ltd v Central Coast Council [2026] NSWLEC 1114 Hearing dates: Conciliation conference 17 December 2025 Date of orders: 12 March 2026 Decision date: 12 March 2026 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld . (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) , the Applicant is to pay the Respondent ’ s costs thrown away as a result of the amended application in the agreed amount of $5,000. (3) Development Application DA/2092/2024 for the demolition and construction of a residential flat building (10 apartments) with ground floor carparking on land described as Lot 14 in DP21024, known as 32 Bay Road, The Entrance is determined by the grant of consent subject to the conditions set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION — demolition and new residential flat building — conciliation conference — amended plans and documents — agreement between the parties — orders made. Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7, 8.15 Land and Environment Court Act 1979 (NSW), s 34 Central Coast Local Environmental Plan 2022, cll 2.3, 2.7, 4.6, 7.6 Environmental Planning and Assessment Regulation 2021 (NSW), ss 23, 37, 38 State Environmental Planning Policy (Housing) 2021, Chs 4, 6, ss 144, 164, 174, 176, 177, 180 State Environmental Planning Policy (Resilience and Hazards) 2021, Div 4, ss 2.11, 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022 Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 Texts Cited: Central Coast Development Control Plan 2022 Category: Principal judgment Parties: 32 Bay Pty Ltd (Applicant) Central Coast Council (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicant) M Ball (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Central Coast Council (Respondent) File Number(s): 2025/278141 Publication restriction: No JUDGMENT COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) by 32 Bay Pty Ltd (the Applicant) against the deemed refusal of the development application DA /2092/2024. The development application, as amended, seeks consent for demolition of existing structures and construction of a residential flat building containing 10 apartments over basement parking. The development is proposed at 32 Bay Road, The Entrance (Lot 14 in DP 21024). 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 17 December 2025. Following the conciliation conference, the Applicant made amendments to its development application responsive to the Respondent's contentions and the parties reached agreement based on the amended development application. The parties ’ agreement is for the grant of consent to the application, as amended, subject to the conditions in Annexure A. This agreement meets the first condition to the exercise of power and obligation of a commissioner to dispose of the proceedings in accordance with the decision of the parties (this being the test applied by s 34(3) of the LEC Act): see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 ( McMillan ) at [51 ]. As the presiding Commissioner, I am satisfied that the second condition is met, that being the decision is one that the Court can make in the proper exercise of its functions: see McMillan at [51]. I form this state of satisfaction on the basis that: The owner of the Site, 32 Bay Pty Ltd, is the Applicant of the Development Application and landowner consent was provided at the time of lodgement of the development application: s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation). The Development Application was notified by the Respondent from 28 February to 21 March 2025. No submissions were received. Pursuant to State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) the site is mapped as Coastal Use Area. Division 4, s 2.11 of the SEPP RH outlines requirements for the development on land within the coastal use area. The Statement of Environmental Effects (SEE) which accompanies the development application includes an assessment of the development against the matters listed at s 2.11(a) of SEPP RH. With the assistance of the SEE and the architectural plans I accept the agreement of the parties that I can be satisfied that the development is designed, sited and will be managed to avoid an adverse impact on the following: (i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability, (ii) overshadowing, wind funnelling and the loss of views from public places to foreshores, (iii) the visual amenity and scenic qualities of the coast, including coastal headlands, (iv) Aboriginal cultural heritage, practices and places, and (v) cultural and built environment heritage. Section 4.6 of SEPP RH requires the consent authority to consider the contamination of the land when determining the development application. The SEE nominates that a review of historical documents indicates that the site has had long term residential usage. The parties agree, and I accept, that there is no evidence indicating the site may be contaminated. Further, the use of the site is proposed to remain as residential. On the basis of the preceding, and the annexed conditions, I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under the application. State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) applies to the proposed development. The development application is accompanied by an updated BASIX certificate in compliance with the Sustainable Buildings SEPP. The development application is subject to the provisions of State Environmental Planning Policy (Housing) 2021 ( SEPP Housing ) in two parts. Firstly , at Ch 4 as it proposes residential flat development (and meets the matters at s 144(3)), and secondly at Ch 6 as the deve lopment is proposed in a ‘ low to mid rise housing inner area ’ as mapped by the instrument. The development application is made pursuant to Ch 6 ‘ Low and Medium rise Housing ’ in SEPP Housing. The Central Coast Local Government Area is a location where the policy applies: s 164(1) of SEPP Housing. Further, the site is located within 800m of The Entrance Town Centre which meets the definition of a low and mid rise housing outer area. Finally, pursuant to s 174 of the SEPP Housing, development for the purpose of a residential flat building is permitted with consent on the site as it is located in R3 Medium Density Zone. Section 176 of SEPP Housing outlines the development standards for land in the R3 Medium Density Residential zone. Pursuant to s 176(2) of SEPP Housing , development consent must not be granted to residential flat development i f a resulting building will have a building height of up to 17.5m unless the consent authority is satisfied that the building will have 4 storeys or fewer . The amended development application seeks approval for a building height of 19.01m and six storeys. Accordingly, the development application is accompanied by a written request pursuant to cl 4.6 of the Central Coast Local Environmental Plan 2022 (LEP 2022) to vary the development standard at s 176(2) of SEPP Housing. I find that the written request prepared by GAT & Associates dated February 2026 is well founded and adequately addresses the breach of the height and storeys standard and the matters listed in cl 4.6 of LEP 2022. I am satisfied that the written request has demonstrated that there are sufficient environmental planning grounds and that compliance is unnecessary or unreasonable. In determining the development application, I have considered the ‘ Tree Canopy Guide for Low and Mid Rise Housing ’ (the Guide), published by the Department in 2025. I accept the agreed submission of the parties that the quantum of deep soil planting , c anopy cover and provision for tree planting in the development is consistent with the Guide. Section 177 of SEPP Housing is satisfied. Sectio n 180(3) of SEPP Housing contains several non-discretionary development standards which are met by the development application as follows: The amended development application has a floor space ratio that is compliant with the standard of 1.5:1. The amended development application relies on a written request to vary the maximum building height standard of 17.5m at s 180(3)(b) of SEPP Housing. The maximum height proposed is 19.01 m and the development application relies on a written request to vary the standard pursuant to cl 4.6 of LEP 2022. I find that the written request prepared by GAT & Associates dated February 2026 is well founded and adequately addresses the breach of the height standard and the matters listed in cl 4.6 of LEP 2022. I am satisfied that the written request has demonstrated that there are sufficient environmental planning grounds and that compliance is unnecessary or unreasonable. The Central Coast Local Environmental Plan 2022 (LEP 2022) applies to the land. Pursuant to LEP 2022, the site is zoned R3 Medium Density Residential, and development for the purpose of a residential flat building is permitted with consent in the zone . As required by cl 2.3 of LEP 2022, in determining the development application, I have given consideration to the objectives of the zone. Pursuant to cl 2.7 of LEP 2022 demolition is permitted with consent in the zone. Pursuant to cl 7.6 of LEP 2022 a consent authority must be satisfied that the services essential to the development are available, or that adequate arrangements have been made to make them available when required. Based on the SEE, and the fact that there are existing sewer and water supply services to the site, I am satisfied of the matters in cl 7.6(2) of LEP 2022 . The Central Coast Development Control Plan 2022 ( DCP 2022) applies to the site. The SEE 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 pursuant to s 4.15(1) of the EPA Act. 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 in s 34(3)(b) also requires me to "set out in writing the terms of the decision". 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 The Court notes that the Respondent, as the relevant consent authority, has agreed, under ss 37 and 38 of the EPA Regulation , to the Applicant amending Development Application No. DA/2092/2024 to include the documents set out below: Plan No. Revision No. Plan Title Drawn By Dated 00 F Cover Sheet Pti Architecture 18/02/26 01 F Project Summary 1 Pti Architecture 18/02/26 02 F Project Summary 2 Pti Architecture 18/02/26 03 F GFA & FSR Calculations Ground Floor Pti Architecture 18/02/26 04 F GFA & FSR Calculations Upper Floors Pti Architecture 18/02/26 05 F Location Plan Pti Architecture 18/02/26 06 F Site Analysis Pti Architecture 18/02/26 07 F Site Plan Pti Architecture 18/02/26 08 F Ground Floor Plan 1:200 Pti Architecture 18/02/26 09 F Ground Floor Plan 1:100 Pti Architecture 18/02/26 10 F Level 1 Floor Plan Pti Architecture 18/02/26 11 F Level 1 Floor Plan Post Adaptable Pti Architecture 18/02/26 12 F Level 2-3 Floor Plan Pti Architecture 18/02/26 13 F Level 4 Floor Plan Pti Architecture 18/02/26 14 F Roof Plan Pti Architecture 18/02/26 15 F Sections 1 Pti Architecture 18/02/26 16 F Sections 2 Pti Architecture 18/02/26 16.1 F Sections 2 Continued. Pti Architecture 18/02/26 17 F Elevations North Pti Architecture 18/02/26 18 F Elevations East Pti Architecture 18/02/26 19 F Elevations South Pti Architecture 18/02/26 20 F Elevations West Pti Architecture 18/02/26 21 F Shadow Diagram June 21 9AM Pti Architecture 18/02/26 22 F Shadow Diagram June 21 11AM Pti Architecture 18/02/26 23 F Shadow Diagram June 21 12 Noon Pti Architecture 18/02/26 23.1 F Shadow Diagram June 21 1PM Pti Architecture 18/02/26 23.2 F Shadow Diagram June 21 2PM Pti Architecture 18/02/26 24 F Shadow Diagram June 21 3PM Pti Architecture 18/02/26 25 F Windows Schedule 1 Pti Architecture 18/02/26 26 F Windows Schedule 2 Pti Architecture 18/02/26 27 F Artist Impression Pti Architecture 18/02/26 28 F Sun Eye Diagrams Pti Architecture 18/02/26 29 F Sun Eye Diagrams Pti Architecture 18/02/26 L-01 H Cover Sheet Sitedesign+Studios 19/02/26 L-02 H Rear Landscape Plan Sitedesign+Studios 19/02/26 L-03 H Front Landscape Plan Sitedesign+Studios 19/02/26 L-04 H Rear Planting Plan Sitedesign+Studios 19/02/26 L-05 H Front Planting Plan Sitedesign+Studios 19/02/26 L-06 H Level 4 Planting Plan Sitedesign+Studios 19/02/26 L-07 H Roof Level Plan Sitedesign+Studios 19/02/26 L-08 H Planting Details Sitedesign+Studios 19/02/26 L-09 H Existing Tree Sitedesign+Studios 19/02/26 L-10 H Notes Sitedesign+Studios 19/02/26 C01 5 Sedimentation and Erosion Control Plan MPC Consulting Engineers 17/02/26 C02 1 Sedimentation and Erosion Control Details MPC Consulting Engineers 17/02/26 C03 5 Stormwater Plan MPC Consulting Engineers 17/02/26 C04 4 Stormwater Section MPC Consulting Engineers 17/02/26 T01 3 Turning Path Entry Plan Sheet 1 MPC Consulting Engineers 17/02/26 T02 3 Turning Path Entry Plan Sheet 2 MPC Consulting Engineers 17/02/26 T03 3 Turning Path Entry Plan Sheet 3 MPC Consulting Engineers 17/02/26 T04 3 Turning Path Exit Plan Sheet 1 MPC Consulting Engineers 17/02/26 T05 3 Turning Path Exit Plan Sheet 2 MPC Consulting Engineers 17/02/26 T06 3 Turning Path Exit Plan Sheet 3 MPC Consulting Engineers 17/02/26 T07 3 Turning Path Plan Refuse Collection MPC Consulting Engineers 17/02/26 Document Title Version No. Prepared by Dated Apartment Design Guide & State Environment Planning Policy (Housing) 2021 Design Verification Statement PTI Architecture 18/02/26 Clause 4.6 Variation – Low and Mid Rise Housing Outer Area (Height of Buildings and Number of Storeys) 2.0 GAT & Associates February 2026 Basix Certificate No. 1776494M_04 Evergreen Energy Consultants Pty Ltd 24/02/2026 The Court orders that: The appeal is upheld . Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) , the Applicant is to pay the Respondent ’ s costs thrown away as a result of the amended application in the agreed amount of $5,000. Development Application DA/2092/2024 for the demolition and construction of a residential flat building (10 apartments) with ground floor carparking on land described as Lot 14 in DP21024, known as 32 Bay Road, The Entrance is determined by the grant of consent subject to the conditions set out in Annexure A. D Dickson Commissioner of the Court Annexure A (264 KB, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 March 2026