AB Holdings Company Pty Ltd v Central Coast Council [2026] NSWLEC 1523

Catchwords: DEVELOPMENT APPEAL – modification application – mixed use development – commercial premises – shop top housing – substantially the same development – conciliation conference – agreement between the parties – orders Land and Environment Court New South Wales Amendment notes Medium Neutral Citation: AB Holdings Company Pty Ltd v Central Coast Council [2026] NSWLEC 1523 Hearing dates: Conciliation conference held on 12 and 25 June and 17 July 2026 Date of orders: 18 August 2026 Decision date: 18 August 2026 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders that : (1) The appeal is upheld. (2) Modification Application DA/55789/2018/B for alterations and additions to the approved mixed use development commercial premises and shop top housing under DA/55789/2018 at 58-62 Araluen Drive, Hardys Bay, is determined by way of approval. (3) Development Consent No. DA/55789/2018 is modified by the terms in Annexure A. (4) Development Consent No. DA/55789/2018 as modified by the Court is Annexure B. Catchwords: DEVELOPMENT APPEAL – modification application – mixed use development – commercial premises – shop top housing – substantially the same development – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) , ss 4.55, 8.9 Land and Environment Court Act 1979 (NSW) , s 34 Biodiversity Conservation Regulation 2017 (NSW), Pt 7 Central Coast Local Environmental Plan 2022 Environmental Planning and Assessment Regulation 2021 (NSW) , ss 107, 113 Texts Cited: Central Coast Development Control Plan 2022 Category: Principal judgment Parties: AB Holdings Company Pty Ltd ACN 665897389 (Applicant) Central Coast Council (Respondent) Representation: Counsel: L Nurpuri (Applicant) S Patterson (Solicitor)(Respondent) Solicitors: Edmond Khoury Solicitors (Applicant) Finn Roache Lawyers (Respondent) File Number(s): 2025/484542 Publication restriction: No Judgment COMMISSIONER : This is a Clas s 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Modification A pplication DA /55789/2018/B seek ing to modify development consent granted for a mixed use development commercial premises and shop top housing ( Proposed Modification ) at 58-62 Araluen Drive Hardys Bay , legally described as Lot s 19-21 in D P 8830 (the Site). 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 has been held on 12 and 25 June and 17 July 2026 . I have presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and modifying the consent subject to conditions. Specifically, the Proposed Modification , as amended following discussions during the conciliation conference, seeks to modify the approved development as follows: Ground Floor : Reduce commercial floor areas and increase the size of front terraces; Reconfigure the lobby entrance; Provide additional excavation at the rear, including relocated stairs and lift; Reconfigure waste storage and service areas; and Provide a rainwater tank below the vehicular access driveway. First Floor : Reconfigure part of the internal layouts of the approved residential units (to remain as 2 x 3 bedroom units), minor footprint adjustments ; Minor reduction in the rear extent of the residential units, and lift relocation ; Reconfigure the car parking layout, and maintain 26 parking spaces as approved ; and Minor changes to the extent of excavation for the parking at the rear, part increase, part decrease. Second Floor : Remove Day Spa and Gym (approved under DA/55789/2018/A) ; Reconfigure the internal layouts of the approved residential units (to remain as 2 x 3 bedroom units), minor footprint adjustments, and increase size of Unit 3 ; Provide new terraces and planters to the side of each unit ; Increase excavation at the rear and provide residential storage cages and plant room ; and Increase size of communal open space area and provide a n additional planter at the front adjoining the pool. Third Floor : Extend the footprint to the north-west, towards the front, and provide additional terrace areas and planter garden beds ; Provide an additional unit on this level. The approval is for 1 x 3 bedroom unit, and it is proposed to provide 2 x 3 bedroom units ; Minor change to the extent of excavation at the rear, part increase, part decrease ; Provide a new terrace and planter on the south-western side of Unit 5; and Minor footprint adjustments. Fourth Floor : Extend the terrace areas and planter garden beds to the north-west, towards the front ; Reconfigure the internal layouts of the approved residential units (to remain as 2 x 3 bedroom units) ; Convert both units to two-level units Fifth Floor : New level, containing master bedrooms and terraces for the units on the fourth floor ; and Roof garden provided to the front, and parts of the sides, including landscaped privacy screening on the south-western side. A dditional street planting. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties ’ decision if the parties ’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. The parties ’ decision involves the Court exercising the function under s 4. 55 of the EPA Act to modify a consent. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in thes e proceedings to be the terms of s 4.55 of the EPA Act to modify a consent. The parties explained how the jurisdictional prerequisites have been satisfi ed in an agreed jurisdictional statement provided to the court. The m odification a pplication is made with the consent of the owner of the land , as evidenced by the Owner ’ s Consent form filed with the Class 1 Application: s 98(1) , E nvironmental Planning and Assessment Regulation 2021 (NSW) . The Site is zoned E1 Local Centre, and the development continues to be a permissible form of development with consent : Land Use Table, Central Coast Local Environmental Plan 2022 . The jurisdictional requirements are contained in s 4.55(2) of the EPA Act , which relevantly provides as follows : (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if— (a) it is satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with— (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. I am satisfied that t he development to which the consent as proposed to be modified relates, is substantially the same development as the development for which consent was originally granted (and before that consent as originally granted was modified). I note and adopt the Statement of Environmental Effects prepared by Coastal Planning and Consulting, and filed with the Class 1 Application which sets out an assessment of substantially the same. I also agree with the parties ’ explanation as follows: The Proposed Modification does no t change the approved uses under the original C onsent, and the development remains a mixed use development comprising ground level commercial premises with shop top housing units above within substantially the same scale and form as approved, with minor internal reconfigurations ; The proposal maintains a similar ground floor presentation as the approved development, with commercial floor space, courtyards and planter boxes facing Araluen Drive. Waste storage, service and amenity areas are maintained on the south-western and south-eastern sides of the commercial areas, as already approved ; The proposal maintains a similar ground floor footprint and setbacks compared to the approved development, with only minor additional excavation and reconfiguration at the rear ; There is a reduction in the impact caused by the development as originally approved, in that there is an i ncreased setback provided to the front walls of the commercial areas and the residential entry, with a corresponding increase in courtyard sizes, whilst still retain ing the essence of the approved development facing the street ; There is no change to the approved vehicular or pedestrian entry points to the development, and the proposal maintains a similar first floor configuration and presentation as already approved, with 2 residential units, with front facing terraces and planter boxes facing Araluen Drive. Car parking is provided behind the first floor residential units, the same as originally approved, with a slight increase to the number of parking spaces from 19 to 26 spaces . It is noted that t he Proposed Modification also removes the day spa and gym area on the second floor which were approved under an earlier modification to the original Consent (under DA/55789/2018/A ) , and returns the development to the uses approved under the original Consent ; The P ropos ed Modification provides a new fifth floor, containing master bedrooms for the units below, which is recessed behind the front and side setbacks of the approved fourth floor. Due to the topography of the Site this level does not increase the maximum number of storeys in the development , and the proposal results in only a minor increase of 276m 2 (or 17%) in gross floor area compared to plans approved by the original Consent. The maximum height of building of the development remains generally consistent with, and does not substantially increase the approved maximum height of building. Since the granting of the original Consent, in October 2024 the vegetation on the Site was added to the Biodiversity Values Map ( BVM ) prepared by NSW Department of Climate Change, Energy, the Environment and Water (as it now is known) under Pt 7 of the Biodiversity Conservation Regulation 2017 (NSW). Though the MA proposes to increase the footprint of the development into the BVM area, no tree removal is proposed, consistent with the original Consent. There is no clearing of any native vegetation, however, the proposal is nevertheless supported by a B iodiversity Development Assessment Report as required as the proposal increased the footprint of the development into areas mapped on the biodiversity values map. Accordingly, for these reasons, the Court is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted (and before that consent as originally granted was modified). No consultation is necessary as the development is not Integrated Development and no conditions were imposed in the original Consent as a requirement of concurrence or through general terms of approval : s 4.55(2)(b), EPA Act. In accordance with s 107(2) of the E nvironmental Planning and Assessment Regulation 2021 and s 4.55(2)(c) of the EPA Act, the Proposed Modification was publicly notified between 23 May and 16 June 2025 in accordance with the Central Coast Development Control Plan 2022 . Twelve submissions were received. The submissions raised concerns in respect of traffic generation, view loss, stormwater impacts and excavation. Each of these matters has been considered by the parties, and by the Applicant in making amendments to the Proposed Modification. A ccordingly, t he requirements of ss 4.55(2)(c) and (d) of the EPA Act are met. I am satisfied that the parties ’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of th e LEC Act. I adopt the reasons given by the parties as set out in this judgment. As the parties ’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties ’ decision. Notations: The Court notes that : T he Respondent , as the relevant consent authority, has approved , pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW) the amendment of modification application filed with the Court on 14 December 2025 under s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) in accordance with the documents listed below: Amended Landscape Plans Plan name Drawing Ref Revision Date Prepared by Cover Sheet L001 A 7/6/2026 Justin Staggard Pty Ltd Existing Conditions L002 A 7/6/2026 Justin Staggard Pty Ltd Gr Fl Landscape Plan L003 A 7/6/2026 Justin Staggard Pty Ltd 1 st Fl landscape Plan L004 A 7/6/2026 Justin Staggard Pty Ltd 2 nd Fl landscape Plan L005 A 7/6/2026 Justin Staggard Pty Ltd 3 rd Fl landscape Plan L006 A 7/6/2026 Justin Staggard Pty Ltd 4 th Fl landscape Plan L007 A 7/6/2026 Justin Staggard Pty Ltd 5 th Fl landscape Plan L008 A 7/6/2026 Justin Staggard Pty Ltd Landscape Information L009 A 7/6/2026 Justin Staggard Pty Ltd Planting Information L010 A 7/6/2026 Justin Staggard Pty Ltd Vehicle Plans Plan name Drawing ref Revision Date Prepared by Driveway DA38 - 2/7/2026 Architexture Car Parking Driveway - 2/7/2026 Architexture Amended Stormwater Plan Plan name Drawing Ref Revision Date Prepared by Ground floor Stormwater Drainage Plan D01 B 26/2/2026 Smart Structures Australia Amended Reports Report name Date Prepared by Biodiversity Development Assessment Report Rev C 18/5/2026 Fraser Ecological Resource and Wate Management Plan Form 2/6/2026 MRA Consulting Group Orders: The Court orders that : The appeal is upheld. Modification Application DA/55789/2018/B for alterations and additions to the approved mixed use development commercial premises and shop top housing under DA/55789/2018 at 58-62 Araluen Drive, Hardys Bay, is determined by way of approval. Development Consent No. DA/55789/2018 is modified by the terms in Annexure A. Development Consent No. DA/55789/2018 as modified by the Court is Annexure B. E Espinosa Commissioner of the Court ********** Annexure A (463 KB, pdf) Annexure B (593 KB, pdf) Architectural Plans (15.5 MB, pdf) Amendments 18 August 2026 - Architectural plans added. 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: 18 August 2026