Background
TDMS Studio appealed under s 8.7(1) of the Environmental Planning and Assessment Act 1979 against Central Coast Council’s refusal of Development Application No 1803/2025. The application concerned demolition of an existing commercial building and construction of a three-level commercial building, a centre-based child care centre for 149 children, parking and outdoor play areas at sites in William Street and Mann Street, Gosford.
At a conciliation conference conducted under s 34 of the Land and Environment Court Act 1979, the parties agreed on amended plans and proposed conditions of consent. The Council considered that its earlier contentions had been resolved by those amendments and conditions.
The Court’s Holding
Commissioner O’Neill held that the parties’ agreement was a decision the Court could make in the proper exercise of its functions, and therefore disposed of the appeal in accordance with that agreement. The Court upheld the appeal and granted development consent for the amended proposal, subject to the conditions in Annexure A.
The Court addressed the relevant jurisdictional constraints. The proposal complied with the applicable floor-space-ratio, parking, active-street-frontage, child-care-space and signage requirements; contamination could be remediated through conditions. Although the proposal exceeded 10.5-metre and 12-metre height standards, the Council’s agreement supported the required satisfactions under s 5.28(3) of the State Environmental Planning Policy (Precincts—Regional) 2021: compliance was unreasonable or unnecessary, and sufficient environmental planning grounds justified the contravention.
Key Takeaways
- A Class 1 merits appeal may be resolved through a s 34 conciliation agreement where the agreed outcome is one the Court could lawfully make.
- Amended plans and conditions resolved the Council’s contentions and supported consent for the mixed commercial and child-care development.
- A height-standard variation was accepted after the necessary statutory preconditions were satisfied.
Why It Matters
The decision illustrates the Land and Environment Court’s role in giving effect to a negotiated planning outcome after confirming that statutory constraints and jurisdictional preconditions have been met. It also shows that a height breach associated principally with rooftop access and amenity structures can be approved where supported by adequate planning grounds and conditions.