Fischer v Central Coast Council

Land and Environment Court New South Wales Medium Neutral Citation: Fischer v Central Coast Council [2026] NSWLEC 1495 Hearing dates: Conciliation conference on 15 July 2026 Date of orders: 07 August 2026 Decision date: 07 August 2026 Jurisdiction: Class 1 Before: Harding AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application DA/1695/2025, for the demolition of the existing dwelling and proposed construction of an attached dual occupancy at Lot 114 DP 10057, being 38 Bangalow Street, Ettalong Beach NSW 2257, is determined by the grant of consent subject to the conditions set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION – attached dual occupancy – amended plans – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7 Land and Environment Court Act 1979 (NSW), ss 34, 34AA Central Coast Local Environmental Plan 2022, cll 5.21, 5.22, 7.1, 7.6. Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 38 State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2, 4, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022 Category: Principal judgment Parties: Christian Fischer (Applicant) Central Coast Council (Respondent) Representation: Counsel: P Vergotis (Solicitor) (Applicant) S Simington (Solicitor)

(Respondent) Solicitors: Madison Marcus Law Firm (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2026/31648 Publication restriction: Nil Judgment COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by Mr Fischer (the Applicant) against the deemed refusal of Development Application DA/1695/2025 (Development Application), lodged with the Central Coast Council (the Respondent), on 12 November 2025. The Development Application seeks development consent for the demolition of the existing dwelling, and ancillary structures, and the construction of an attached dual occupancy. The proposed development is to take place at 38 Bangalow Street, Ettalong Beach, NSW 2257. The proposed development is on land legally described as Lot 114 DP 10057 (Site). The Court arranged a conciliation conference between the parties pursuant to s 34AA of the of the Land and Environment Court Act 1979 (NSW) (the LEC Act). The conciliation conference commenced on 15 July 2026. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant development consent to the Development Application subject to agreed outcomes and conditions. In reaching agreement, the parties noted that amended plans resolved

matters raised in the Statement of Facts and Contentions. This has been achieved, in part, by the provision of amended documentation. The parties are satisfied that the required matters have been considered and are resolved by: the amended architectural plans (revision D), which reduce the bulk and scale of the development, improve the articulation and treatment of the facades and setbacks, and address privacy through screening; the amended landscape plans (Issue B) prepared by Conzept Landscapes, which provide a landscape plan showing compliant and accurate soft-landscaping areas and privacy screening along the side boundaries; the amended stormwater plans (revision P02); and the conditions of consent. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act. As the presiding Commissioner, I

am satisfied that the decision to grant development consent 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). In reaching that state of satisfaction, I have reviewed the required jurisdictional matters relevant to this decision. Central Coast Local Environmental Plan 2022 Pursuant to the Central Coast Local Environmental Plan 2022 (CCLEP 2022), the subject site is zoned R1 General Residential. The proposed dual occupancy is permissible in this zone. Regard has been given to the zone objectives in determining the application. Pursuant to cll 5.21 and 5.22 (flooding) of the CCLEP 2022, the Consent Authority must be satisfied as to certain criteria relating to flooding. The parties agree that the Site is not affected by flooding in the 1% Annual Exceedance Probability flood event. In the Probable Maximum Flood (PMF) event, the Site is affected at a level of RL 5.33 m Australian Height Datum (AHD), with a flood hazard at the Bangalow Street and laneway frontages of house 1. Consistent with a flood planning level equivalent to the PMF, the minimum floor level of habitable areas is set at RL 5.33 m AHD. The parties are satisfied that the development is compatible with the flood function and behaviour on the land, will not adversely affect flood behaviour or the environment, incorporates appropriate measures

to manage risk to life, and does not adversely affect the safe occupation and efficient evacuation of people, evacuation being available to the east and west along the Bangalow Street frontage and to the rear laneway in a flood event. As a result of the assessment undertaken by the parties, I am satisfied that the required matters in cl 5.21 have been considered, and where necessary, have been satisfied. The parties also agree that the requirements of cl 5.22 have been met because they are satisfied that the development will not adversely affect the safe occupation and efficient evacuation of people in a flood event. The development incorporates appropriate measures to manage risk to life, and will not adversely affect the environment, having regard to the stormwater management plans and the evacuation routes available from the Site. Pursuant to cl 7.1 of the CCLEP 2022 – Acid sulfate soils, the consent authority is required to consider any potential acid sulfate soils works that might disturb, expose or drain acid sulfate soils and cause environmental damage. The parties agree that the Site is located within a Class 4 area as specified in the CCLEP 2022 Acid Sulfate Soils Map. The parties agree, and I am satisfied, that no works are proposed more than 2 metres below the natural ground surface, and no works are proposed by which the water table is likely to be lowered more than

2 metres below the natural ground surface. Accordingly, an acid sulfate soils management plan is not required. Clause 7.6 of the CCLEP 2022, essential services, applies to the Site. The parties are satisfied that the services essential for the development — the supply of water and electricity, the disposal and management of sewage, stormwater drainage, suitable vehicular access and the collection and management of waste — are available to the Site, or that adequate arrangements have been made for them to be made available when required. It is for these reasons that I am satisfied that the requirements of cl 7.6 have been met. State Environmental Planning Policy (Sustainable Buildings) 2022 The Development Application is accompanied by an amended BASIX Certificate. The parties are satisfied, as am I, that the requirements in s 27 of the Environmental Planning and Assessment Regulation 2021 (NSW) have been met. State Environmental Planning Policy (Resilience and Hazards) 2021 Chapter 2 (Coastal Management) of State Environmental Planning Policy (Resilience and Hazards) 2021 (RHSEPP) applies to the Site. The Site is located within the coastal environment area but outside the coastal use area. The parties agree that the proposed development is unlikely to cause an adverse impact on the integrity and resilience of the biophysical, hydrological and ecological environment of the

coastal environment area, and that any such impact is minimised, in particular through the stormwater management measures the subject of the Stormwater Plans. Chapter 4 (Remediation of land) of RHSEPP also applies to the Site. This chapter requires the consent authority, pursuant to s 4.6, to consider whether the Site is contaminated and, if it is, to be satisfied that the Site is suitable in its contaminated state (or will be suitable after remediation) for the proposed use. The parties agree that the Site is not identified as a contaminated site. The historical residential use of the Site does not suggest a likelihood of contamination, and no contamination report is required. The parties are satisfied that the Site is suitable, as it stands, for the development proposed. I am satisfied, that the required considerations have been undertaken. Other Matters The proposal was notified by the Respondent between 28 November 2025 and 12 December 2025. No submissions were received. 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’ agreement. I was not required to make, and have not made, an 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. The Court notes that: Central Coast Council, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending the Development Application No. DA/1695/2025 in accordance with the following amended plans and reports: Architectural Plans prepared by Gardiner Architects: Plan Title Reference Revision Date Cover Sheet & Site Context DA.00 D 5 June 2026 Existing Site Plan DA.01 D 5 June 2026 Proposed Site Plan DA.02 D 5 June 2026 Proposed Plans – Ground Floor DA.03 D 5 June 2026 Proposed Plans – First Floor DA.04 D 5 June 2026 Elevations DA.05 D 5 June 2026 Elevations DA.06 D 5 June 2026 Sections DA.07 D 5 June 2026 3DS DA.08 D 5 June 2026 Garage Turning Circle DA.09 D 5 June 2026 Shadow Diagrams – June DA.10 D 5 June 2026 Area Plan DA.11 D 5 June 2026 Windows Schedule DA.12 D 5 June 2026 Stormwater Plans prepared by S&G Consultants: Plan Title Reference Revision Date Cover Sheet & Drawing Index S01-SW100 P02 22 June 2026 Notes & Legend S01-SW101 P02 22 June 2026 Erosion & Sediment Control Plan & Details S01-SW201 P02 22 June 2026 Stormwater Concept Design Ground Plan S01-SW301 P02 22 June 2026 Stormwater Concept Design Raingarden Details S01-SW401 P02 22 June 2026 Landscape Plans prepared by Conzept Landscapes: Plan Title Reference Revision Date Hardscape Plan LPDA 26

– 67/1 Issue B 15 June 2026 Landscape Plan LPDA 26 – 67/2 Issue B 15 June 2026 Planting Palettes LPDA 26 – 67/3 Issue B 15 June 2026 Details LPDA 26 – 67/4 Issue B 15 June 2026 Specification LPDA 26 – 67/5 Issue B 15 June 2026 Orders The Court orders that: The appeal is upheld. Development Application DA/1695/2025, for the demolition of the existing dwelling and proposed construction of an attached dual occupancy at Lot 114 DP 10057, being 38 Bangalow Street, Ettalong Beach NSW 2257, is determined by the grant of consent subject to the conditions set out in Annexure A. S Harding Acting Commissioner of the Court Annexure A (372 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: 07 August 2026