A developer has used the Land and Environment Court to gain four development approvals after using the “deemed refusal” rule from Central Coast Council.
Three of the developments approved are on the Woy Woy peninsula and the fourth one is at Blue Bay.
A deemed refusal means the Council has not made a decision on a development application (DA) within 60 days of the applicant lodging it.
An applicant can appeal the deemed refusal in the NSW Land and Environment Court within six months of the deemed refusal date.
But the window to take it to court closes after that date and so developers must act within the six months to use “deemed refusal”.
Council-under-administration is not meeting its targets in dealing with development applications.
The targets in this year’s operational plan call for all development application categories to be determined in less than 40 calendar days using median figures.
In March 2023, Council noted a 52 per cent increase in community complaints compared to the same period a year earlier.
The main contributor was the Environment and Planning Department which deals with DAs.
The planning department had a 155 per cent increase in community complaints.
A third of those were about development application assessments, in particular general delays and lack of communication.
In these four cases with the one applicant, the Land and Environment Court ruled on all four addresses separately but all went through the same process.
The parties underwent conciliation conferences late last year where amendments to designs were agreed upon between the applicant and Council.
Then four different commissioners dealt with the matters in November and December saying that the Court accepted the agreements.
“Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought,” one judgement states.
All four cases had the same outcome.
The applicant, Andrey Vinogradov, was ordered to pay costs of $12,000 to the respondent, Central Coast Council, for costs on each of the cases.
The four outcomes saw: approval for the demolition of existing structures and the construction of three two-storey units at 33 Burrawang St, Ettalong Beach; and the same for 21 Burrawang St, Ettalong Beach; approval for demolition of the existing structures and construction of a multi dwelling housing development, consisting of three dwellings, landscaping and associated works at 102 Bay Rd, Blue Bay; and approval for the demolition of existing structures and the construction of three two-storey units, including associated landscaping, at 34 Picnic Pde, Ettalong Beach.
Other developers are taking a similar route.
One applicant received permission for a dual occupancy at 100 Berkeley Rd, Fountaindale, after going to the Court with a deemed refusal.
Another got development approval for a two-storey 130-place childcare centre at 2 Wyreema Rd, Warnervale, after going to court with a deemed refusal.
Between April 20 and December 29, 2023, there were at least 17 appeals determined in the Land and Environment Court, of which 13 resulted in “agreement between parties”.
Typically, amended plans would have likely been submitted during proceedings.
For developers, the process means the Court sets the timetable that both parties follow.
On Monday, January 29, Council was scheduled for 20 time slots in the next three weeks in Land and Environment Court cases involving a number of different developers.
Developers have been public in their frustrations trying to get DAs approved.
One architect wrote to the Local Planning Panel (LPP) in April 2023 complaining about a development application that had been lodged more than two years and three months earlier.
“….during that period numerous Council and consultant planners, including the Department of Planning, started assessments, most of the time, it appeared, starting from scratch,” the letter to the LPP stated.
“A variety of feedback was provided by the varying assessing officers throughout the process.
“There were also extensive delays with the application because of the inability for the applicant to meet with Council staff, face to face, and the staff shortages within the Council framework.
“During the assessment process, we have made a genuine effort to address and resolve all issues raised by Council.”
Coast Community News asked Council what plans it had to stop applications becoming “deemed refusals”.
“Applicants can assist in the timely assessment of development applications by lodging high-quality development applications that contain all the required information, comply with the planning framework, and do not require redesign/amendment to ensure the application is capable of being supported,” Council said.
Merilyn Vale