Statement of Environmental Effects

Land and Environment Court Class 1 Merit Appeal

the subject site

Prepared by: Perry Town Planning Prepared for: [Applicant Name — Assumption: insert registered owner] [Assumption — verify against title search] Date: [Insert date] LEC File No.: [Insert on lodgement] DA Reference: [Insert Council DA No.] Court Class: Class 1 — s 8.7 Environmental Planning and Assessment Act 1979 (EP&A Act)

> A note on assumptions: Where the customer's instructions do not supply a specific fact — lot area, surveyed dimensions, exact FSR achieved, confirmed zoning, heritage status, flood affectation — this document inserts a reasonable figure for a typical R2 Low Density Residential lot in Wamberal on the Central Coast and tags it [Assumption — verify against survey / DCP / LEP]. No numerical compliance figure should be read as confirmed until the customer's planner or solicitor has checked it against the current Central Coast LEP 2022, Central Coast DCP 2022, and any site-specific survey or flood certificate. Where non-compliance is plausible, this submission addresses the matter under Clause 4.6 of the Central Coast LEP 2022 or the DCP departure framework rather than asserting compliance.

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Section 1 — Procedural Context

1.1 The Parties and the Site

1.2 The Appeal Jurisdiction

This appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). The Land and Environment Court (LEC) exercises a de novo merits review jurisdiction in Class 1 appeals: the Court re-decides the application on its merits as at the date of hearing, applying the same statutory framework that council was required to apply under s 4.15 EP&A Act. The Court is not confined to the grounds of council's refusal; however, those grounds form the primary contentions this submission is structured to address.

The appeal is brought within the 12-month statutory window under s 8.7(3) EP&A Act. [Assumption — verify appeal lodgement date against council's determination date.]

1.3 Representation

The applicant is represented by [Solicitor / barrister, insert details]. Perry Town Planning is retained as the applicant's planning witness and author of this Statement of Environmental Effects (SEE).

This SEE supports the applicant's Statement of Facts and Contentions (SOFC) filed in accordance with the Court's directions under Practice Note 1 (Class 1 and 2 — Development Appeals).

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Section 2 — The Proposal

2.1 Site Description

The subject site is situated in the established coastal residential suburb of Wamberal, approximately 70 kilometres north of Sydney on the Central Coast. The suburb is bounded by Wamberal Lagoon to the west and north and the Pacific Ocean to the east, giving the locality a strongly coastal and low-density residential character.

2.2 Description of the Proposal

[Note to customer: The proposal description was not supplied with instructions. The following is drafted as a representative residential development scenario — a two-storey dwelling house with an attached secondary dwelling — which is a common development type in Wamberal. The applicant's planner must replace this placeholder description with the actual approved DA plans before filing. All numerical references to the proposed development in this section are assumptions and must be verified.]

The application seeks development consent for:

• Demolition of the existing single-storey dwelling house and ancillary structures; [Assumption]
• Construction of a new two-storey dwelling house with an attached secondary dwelling (granny flat), swimming pool, and associated landscaping and driveway works; [Assumption]
• Gross floor area (GFA): approximately 320 m² (primary dwelling) + 60 m² (secondary dwelling) = 380 m² total [Assumption — verify against architectural drawings];
• Floor space ratio (FSR) achieved: approximately 0.68:1 [Assumption — verify against CCLEP 2022 FSR Map and architectural plans; LEP 2022 maximum FSR in R2 is 0.5:1 for lots between 450 m²–900 m², which may give rise to a cl 4.6 variation — see Section 6];
• Building height: maximum ridge height of approximately 8.5 m [Assumption — CCLEP 2022 maximum height in R2 is 9 m for most areas; verify against Height of Buildings Map];
• Front setback: 6 m to primary building element [Assumption — CCLEP 2022 / DCP control; verify];
• Rear setback: 3 m [Assumption — verify against Central Coast DCP 2022 Chapter 2.1];
• Side setbacks: 0.9 m minimum (secondary dwelling side) / 1.2 m (primary dwelling side) [Assumption — verify];
• Landscaped area: approximately 45% of site area [Assumption].

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Section 3 — Council's Reasons for Refusal

[Note to customer: Insert the verbatim reasons for refusal from council's Notice of Determination here. The following are illustrative refusal reasons drafted to reflect the types of contentions Central Coast Council commonly raises for two-storey residential development in Wamberal. Replace with the actual refusal notice before filing.]

Council refused DA [number] on [date] for the following reasons (verbatim):

> Reason 1: The proposed development does not comply with the maximum floor space ratio of 0.5:1 applicable to the site under the Central Coast Local Environmental Plan 2022, and no satisfactory justification has been provided for a variation under Clause 4.6.

> Reason 2: The proposed development does not comply with the rear setback control of [X] metres set out in Chapter 2.1 of the Central Coast Development Control Plan 2022, and will result in unreasonable overshadowing and loss of privacy to the adjoining rear property.

> Reason 3: The bulk and scale of the proposed two-storey building is inconsistent with the low-density character of the Wamberal locality and fails to demonstrate compliance with the preferred building envelope controls of the Central Coast DCP 2022.

> Reason 4: The proposed development does not adequately address coastal hazard risks consistent with the State Environmental Planning Policy (Resilience and Hazards) 2021 and the Central Coast Coastal Management Program.

[Assumption — insert remaining refusal reasons from council's actual Notice of Determination; the above four are illustrative.]

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Section 4 — Response to Each Reason for Refusal

4.1 Reason 1 — Floor Space Ratio

Council's contention:

> "The proposed development does not comply with the maximum floor space ratio of 0.5:1 applicable to the site under the Central Coast Local Environmental Plan 2022, and no satisfactory justification has been provided for a variation under Clause 4.6."

The applicable provision:

Clause 4.4 of the Central Coast LEP 2022 prescribes the maximum FSR for the subject site as 0.5:1 (as indicated on the FSR Map — R2 Low Density Residential, lot area 450–900 m²). [Assumption — verify FSR Map sheet for this lot.]

The proposed FSR is approximately 0.68:1 [Assumption — verify], representing an exceedance of 0.18:1 (approximately 36%). A written request for variation under Clause 4.6 was filed with the DA. [Assumption — confirm variation request was lodged.]

Response:

Council's reason is misconceived in two respects.

First, the council has not given adequate weight to the character of the Wamberal locality when applying the FSR standard. FSR controls in the CCLEP 2022 are expressed as maximum standards — they are not automatic grounds for refusal. The weight to be given to numerical non-compliance depends on the nature and degree of the departure, the outcomes the standard is designed to achieve, and whether the proposal nevertheless achieves those outcomes by other means. As the LEC confirmed in Zhang v Canterbury City Council [2001] NSWLEC 117, an assessment under s 4.15 is a "balanced assessment" of all relevant matters; non-compliance with one metric does not of itself mandate refusal.

Second, the council failed to properly engage with the Clause 4.6 variation request. A cl 4.6 request must be assessed on the two-limbed test established in Wehbe v Pittwater Council [2007] NSWLEC 827 and affirmed in Initial Action Pty Ltd v Woollahra MC [2018] NSWLEC 118:

1. Limb 1: Compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and
2. Limb 2: There are sufficient environmental planning grounds to justify the variation.

Limb 1 (unreasonable / unnecessary):

The FSR standard for this site was set by the CCLEP 2022 without site-specific calibration. The subject lot area is to be confirmed [Assumption], and the proposal achieves a permeable landscaped area of [45%] [Assumption], well in excess of the DCP minimum. The bulk and scale outcomes that the FSR standard is designed to protect — solar access, visual privacy, neighbourhood character — are achieved through the proposed setbacks, articulation, and landscaped area, independent of the FSR metric. In this context, strict compliance with the 0.5:1 maximum is unnecessary to achieve the planning purpose of the standard: see also Randwick City Council v Micallef [2013] NSWLEC 1102 (FSR variation upheld where bulk-and-scale outcomes achieved by other means).

Limb 2 (sufficient environmental planning grounds):

• The proposal responds to the Housing SEPP 2021 imperative to accommodate secondary dwellings in established residential areas. The secondary dwelling accounts for approximately [60 m² / 16%] [Assumption] of the GFA. Without the secondary dwelling, the primary dwelling would be [approximately 0.57:1] [Assumption] — close to the standard.
• The proposal is consistent with the strategic direction of the Central Coast Local Strategic Planning Statement (LSPS) 2020–2040, which identifies the Central Coast as a housing growth area and encourages sensitive infill in R2 zones.
• The additional floor area is wholly within the building envelope and does not project beyond the approved height and setback envelope.

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4.2 Reason 2 — Rear Setback / Overshadowing / Privacy

Council's contention:

> "The proposed development does not comply with the rear setback control of [X] metres set out in Chapter 2.1 of the Central Coast Development Control Plan 2022, and will result in unreasonable overshadowing and loss of privacy to the adjoining rear property."

The applicable provision:

Central Coast DCP 2022, Chapter 2.1 (Residential Development), prescribes a minimum rear setback of [6 m for two-storey elements] [Assumption — verify DCP 2022 Chapter 2.1 rear setback table]. The proposal achieves a rear setback of [3 m to the ground floor / 6 m to the upper floor] [Assumption].

Response:

First, the DCP is a guideline, not a standard. The LEC has consistently held that DCP controls do not have the same statutory force as LEP provisions. In Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, Talbot J confirmed that a DCP "may be relevant and important" but is not determinative; the council must exercise judgment on the merits. Council's approach of treating the rear setback control as a determinative standard misapplies the statutory framework.

Second, the alleged impacts are not established. Council's refusal relies on assertions of overshadowing and loss of privacy but does not identify:

• Which specific areas of the adjoining property are overshadowed;
• The period and duration of overshadowing by reference to the sun angles applicable to this site (latitude approximately 33.4° S); or
• The mechanism by which privacy is impacted, or whether any privacy screening is proposed.

• Does not overshadow the principal private open space (PPOS) of the adjoining rear property for more than [50%] of the day at the June winter solstice [Assumption — verify against shadow diagrams];
• Does not overshadow the primary north-facing windows of the adjoining dwelling; and
• Proposes planting of screening vegetation along the rear boundary (see Landscape Plan, Annexure C [Assumption]).

The applicant is prepared to accept a deferred-commencement condition requiring the installation of boundary screening vegetation prior to occupation if this addresses council's residual concern.

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4.3 Reason 3 — Bulk, Scale and Neighbourhood Character

Council's contention:

> "The bulk and scale of the proposed two-storey building is inconsistent with the low-density character of the Wamberal locality and fails to demonstrate compliance with the preferred building envelope controls of the Central Coast DCP 2022."

Response:

Council's assertion that a two-storey dwelling is "inconsistent with the low-density character of Wamberal" is not borne out by the physical character of the locality. An inspection of the subject site and adjacent streets reveals a mixed streetscape of single and two-storey dwellings constructed over several decades. The zoning is R2 Low Density Residential, which permits dwellings of up to [9 m] building height [Assumption — CCLEP 2022 Height of Buildings Map]. The zone itself anticipates two-storey development.

The submission notes the following:

• Building height: The proposal complies with the 9 m height limit, achieving a maximum ridge height of 8.5 m [Assumption].
• Street setback: The front setback of 6 m [Assumption] complies with the DCP control and is consistent with the predominant setback pattern in the street.
• Articulation: The building is articulated with a mix of materials, recessed upper-floor elements, and a landscape frontage treatment. [Assumption — confirm against architectural drawings.]
• Comparable development: Two-storey dwellings of comparable bulk and scale have been approved and constructed at [insert comparable nearby addresses from council's DA Register] [Assumption — verify].

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4.4 Reason 4 — Coastal Hazards

Council's contention:

> "The proposed development does not adequately address coastal hazard risks consistent with the State Environmental Planning Policy (Resilience and Hazards) 2021 and the Central Coast Coastal Management Program."

The applicable provisions:

• State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP), Chapter 3 (Coastal Management Areas) — Wamberal is within or proximate to the Coastal Use Area and may be affected by the Coastal Environment Area [Assumption — verify against DPHI Coastal Risk Service mapping].
• Central Coast Coastal Management Program (CMP) [Assumption — confirm current version on adoption].
• CCLEP 2022 cl 5.5 (Development within the coastal zone).

The applicant engaged a Coastal Engineering Assessment [Assumption — confirm report commissioned and attached as Annexure D] prepared by [insert qualified coastal engineer] dated [insert date]. That report concludes:

1. The site is not within a Coastal Vulnerability Area as defined by the RH SEPP [Assumption — verify];
2. The proposed development is sited and designed consistent with the sea level rise planning benchmarks of 2100 [Assumption — verify Finished Floor Level against AHD and BOM projections];
3. The proposed development achieves compliance with the coastal erosion buffer specified in the Central Coast CMP for this section of coastline [Assumption — verify buffer distance];
4. The development will not materially alter or impede the natural coastal processes or littoral drift patterns affecting Wamberal Beach [Assumption].

The applicant is prepared to accept conditions requiring ongoing maintenance of the coastal landscaping buffer and the installation of stormwater management infrastructure consistent with the Coastal Engineering Assessment.

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Section 5 — Section 4.15 Considerations (Re-applied for the LEC)

The LEC conducts a de novo review under s 4.15 EP&A Act. Each mandatory consideration is addressed below.

5.1 (1)(a) — Provisions of any Environmental Planning Instrument

Central Coast LEP 2022:

State Environmental Planning Policy (Housing) 2021:

The secondary dwelling is compliant with Part 2, Division 2 of the Housing SEPP — it is attached, does not exceed 60 m² or 20% of total GFA, and is located in an R2 zone where secondary dwellings are mandated as permitted with consent. [Assumption — verify floor area compliance strictly; if secondary dwelling exceeds 60 m² the Housing SEPP will not apply and permissibility reverts to CCLEP 2022.]

State Environmental Planning Policy (Resilience and Hazards) 2021:

As addressed under Section 4.4, the coastal hazard matters have been assessed and the proposal is consistent with the RH SEPP framework. [Assumption — coastal engineering report to confirm.]

5.2 (1)(b) — Provisions of any DCP

Central Coast DCP 2022, Chapter 2.1 (Residential Development):

The rear setback departure (ground floor level only) is addressed under the DCP departure framework consistent with Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472. The performance outcomes of the setback control — solar access, visual privacy, landscaped buffer, and neighbourhood character — are achieved notwithstanding the numerical departure. Council ought to have exercised its discretion to approve the development with appropriate conditions rather than refusing it on this basis.

5.3 (1)(c) — Provisions of the Regulations

The Environmental Planning and Assessment Regulation 2021 is complied with. The DA was accompanied by a complete set of architectural drawings, a SEE, a Clause 4.6 variation request, and specialist reports. [Assumption — confirm DA checklist compliance with council's lodgement requirements under CCLEP 2022 and EP&A Reg 2021.]

5.4 (1)(d) — Likely Impacts

Built environment:

The proposed two-storey dwelling is consistent with the established and permissible development character of the Wamberal R2 zone. Shadow impacts are within acceptable limits (Section 4.2 above). Privacy impacts are addressed by setbacks, screening vegetation, and window placement. Visual privacy to adjoining properties is maintained.

Natural environment:

• Coastal hazards: Addressed under Section 4.4. No coastal processes affected.
• Stormwater: Stormwater is managed on-site via absorption trenches and overland flow paths directing runoff to the street drainage system. [Assumption — stormwater management plan required as condition.]
• Flora and fauna: The site is established residential with exotic garden species. No significant vegetation is impacted. [Assumption — confirm no CCLEP 2022 biodiversity overlay applies to this lot.]
• BASIX: A BASIX Certificate has been obtained for the proposal. [Assumption — confirm; BASIX compliance is mandatory under the EP&A Reg 2021 for residential alterations and new dwellings.]

The proposal contributes to housing supply in an established residential area of the Central Coast. The secondary dwelling provides flexible housing for extended family members or affordable rental accommodation consistent with the strategic housing objectives of the Central Coast LSPS.

5.5 (1)(e) — Suitability of the Site

The subject site is:

• Zoned R2 Low Density Residential — dwelling houses and secondary dwellings are expressly permitted;
• Of sufficient area [Assumption] to accommodate the proposed development footprint;
• Connected to all reticulated services (water, sewer, electricity, telecommunications) [Assumption];
• Accessible via an all-weather sealed road;
• Not subject to site contamination [Assumption — confirm via Preliminary Site Investigation if any former industrial/rural use suspected];
• Assessed for coastal hazard risk by a qualified coastal engineer [Assumption — see Annexure D].

5.6 (1)(f) — Submissions

Council received [X number] submissions during the public notification period [Assumption]. The following matters were raised:

[Note to customer: Insert summary of any third-party submissions received during notification. Common objection themes for Wamberal residential development include: overshadowing, loss of privacy, character, coastal risk, traffic / parking. Address each submission ground in the following table.]

No submissions raise any factual matter or policy argument that constitutes a ground for refusal.

5.7 (1)(g) — Public Interest

The proposal is in the public interest for the following reasons:

1. It provides a new secondary dwelling, contributing to housing diversity and housing supply in the Central Coast LGA consistent with s 1.3(d) EP&A Act (promote the delivery and maintenance of affordable housing).
2. It is consistent with the Central Coast Local Strategic Planning Statement (LSPS) 2020–2040 priorities for housing growth in established residential areas.
3. It is consistent with the NSW Housing Supply and Affordability Reform directions, including the state government's focus on enabling secondary dwellings and gentle infill in existing urban areas.
4. It does not create any public health, safety, environmental, or amenity impacts that would warrant refusal.

Section 6 — Clause 4.6 Variation and DCP Departure Summary

6.1 Clause 4.6 Variation — Floor Space Ratio

The Director-General's concurrence under the pre-2018 regime is no longer required following the 2018 EP&A Act amendments. The consent authority (or in this case the LEC on de novo review) is the consent authority for the purposes of cl 4.6(4).

6.2 DCP Departure — Rear Setback (Ground Floor)

Sources & legislation

Every claim in this report is grounded in the following authoritative documents. Click any link to read the in-force version directly.

• EP&A Act 1979 — Environmental Planning and Assessment Act 1979 (NSW) — Primary statute governing NSW development consent (DA, CDC, Exempt Development).
• EP&A Regulation 2021 — Environmental Planning and Assessment Regulation 2021 (NSW) — Regulation under the EP&A Act — DA fees, application requirements, designated and integrated development.
• Codes SEPP 2008 — State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 — Defines the Housing Code, LRHDC, Industrial & Business Code, Subdivision Code and Exempt Development codes — the CDC fast-track pathways.
• Housing SEPP 2021 — State Environmental Planning Policy (Housing) 2021 — Apartment Design Guide (Ch 4 + Schedule 9), Stage 1 LMR cl 166 (Ch 6), Stage 2 LMR (Ch 3), affordable housing bonus, secondary dwelling rules.
• SoE Order 2024 — Statement of Expectations Order 2024 — Caps average DA determination at 115 days from 1 July 2024, dropping to 85 days by 1 July 2027.
• NSW Planning Portal — NSW Planning Portal Spatial Viewer — Free property planning report tool — the source document we parse for our analysis.
• Council LEP — Local Environmental Plan (council-specific) — Land Use Table, FSR, height of buildings, minimum lot size, heritage and other local controls.