Grex Holdings Pty Ltd v Northern Beaches Council

[2025] NSWLEC 1639

Land and Environment Court

New South Wales

Medium Neutral Citation:

Grex Holdings Pty Ltd v Northern Beaches Council [2025] NSWLEC 1639

Hearing dates:

Conciliation conference on 12 August 2025

Date of orders:

04 September 2025

Decision date:

04 September 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed amount of $12,000 within 28 days of the date of these Orders.

(2) The request pursuant to clause 4.6 of the Pittwater Local Environmental Plan 2014 to vary the development standard for height contained within clause 4.3 thereof, as prepared by Think Planners dated 13 June 2025, is upheld.

(3) The appeal is upheld.

(4) Development Application DA2024/1091, as amended, for the demolition works and construction of a mixed use development with basement parking comprising of retail uses and a childcare centre at 1-3 Careel Head Road, Avalon Beach, is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – mixed-use development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Education and Care Services National Regulations 2011 (NSW), regs 107, 108

Environmental Planning and Assessment Regulation 2021, s 38

Pittwater Local Environmental Plan 2014, cll 4.3, 4.6, 5.21, 7.1, 7.2, 7.10

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.8. 2.10, 2.11, 2.12, 2.13, 4.6, Ch 2

State Environmental Planning Policy (Sustainable Buildings) 2022, s 3.2

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Category:

Principal judgment

Parties:

Grex Holdings Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
K Garnock (Solicitor) (Applicant)
A Foley (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2025/40247

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Northern Beaches Council, of Development Application DA2024/1091 which seeks consent for the demolition of existing structures, tree removal, and construction of a mixed-use development comprising ground level retail, first floor centre-based child care for 60 children, single level basement and associated landscaping works at 1 and 3 Careel Head Road, Avalon Beach. The site is legally described as Lots 1-7 SP 32656 and Lot CP SP 32656.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (NSW) (EPA Act).

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties. An initial conference was held on 6 June 2025 before a different commissioner, and then reallocated to me to be held on 12 August 2025.

4. After the conciliation conference held before me, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application to adequately address their contentions.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained with regards to these proceedings, and from this I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the owner of the land.

8. The application was adequately notified from 18 September to 16 October 2024, during which time 127 submissions were received. The application was amended as part of this conciliation process, and renotified between 30 June and 28 July, during which time 94 submissions were received. Although oral submissions were heard by the previous commissioner and not myself, noting the parties’ agreement I accept the Council’s submission that the amended application adequately responds to the concerns raised.

9. The site is partially mapped as ‘proximity area for coastal wetlands’, as well as ‘Coastal Use Area’ and ‘Coastal Environment Area’ on the relevant maps pursuant to Ch 2 Coastal management of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H). From the parties’ submission, the Geotechnical Investigation Report by CEC Geotechnical dated 7 May 2025, the amended architectural drawings by CD Architects and the landscape drawings by Canvas Landscape Architects, I accept that:

1. The proposed development will not significantly impact on the matters listed in SEPP R&H, s 2.8.

2. The proposed development is not likely to cause an adverse impact on the matters listed in ss 2.10(1) or 2.11(1), and that the development is designed, sited and will be managed to avoid an adverse impact of the type listed in these sections.

3. The proposed development is not likely to cause increased risk of coastal hazards on that land or other land, in accordance with s 2.12.

4. There is no certified coastal management program that applies to the land pursuant to s 2.13.

10. I therefore accept that the relevant provisions within Ch 2 of the SEPP R&H have been satisfied.

11. Section 4.6 of the SEPP R&H requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. From the parties’ submission and the Preliminary Site Investigation by CEC Geotechnical dated 9 July 2024, I accept that in terms of contamination and subject to the agreed conditions of consent, the site is suitable for the intended use.

12. Pursuant to s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I), written notice was given to Ausgrid, the electricity supply Authority of this development application. Correspondence was received from Ausgrid on 14 October 2024, stating that there was no objection to the development and providing advisory comments. The parties submit and I accept that this response has been taken into consideration.

13. Further, as the proposed child care centre complies with regs 107 and 108 of the Education and Care Services National Regulations 2011 (NSW), concurrence from the Department of Education is not required pursuant to s 3.22 of the SEPP T&I.

14. SEPP T&I s 3.23 requires the consent authority to consider ‘any applicable provisions of the ‘Child Care Planning Guideline’ in determining the application. From the parties’ submission, the Statement of Environmental Effects by Think Planers dated 16 June 2025 and the architectural and landscape drawings in the amended application, I accept that these have been considered, and that the proposal complies with the relevant provisions.

15. Pursuant to s 3.2 of the State Environmental Planning Policy (Sustainable Buildings) 2022, the embodied emissions attributable to the development have been quantified in the NABERs Embodied Emissions Materials form. Further, the parties submit, and I accept that that the matters listed in s 3.2(1) have been considered and the proposed development is acceptable when assessed against these matters.

16. The subject site is zoned E1 Local Centre under the Pittwater Local Environmental Plan 2014 (PLEP), within which development for the purposes of commercial premises and centre-based child care facilities is permissible with consent. The proposed development is consistent with the objectives of this zone.

17. Pursuant to PLEP cl 4.3, a maximum building height of 8.5m applies to the subject site. The proposed development exceeds this development standard, proposing a maximum height of 9.28m due to a lift overrun and parapet. PLEP cl 4.6 allows the applicant to request a variation to this development standard, which they have provided as a document authored by Think Planners dated 13 June 2025. Pursuant to cl 4.6 and based on this written request, I am satisfied that:

1. Compliance with this development standard is unreasonable or unnecessary as the proposal satisfies the objectives of the height of buildings development standard, notwithstanding the variation.

2. Sufficient environmental planning grounds have been provided, in that:

1. a large component of the breach is the result of prior excavation on site, not the natural ground level; and

2. the breach is minor in nature and does not generate any adverse amenity impacts to adjoining properties.

18. The site is identified as part ‘low risk precinct’ and part ‘medium risk precinct’ on the Council’s Flood Hazard Map. From the stormwater plans by C&S Engineering dated 17 June 2025, the Flood Management Report by CEC Geotechnical dated 12 June 2025, and the agreed conditions of consent, I accept that the flooding-related matters listed in PLEP cl 5.21(3) have been considered, and the requirements of cl 5.21 are met with the proposed development.

19. Pursuant to PLEP cl 7.1, the site is identified as Class 2 and Class 5 on the Acid Sulfate Soils Map. The application is accompanied by an Acid Sulfate Soil Management Plan by CEC Geotechnical dated 30 July 2024, in accordance with the requirements of PLEP cl 7.1.

20. Based on the Geotechnical Investigation Report and the parties’ submission, I accept that the earthworks-related matters listed in PLEP cl 7.2(3) have been considered, and the proposed earthworks are acceptable pursuant to this clause.

21. From the parties’ submission and the amended application, I accept that all the essential services listed in PLEP cl 7.10 are available, or that adequate arrangements have been made to make them available when required.

Conclusion

22. For these reasons, 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 the LEC Act. Accordingly, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

23. The Court notes:

1. Northern Beaches Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant’s amendment to Development Application DA2024/1091, in accordance with the documents set out in Annexure B.

2. The Applicant provided the documents set out in Annexure A to the Court on the date of this agreement.

Orders

24. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed amount of $12,000 within 28 days of the date of these Orders.

2. The request pursuant to clause 4.6 of the Pittwater Local Environmental Plan 2014 to vary the development standard for height contained within clause 4.3 thereof, as prepared by Think Planners dated 13 June 2025, is upheld.

3. The appeal is upheld.

4. Development Application DA2024/1091, as amended, for the demolition works and construction of a mixed use development with basement parking comprising of retail uses and a childcare centre at 1-3 Careel Head Road, Avalon Beach, is determined by the grant of consent subject to the conditions at Annexure A.

E Washington

Commissioner of the Court

Annexure A (310 KB, pdf)

Annexure B (25.7 KB, pdf)

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Decision last updated: 04 September 2025