Hall v Northern Beaches Council

[2025] NSWLEC 1111

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hall v Northern Beaches Council [2025] NSWLEC 1111

Hearing dates:

Conciliation conference held on 2 September 2024 and 5 December 2025

Date of orders:

25 February 2025

Decision date:

25 February 2025

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

Proceedings 2024/87513

The Court orders that:

(1)   The applicants’ written request pursuant to clause 4.6 of Pittwater Local Environmental Plan 2014 (PLEP) seeking a variation of cl 7.8 Limited Development on Foreshore Area of the PLEP prepared by Vaughan Milligan Development Consulting Pty Limited dated November 2024 is upheld.

(2)   The appeal is upheld.

(3)   Development Application No DA2023/0830 for the use of existing structures on the roof area of an existing boat shed and the use of internal alterations to the existing boat shed at 38 McCarrs Creek Road, Church Point is determined by the grant of consent subject to the conditions in Annexure A.

Proceedings 2024/87535

The orders of the Court, as amended on 24 March 2025, are as follows:

(1)   The appeal is upheld.

(2)   The applicant is directed to carry out the following works within 6 months of the Court Orders:

(a)   Demolish and remove the cabana structure erected above the boatshed, including the roof sheets, soffit, fascia, rafts and posts, as shown on the plan at Annexure A.

(b)   Demolish and remove the bench, sink and fridge located on the eastern side wall, and the cupboards located above from the interior of the boatshed (the Works).

(c)   The applicant is to, upon completion of the Works, notify the respondent of the completed works and permit access to officers of the respondent to conduct an inspection of the exterior and interior of the boatshed.

(d) Within 7 days from the date the respondent is satisfied that the works have been completed in accordance with Order 2(b) above the respondent is directed, pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979, to issue a Building Information Certificate with respect to the masonry wall on the northern side of the boatshed roof and for the internal works to create a bathroom and shower internal to the boatshed at the property located at 38 McCarrs Creek Road, Church Point, being Lot 1 in DP 209105.

Catchwords:

DEVELOPMENT APPLICATION – application seeking development consent for the use of internal alterations to the existing boat shed – conciliation conference – agreement between the parties – orders

BUILDING INFORMATION CERTIFICATE – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.4, 4.14, 6.22, 6.23, 8.10, 8.25

Land and Environment Court Act 1979, s 34

Local Government Act 1993

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Pittwater Local Environmental Plan 2014, cll 2.3, 4.3, 7.1, 7.2, 7.6, 7.7, 7.8

State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2, 4, ss 2.11, 2.12, 2.13

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, s 2.48

Texts Cited:

Pittwater Development Control Plan 2021

Category:

Principal judgment

Parties:

Proceedings 2024/87513
Nicholas Hall (First Applicant)
Therese Hall (Second Applicant)
Northern Beaches Council (Respondent)

Proceedings 2024/87535
Nicholas Hall (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
A Sattler (Solicitor)(Applicants)
A Gough (Solicitor) (Respondent)

Solicitors:
Sattler & Associates Pty Ltd
Storey & Gough Law

File Number(s):

2024/87513;
2024/87535

Publication restriction:

Nil

JUDGMENT

Background

1. This judgment deals with the following two appeals:

1. Proceedings no 2024/87513—an appeal against the Northern Beaches Planning Panel’s refusal for Development Application No DA2023/0830 (the DA) which sought consent for the "use of the As-Built Cabana and Boatshed Facility" as described in the development application form (DA appeal).

2. Proceedings no 2024/87535—an appeal against refusal of building information certificate application no BIC2023/0127 (BIC).

2. These appeals relate to a property adjoining the Pittwater Waterway known as 38 McCarrs Creek Road, Church Point (the site). The proceedings concern an existing boatshed located adjacent towards the site's rear boundary adjoining the waterway (the boatshed).

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 2 September 2024. I presided over the conciliation conference.

4. With the consent of the Northern Beaches Council (Council), pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the amended development application (the amended DA) seeks approval for the following:

1. the use of internal changes made to boatshed facilities to create a bathroom and shower;

2. the use of the roof of the boatshed as a terrace; and

3. the construction of a planter box.

Proceedings No 2024/87513 – the DA appeal

5. The owners of the site are Nicholas and Therese Hall (the Owners). The DA was lodged with the Council on 29 June 2023.

6. The DA in its original form was advertised and notified to adjoining and nearby landowners in accordance with Council's notification policy from 6 July to 20 July 2023. Council received one submission objecting to the proposal. The submission raised the following issues:

1. Compliance with Clause D15.15 Waterfront Development Sub-Clause (c) Boat Sheds of Pittwater Development Control Plan 2021 (PDCP);

2. Bulk and Scale;

3. View Sharing;

4. Compliance with cl 7.8 Limited Development of Foreshore Area in the Pittwater Local Environmental Plan 2014 (PLEP); and

5. Visual/Acoustic Privacy.

7. The DA was assessed and subsequently refused by the Northern Beaches Local Planning Panel on 4 October 2023.

8. This Class 1 appeal was filed with the Court on 7 March 2024.

9. The parties are agreed that the contentions raised in the Council’s Statement of Facts and Contentions filed on 5 April 2024 (SOFAC) are resolved by the amended architectural plans and agreed conditions at Annexure A. They now propose resolution of the proceedings in accordance with the terms of their executed s 34 written agreement. The decision involves the grant of development consent, subject to the conditions in Annexure A.

10. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions. The parties have addressed the jurisdictional preconditions in each case in an agreed statement.

Environmental Planning and Assessment Act 1979 and Regulations

11. In respect to the DA appeal, it is be noted that the original application sought consent for development on land that was owned by the Crown. The application, as amended, now only seeks a use and consent for the structures located on the land owned by the applicants, including the proposed planter box. The owners’ consent to the application is contained in Annexure A. As such, the application is consistent with s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

12. As the site is classified as bush fire prone land the DA is accompanied by a Bushfire Report prepared by Bush Fire Planning Services Pty Ltd dated 12 April 2022 in satisfaction of s 4.14 of the EPA Act. Condition 1 of the consent in Annexure A requires compliance with the recommendation of that Bushfire Report.

State Environmental Planning Policy (Transport and Infrastructure) 2021

13. Section 2.48(1)(b) and (c) of Ch 2 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 require the Consent Authority to consider any development application (or an application for modification of consent) for any development carried out:

…

(i)  within or immediately adjacent to an easement for electricity purposes (whether or not the electricity infrastructure exists), or

(ii)  immediately adjacent to an electricity substation, or

(iii)  within 5m of an exposed overhead electricity power line,

(c)  installation of a swimming pool any part of which is—

(i)  within 30m of a structure supporting an overhead electricity transmission line, measured horizontally from the top of the pool to the bottom of the structure at ground level, or

(ii)  within 5m of an overhead electricity power line, measured vertically upwards from the top of the pool,

14. The application was referred to Ausgrid who have raised no objection subject to the imposition of recommended conditions which have now been incorporated into the consent (see condition 2, Annexure A).

State Environmental Planning Policy (Resilience and Hazards) 2021

15. The site is within the ‘coastal environment area’ and ‘coastal use area’ as mapped under the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H). Therefore, Ch 2 of the SEPP is applicable.

• Section 2.11 – Development within a coastal use area – the proposed development is not likely to cause an adverse impact to items listed under s 2.11(1)(a)(i-v) inclusive, given that it involves minimal building work and does not increase the intensity of the current land use. The proposal has been designed, sited, and managed to avoid any adverse impacts as detailed under s 2.11(1)(a)(i-v) inclusive.

• Section 2.12 – Development in coastal zone generally – development consent must not be granted to development on land within the coastal zone unless the consent authority is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land. As the development involves minor work and the use of existing structures it is accepted that an approval of this application would not increase risk to coastal hazards.

• Section 2.13 – Development in coastal zone generally – development consent must not be granted to development on land within the coastal zone unless the consent authority has taken into consideration the relevant provisions of any certified coastal management program that applies to the land. There is no certified coastal management program applicable to the land.

16. Chapter 4 of the SEPP R&H applies a Statewide planning approach to the remediation of contaminated land. Given the history of only residential use of the land – since the initial subdivision it is accepted that the site is not subject to contamination and therefore further investigation is not required at this stage.

Pittwater Local Environmental Plan 2014

Zoning and objectives

17. The Land is zoned C4 Environmental Living. The objectives of the zone are:

1   Objectives of zone

•  To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

•  To ensure that residential development does not have an adverse effect on those values.

•  To provide for residential development of a low density and scale integrated with the landform and landscape.

•  To encourage development that retains and enhances riparian and foreshore vegetation and wildlife corridors.

18. The development is for the purpose of a ‘boat shed” and seeks consent to use the roof of the structure for a purpose ancillary to the residential use of the land. Boat Sheds and Dwelling houses are permissible development with consent in the C4 Environmental Living zone.

19. The Council is satisfied that the DA complies with the objectives of the zone pursuant to cl 2.3 and I have considered those matters.

Clause 4.3 – Height of Buildings

20. The maximum building height in this portion of Church Point is 8.5m and the development complies with this standard.

Clause 7.6 Biodiversity

21. The development is sited within the existing footprint and therefore will not impact surrounding flora and fauna. Therefore, I am satisfied that the ecological values of the Pittwater water way will not be impacted by the proposed development

Clause 7.7 – Geotechnical Hazards

22. The DA is accompanied by a Geotechnical Risk Assessment prepared by Douglas Partners Pty Ltd, Report Reference No 215382.00, dated 27 May 2022. The report concludes that the proposal can achieve the Acceptable Risk Management criteria outlined in the Pittwater Geotechnical Risk Policy.

Clause 7.8 – Limited development on foreshore area

23. The site is affected by the Council’s Foreshore Building Line and the proposed works are within that foreshore area.

24. Clause 7.8(2) of the PLEP provides that development consent cannot be granted within the foreshore area except for the following purposes (cl 7.8(2) of the PLEP):

(a)  the extension, alteration or rebuilding of an existing building wholly or partly in the foreshore area, but only if the development will not result in the footprint of the building extending further into the foreshore area,

(b)  boat sheds, sea retaining walls, wharves, slipways, jetties, waterway access stairs, swimming pools, fences, cycleways, walking trails, picnic facilities or other recreation facilities (outdoors).

25. A “boat shed” is specified development for which consent can be granted (cl 7.8(2)(b) of PLEP). Therefore, the proposed alteration of the existing boatshed and its use by this application is in compliance with subcll (a) and (b).

26. The proposed use of the roof of the existing boat shed as a terrace garden is not directly noted as a form of development contemplated by cl 7.8(2)(b), as a result the applicant has sought a variation of the standard to allow for a terrace garden development in this case. There are a number of boatshed facilities with trafficable roof areas used for private recreation proximate to the site within the local area’s foreshore interface. The site is surrounded by an interface and foreshore character comprised of varied building setbacks, vegetated hillsides and marine interfaces and associated structures.

27. Accepting that cl 7.8 of the PLEP is a development standard the applicants, in accordance with cl 4.6 of the PLEP have submitted a written request prepared by Vaughan Milligan Development Consulting Pty Ltd dated November 2024 for a variation to the standard.

28. Relevantly, with regard to subcl (3) the request submits that:

1. the development will contribute to the achievement of the objects of the PLEP, by providing a development that will not impact on the foreshore area or amenity of the locality and will not constrain existing public access to the foreshore.

2. The appearance of the structure is not incompatible with the surrounding area from the waterway and adjacent foreshore areas.

3. The development will not cause environmental harm.

4. The development will not cause congestion or conflict to users of the waterway.

5. The development will not compromise existing public access to the waterfront.

6. The development will not affect any historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the land.

7. The new planter box will not have an adverse impact on the amenity or aesthetic appearance of the foreshore area.

8. The development will not impact sea level rise, erosion, recission or flooding behavior.

29. The Council is supportive of a variation of the development standard in this case for the reasons outlined in the written request and I am also satisfied.

Pittwater Development Control Plan 2021

30. The parties have had regard to the relevant provisions of the PDCP and the particularised Contentions.

31. The Council is satisfied that the DA can be approved having regard to the provisions of the PDCP and s 4.15(1)(a)(iii) of the EPA Act and I accept that to be the case.

Proceedings No 2024/87535 – the BIC appeal

Environmental Planning and Assessment Act 1979

32. Owner’s consent was provided for the BIC application as required by s 6.22(a) of the EPA Act (Class 1 Application, Tab 4).

33. The application for the BIC was lodged with Northern Beaches Council being the Council for the area in which the land to which the application relates is situated as required by s 6.23(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

34. The agreed orders require the applicant to carry out certain demolition work before a Building Information Certificate is issued.

35. Pursuant to s 8.25(3)(a) of the EPA Act the Court may direct a Council to issue a building information certificate in such terms and on such conditions as the Court thinks fit; and, under s 8.25(3)(c) direct the applicant to undertake particularised work before the issuance of a Building Information Certificate.

36. In this case the works are directed to the masonry wall on the northern side of the boatshed roof, and the internal works to create a bathroom and shower internal to the boatshed (the works).

37. As the works are consistent with the definition of “building” set out in s 1.4(1) of the EPA Act and the DA is accompanied by a structural certificate and a survey, confirming the structural adequacy of the buildings and their location within the property owned by the applicant (Class 1 Application, Tabs 6 and 9) I am satisfied pursuant to s 6.25(1) of the EPA Act that:

1. there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under the EPA Act or the Local Government Act 1993:

1. to order the building to be repaired, demolished, altered, added to or rebuilt, or

2. to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or

3. to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council.

Conclusion

38. For the above reasons I am satisfied that the parties’ decision in each appeal is within power as required by s 34(3) of the LEC Act. Accordingly, I now dispose of the proceedings in accordance with their decisions.

39. In forming that view, I am not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

40. The Court notes:

1. That the Northern Beaches Council, as the relevant consent authority, has, under s 38 of the Environmental Planning and Assessment Regulation 2021, consented to the amendment of development application No DA2023/0830 with the amended architectural plans and documents listed as follows:

Plan or Report	Plan No.	Revision Identifier	Date	Prepared by
Plan of Terrace, garden and boat shed	00.01	A	19 September 2024	Christine McLean design
Structural Certificate	Job No. 2203115	6 September 2024	NB Consulting Engineers
Letter regarding Planter Box and Landscape Design	18 September 2024	Selena Hannan, Consulting Arborist
Revised Statement of Environmental Effects	November 2024	Vaughan Milligan Development Consulting Pty Limited.
Clause 4.6 Limited Development in Foreshore Area PLEP	November 2024	Vaughan Milligan Development Consulting Pty Limited.
NSW Planning Portal Development Application Form and Owners Consent	PAN-345173	29.6.2023	Prepared on behalf of applicants by Vaughan Milligan Development Consulting Pty Limited.

Orders

Proceedings 2024/87513

41. The Court orders that:

1. The applicants’ written request pursuant to clause 4.6 of Pittwater Local Environmental Plan 2014 (PLEP) seeking a variation of cl 7.8 Limited Development on Foreshore Area of the PLEP prepared by Vaughan Milligan Development Consulting Pty Limited dated November 2024 is upheld.

2. The appeal is upheld.

3. Development Application No DA2023/0830 for the use of existing structures on the roof area of an existing boat shed and the use of internal alterations to the existing boat shed at 38 McCarrs Creek Road, Church Point is determined by the grant of consent subject to the conditions in Annexure A.

Proceedings 2024/87535

42. The Court orders that:

1. The appeal is upheld.

2. The applicant is directed to carry out the following works within 6 months of the Court Orders

1. Demolish and remove the cabana structure erected above the boatshed, including the roof sheets, soffit, fascia, rafts and posts, as shown on the plan at Annexure A.

2. Demolish and remove the bench, sink and fridge located on the eastern side wall, and the cupboards located above from the interior of the boatshed (the Works).

3. The applicant is to, upon completion of the Works, notify the respondent of the completed works and permit access to officers of the respondent to conduct an inspection of the exterior and interior of the boatshed.

4. Within 7 days from the date the respondent is satisfied that the works have been completed in accordance with Order 2(b) above the respondent is directed, pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979, to issue a Building Information Certificate with respect to the masonry wall on the northern side of the boatshed roof and for the internal works to create a bathroom and shower internal to the boatshed at the property located at 38 McCarrs Creek Road, Church Point, being Lot 1 in DP 209105.

S Dixon

Senior Commissioner of the Court

87513.24 Annexure A

87535.24 Annexure A

**********

Amendments

25 February 2025 - Hearing dates amended and typographical error corrected at paragraph 38.

24 March 2025 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip” rule), by consent of the parties, correction is made to Annexure A of proceedings 2024/87535.

Decision last updated: 24 March 2025