Mackenzie Architects International Pty Ltd v Northern Beaches Council

[2025] NSWLEC 1523

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mackenzie Architects International Pty Ltd v Northern Beaches Council [2025] NSWLEC 1523

Hearing dates:

Hearing and conciliation conference on 23 June 2025

Date of orders:

22 July 2025

Decision date:

22 July 2025

Jurisdiction:

Class 1

Before:

Miller AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to DA 2024/0936 for the demolition of existing attached dwellings and the construction of a four (4) storey in-fill affordable residential flat building containing a total of 10 units including two (2) affordable rental units with basement parking at 45 and 45A Oaks Avenue, Dee Why (Lots 1 and 2 DP 593609), subject to the conditions in the annexure marked "A”.

Catchwords:

APPEAL — residential flat building — affordable rental units — conciliation conference — agreement reached — orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.46, 8.7

Land and Environment Court Act 1979, s 34

Water Management Act 2000

Environmental Planning and Assessment Regulation 2021 (NSW), ss 23, 29, 37, 38, Sch 7

State Environmental Planning Policy (Housing) 2021, Ch 2 ss 18, 19, Ch 4, ss 146, 147, Sch 9

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022, Sch 1

Warringah Local Environmental Plan 2011, cll 2.3, 2.7, 4.3, 4.4, 5.21, 6.2, 6.4

Texts Cited:

Blacktown Development Control Plan 2015

NSW Guide to Standards and Tolerances

National Construction Code

Category:

Principal judgment

Parties:

Mackenzie Architects International Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
M Harker (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Yates Legal (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2024/396025

Publication restriction:

Nil

JUDGMENT

Introduction

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a four (4) storey residential flat building containing ten (10) apartments (including 2 affordable rental housing apartments) and basement parking at 45 and 45A Oaks Avenue, Dee Why (Lots 1 and 2 DP 593609). The applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of the subject development application on 25 October 2024.

2. The matter commenced as a hearing on 23 June 2025 however during the course of the hearing the parties reached agreement and requested that the matter be relisted for a conciliation conference. The request was granted, and a conciliation conference, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) commenced. I presided over the conciliation conference.

Outcome

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was recorded in a signed agreement filed with the Court on 23 June 2025.

4. The agreement follows the Council’s approval of an application for an amendment to the development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

5. During the course of the proceedings amendments to the plans were made and additional documentation submitted to address the contentions identified by the Respondent. The amendments can be summarised as:

1. Reduction in total units from 12 to 10

2. Increase in side setbacks to 4.5m for the front portion of the site, 2 – 3.15m setback for the rear portion of the site and 3m setback at the first and second floor levels

3. Updated layout and configuration to the units on each level

4. Removal of the communal open space area at the rear of the third floor

5. Inclusion of a communal open space on the roof plan facing the northern boundary

6. Inclusion of a secondary communal open space at the rear of the site

7. Relocation of the pedestrian entry to the north-eastern portion of the site

8. Relocation of the bin storage area within the front setback

9. Relocation of the driveway to the north-western corner of the site, and

10. Reconfiguration of the basement car park including removal of the vehicle turntable, change in parking spaces and use of car stackers, amendments to the lifts and fire stairs and inclusion of bicycle storage.

6. In addition, a condition of consent in respect of the rooftop planter box was agreed to address concerns raised by the neighbour in respect of privacy and overlooking.

7. The decision agreed upon by the parties is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an agreed Jurisdictional Statement, which sets out the jurisdictional requirements for the making of orders in accordance with the agreement. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the joint expert reports and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

Jurisdictional matters

8. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons outlined below.

Water Management Act 2000

9. The proposal is integrated development in accordance with s 4.46 of the EPA Act as an approval is required under the Water Management Act 2000. Water NSW issued its General Terms of Approval (GTAs) for the matter on 18 June 2025.

Warringah Local Environmental Plan 2011

10. The site is zoned R3 Medium Density Residential under Warringah Local Environmental Plan 2011 (WLEP). Development for the purposes of a residential flat building is permissible with consent in the R3 zone under WLEP. Further, regard has been had to the zone objectives and the parties agree that the proposal is consistent with those objectives in accordance with cl 2.3.

11. In accordance with cl 2.7 of WLEP, consent is sought for the demolition of the existing building on site.

12. In accordance with cl 4.3 of WLEP a maximum building height of 11m applies to the subject site. The proposed development has a maximum height of 14.25m and therefore does not comply with this provision. However, State Environmental Planning Policy (Housing) 2021 (H SEPP) provides a height bonus for affordable housing development where certain requirements are met including where the development is permissible with consent, where the development includes more than 10% affordable housing units, where the site is located within the ‘Six Cities’ region and where the site is within an accessible area. The proposed development complies with these requirements and accordingly, as agreed by the parties, attracts a 30% height bonus in accordance with s 18(2) of the H SEPP. The maximum permissible height is therefore 14.3m (11m + 30% (3.3m)) and the proposal complies with the maximum having a maximum height of 14.25m.

13. No maximum floor space ratio development standard applies to the land pursuant to cl 4.4 of WLEP.

14. Clause 5.21 of WLEP applies to the proposal as a small part of the land is mapped as Low Hazard Flood Area. Clause 5.21(2) requires that consent must not be granted unless the consent authority is satisfied of the matters specified in respect of flood behaviour and risk. On the basis of the parties’ agreement and the assessment undertaken by the respondent’s flood engineers I am satisfied of the various matters. Further cl 5.21(3) requires certain matters to be considered prior to the granting of consent. I accept that these matters have been considered by the parties.

15. I am satisfied based on the parties’ agreement, the Geotechnical Investigation (EI Australia, 6 June 2024), the Statement of Environmental Effects (SEE) (Chapman Planning, 20 June 2024) and the recommended conditions of consent, that consideration has been given to the matters required to be considered prior to the granting of development consent in respect of earthworks under cl 6.2 of WLEP.

16. I am further satisfied that the proposal complies with cl 6.4 of WLEP in respect of development on sloping land (noting that the land is mapped as ‘Area A’ Landslide risk land) having regard to the parties’ agreement, the Geotechnical Investigation prepared by EI Australia (6 June 2024) and the recommended conditions of consent.

State Environmental Planning Policy (Housing) 2021

17. As outlined above the proposal includes affordable housing units and relies on the provisions of Ch 2 of the H SEPP in respect of bonus height. The proposal also complies with the non-discretionary development standards set out in s 19 as confirmed by the Planning Statement prepared by Chapman Planning (9 April 2025).

18. Chapter 4 of the H SEPP also applies as the proposal comprises a residential flat building. In accordance with s 145 the development application was referred to the Respondent’s Design and Sustainability Advisory Panel on 22 August 2024 for advice.

19. Further having regard to the planners joint expert report, the design verification statement (Mackenzie Architects, 6 May 2024) and the SEE (Chapman Planning, 20 June 2024) I am satisfied that, as required by s 147, consideration has been given to the design principles for residential apartment development set out in Sch 9, the Apartment Design Guide and the advice of the Design and Sustainability Advisory Panel.

State Environmental Planning Policy (Resilience and Hazards) 2021

20. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). The parties agree, based on aerial photography, that the site has a long history of residential use therefore contamination is considered unlikely. Further the proposal does not involve a change of use. No further investigation in accordance with the RH SEPP is therefore required.

State Environmental Planning Policy (Sustainable Buildings) 2022

21. The proposal is BASIX affected development in accordance with Sch 7 of the EPA Reg and accordingly the standards set out in Sch 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 apply. An updated BASIX Certificate has been submitted for the amended proposal (Certificate No. 1749309M_03) prepared by Eco Certificates Pty Ltd dated 20 June 2025.

Other Matters

22. The development application is accompanied by a design verification statement in accordance with s 29 of the EPA Reg prepared by Mackenzie Architects (6 May 2024).

23. The development application is accompanied by owners’ consent in accordance with s 23 of the EPA Reg.

24. The Respondent notified the original development application between 25 July and 8 August 2024. Nine (9) submissions were received. Following amendment of the application the matter was renotified from 15 May to 12 June 2025. Three submissions (3) were received in response to the renotification. In addition, at the commencement of the hearing on site I was addressed by one neighbour by way of objection. In reaching agreement, the parties have advised that consideration has been given to the concerns raised in the submissions.

Conclusion

25. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

26. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any 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.

Orders

27. The orders of the Court are:

1. The appeal is upheld.

2. Development consent is granted to DA 2024/0936 for demolition of existing attached dwellings and the constructed of a four (4) storey in-fill affordable residential flat building containing a total of 10 units including two (2) affordable rental units with basement parking at 45 and 45A Oaks Avenue, Dee Why (Lots 1 and 2 DP 593609), subject to the conditions in the annexure marked "A”.

H Miller

Acting Commissioner of the Court

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Annexure A (513 KB, pdf)

Decision last updated: 22 July 2025