Mainbury Pty Ltd v Northern Beaches Council

[2025] NSWLEC 1569

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mainbury Pty Ltd v Northern Beaches Council [2025] NSWLEC 1569

Hearing dates:

Conciliation conference on 4 August 2025

Date of orders:

08 August 2025

Decision date:

08 August 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Consent is granted to DA2024/1370 for demolition works and the construction of a new dwelling including studio, landscaping works and swimming pool at 42 and 42A Cabarita Road Avalon Beach NSW 2107, subject to conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – construction of a dwelling house – agreement between the parties – orders

Legislation Cited:

Biodiversity and Conservation Act 2016 (NSW), ss 7.3, 7.7

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

Land and Environmental Court Act 1979 (NSW), ss 34, 34AA

Environmental Planning and Assessment Regulation 2021 (NSW), s 38

of State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Pittwater Local Environmental Plan 2014, cll 4.3, 4.6, 7.1, 7.2, 7.6, 7.7, 7.8, 7.10

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

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

Category:

Principal judgment

Parties:

Mainbury Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Macquarie Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2025/60286

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 DA2024/1370. This application seeks consent for the demolition of existing structures and the removal of vegetation, and the construction of a new dwelling, studio and swimming pool, and landscaping works at 42 and 42A Cabarita Road, Avalon Beach, Lot 1 and 2 of DP 1227452.

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 and hearing under s34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 4 August 2025.

4. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings, which involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing.

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

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision 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, 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 in accordance with the Northern Beaches Community Participation Plan from 4 November to 18 November 2024. One submission was received, and the same residents made oral submissions via a representative at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions.

9. Part of the site is mapped on the Biodiversity Values Map, however no clearing of native vegetation is proposed on that land. Pursuant to the requirements of s 7.3 of the Biodiversity and Conservation Act 2016 (BC Act), the applicant has assessed whether the development is likely to significantly affect threatened species or ecological communities or their habitats. As demonstrated by Fraser Ecological in a Biodiversity Assessment Report dated 4 October 2024, the development is unlikely to result in any of these impacts, and accordingly, a Biodiversity Development Assessment Report pursuant to s 7.7 of the BC Act is not required.

10. The site is mapped as ‘Coastal Use Area’ and ‘Coastal Environment Area’ on the relevant maps pursuant to Ch 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH). From the parties’ submissions and the following documents, I accept that the matters listed in ss 2.10(1) and 2.11(1)(a) and subs (c) have been considered, and that the proposed development meets the requirements of ss 2.10(2) and 2.11(1)(b):

• Biodiversity Assessment Report;

• Statement of Environmental Effects by Ethos Urban dated 18 October 2024 (SEE);

• Stormwater plans by Deboke Engineering Consultants dated 18 July 2025;

• Geotechnical Landslide Risk Assessment by EI Australia dated 16 June 2025 (Geotechnical Report); and

• Coastal Engineering Risk Assessment by Stantec dated 3 February 2025.

11. Based on the information contained in the above documents, the agreed conditions of consent that form Annexure A, and the parties’ submission I further accept that the proposed development is not likely to cause increased risk of coastal hazards on the site or any other land, pursuant to s 2.12 of the SEPP RH.

12. Section 4.6 of the SEPP RH 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 Statement of Environmental Effects, I accept that the subject site has historically been used for residential purposes and there is no record of any contamination, or contaminating activity on site. Accordingly I accept that, in terms of contamination, the site is suitable for the intended, continued residential use.

13. The development is located within 5 m of an exposed overhead power line, and therefore s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 applies. Pursuant to s 2.48, the application was referred to Ausgrid, and their response has been incorporated into the agreed conditions of consent.

14. A BASIX certificate has been provided that relates to the development as amended, pursuant to the requirements of State Environmental Planning Policy (Sustainable Buildings) 2022. This certificate identifies and quantifies the embodied emissions attributable to the development as required by s 2.1(5).

15. The subject site is zoned C4 Environmental Living under the Pittwater Local Environmental Plan 2014 (PLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

16. Pursuant to PLEP cl 4.3, the proposed development complies with the maximum building height of 8.5m.

17. Pursuant to PLEP cl 7.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, and is adjacent to an area identified as Class 1. Accordingly, an Acid Sulfate Soils Management Plan by Aargus dated 1 August 2024 accompanies the development application, meeting the requirements of this clause.

18. From the parties’ submission, the Joint Expert Report of Planning Experts and the amended application, I accept that the earthworks-related matters listed in PLEP cl 7.2(3) have been considered and the proposed earthworks are acceptable.

19. The site is mapped as ‘Biodiversity’ on the relevant map pursuant to PLEP cl 7.6. From the parties’ submission and the Biodiversity Assessment Report, I accept that the matters listed in PLEP cl 7.6(3) have been considered, and the proposed development meets the requirements of cl 7.6(4).

20. The site is also mapped as ‘Geotechnical Hazard H1’ on the relevant map pursuant to PLEP cl 7.7. I accept that the Geotechnical risks listed in cl 7.7(3) have been considered in the Geotechnical Landslide Risk Assessment and the further letter form EI Australia to the applicant dated 17 June 2025, and that the proposed development meets the requirements of cl 7.7(4), subject to the agreed conditions of consent.

21. PLEP cl 7.8 limits development on the foreshore area, including limiting the proposed retaining walls. Accordingly, a request to vary this development standard has been prepared pursuant to PLEP cl 4.6. From this document, prepared by Andrew Martin Planning dated 1 August 2025, I accept that compliance with the standard is unreasonable and unnecessary because the objectives of the standard and the zone are achieved notwithstanding the variation, noting that the retaining walls will not impact on natural foreshore processes or affect the significance an amenity of the area. The proposed walls largely replace existing walls, and are of a similar height and location. For the reasons set out in the written request, I accept that sufficient environmental planning grounds have been established to justify the variation, and that subsequently the proposed variation is acceptable pursuant to PLEP cl 4.6.

22. The parties submit, and I accept that all essential services listed in PLEP cl 7.10 are available, or adequate arrangements have been made to make them available when required in the development as amended.

Conclusion

23. 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. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notes

24. The Court notes:

1. Northern Beaches Council as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the applicant amending Development Application No. DA24/1370 made on 25 October 2024 to rely on the amended documents and plans specified below:

Amended Architectural Plans
Drawing	Description	Revision	Date	Prepared by
0660-DA100	Title Page	12	29 July 2025	PopovBass
0660-DA101	Site Analysis Plan	12	29 July 2025	PopovBass
0660-DA102	Site Plan	12	29 July 2025	PopovBass
0660-DA103	Roof Plan	12	29 July 2025	PopovBass
0660-DA104	Level 01 Plan	12	29 July 2025	PopovBass
0660-DA105	Ground Floor Plan	12	29 July 2025	PopovBass
0660-DA106	Lower Ground Floor Plan	12	29 July 2025	PopovBass
0660-DA107	Garden Floor Plan	12	29 July 2025	PopovBass
0660-DA108	Lower Garden Floor Plan	12	29 July 2025	PopovBass
0660-DA109	North Elevation	12	29 July 2025	PopovBass
0660-DA110	South Elevation	12	29 July 2025	PopovBass
0660-DA111	East Elevation	12	29 July 2025	PopovBass
0660-DA112	West Elevation	12	29 July 2025	PopovBass
0660-DA113	Section AA	12	29 July 2025	PopovBass
0660-DA114	Section BB	12	29 July 2025	PopovBass
0660-DA115	Height Plane Section Diagrams	12	29 July 2025	PopovBass
0660-DA116	Height Plane 3D Diagrams	12	29 July 2025	PopovBass
0660-DA117	Landscape Diagrams	12	29 July 2025	PopovBass
0660-DA118	Excavation Plan	12	29 July 2025	PopovBass
0660-DA119	Shadow Diagram	12	29 July 2025	PopovBass
0660-DA120	Shadow Diagram	12	29 July 2025	PopovBass
0660-DA121	Shadow Diagram	12	29 July 2025	PopovBass
0660-DA122	Sun Eye Views	12	29 July 2025	PopovBass
0660-DA123	Material and Finishes Schedule	12	29 July 2025	PopovBass
0660-DA124	Pool Details	12	29 July 2025	PopovBass
0660-DA125	Window Schedule	12	29 July 2025	PopovBass
0660-DA127	Excavation at Each Level Diagrams	12	29 July 2025	PopovBass
0660-DA128	Section EE	12	29 July 2025	PopovBass
0660-DA129	Section FF	12	29 July 2025	PopovBass
0660-DA130	Demolition Plan	12	29 July 2025	PopovBass
-	Schedule of Changes	10	29 July 2025	PopovBass
Amended Landscape Plan
Drawing	Description	Revision	Date	Prepared by
C001	Cover Sheet	E	30 July 2025	Bates Landscape
C101	Upper Landscape Plan	E	30 July 2025	Bates Landscape
C102	Intermediate Landscape Plan	E	30 July 2025	Bates Landscape
C103	Lower Landscape Plan	E	30 July 2025	Bates Landscape
C901	Bin Store Planting Plan	E	30 July 2025	Bates Landscape
C902	Studio Planting Plan	E	30 July 2025	Bates Landscape
C903	Front Entry Planting Plan	E	30 July 2025	Bates Landscape
C904	Courtyard Planting Plan	E	30 July 2025	Bates Landscape
C905	Waterfront Planting Plan	E	30 July 2025	Bates Landscape
C906	Trees Plan	E	30 July 2025	Bates Landscapes
Amended Stormwater Plans
Drawing	Description	Revision	Date	Prepared by
S101	Specifications Sheet	1	18 July 2025	Deboke Civil
S200	Lower Garden Floor Plan	1	18 July 2025	Deboke Civil
S201	Garden Floor Plan	1	18 July 2025	Deboke Civil
S202	Lower Ground Plan	1	18 July 2025	Deboke Civil
S203	Ground Floor Plan	1	18 July 2025	Deboke Civil
S204	Level 01 Floor Plan	1	18 July 2025	Deboke Civil
S205	Street Level and Roof Plan	1	18 July 2025	Deboke Civil
S300	Details Sheet 1 of 2	1	18 July 2025	Deboke Civil
S301	Details Sheet 2 of 2	1	18 July 2025	Deboke Civil
S400	Erosion and Sediment Control Plan	1	18 July 2025	Deboke Civil
Amended Reports
Reference	Report Name	Revision	Date	Prepared by
304501743	Coastal Engineering Risk Assessment Report	-	3 February 2025	Stantec
24169_VIS1	Visual Impact Study	-	5 March 2025	CMS Surveyors
25.045	Construction Traffic & Pedestrian Management Plan	3	3 June 2025	Traffix
E26727.G14	Geotechnical Landslide Risk Assessment	1	16 June 2025	EI Australia
-	Landslide Risk Assessment	-	17 June 2025	EI Australia
1766699S_02	BASIX Certificate	-	30 July 2025	Frys Energy Wise
-	BASIX & Thermal Commitments	-	30 July 2025	Frys Energy Wise
Clause 4.6 request to vary development standard in clause 7.8	1 August 2025	Andrew Martin, Andrew Martin Planning Pty Ltd

Orders

25. The Court orders:

1. The appeal is upheld.

2. Development Consent is granted to DA2024/1370 for demolition works and the construction of a new dwelling including studio, landscaping works and swimming pool at 42 and 42A Cabarita Road Avalon Beach NSW 2107, subject to conditions set out in Annexure A.

E Washington

Commissioner of the Court

Annexure A (402 KB, pdf)

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Decision last updated: 08 August 2025