Meehan v Northern Beaches Council
[2025] NSWLEC 1423
•17 June 2025
Land and Environment Court
New South Wales
Medium Neutral Citation: Meehan v Northern Beaches Council [2025] NSWLEC 1423 Hearing dates: Conciliation Conference 22 April 2025 Date of orders: 17 June 2025 Decision date: 17 June 2025 Jurisdiction: Class 1 Before: Byrne AC Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development Application No DA2024/1016, as amended, for the excavation and construction of a tunnel and lift shaft between the existing dwelling house and existing boat shed, and associated alterations to accommodate the lift shaft and tunnel on land legally described as Lot 61 in Deposited Plan 13620 and Lot 1 in Deposited Plan 456145 and known as 995 Barrenjoey Road, Palm Beach, NSW, 2108, is determined by the grant of development consent subject to the conditions at Annexure A.
Catchwords: DEVELOPMENT APPEAL – excavation – Pittwater waterfront Site – steep land – lift and tunnel installation – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.14, 4.16, 8.7, 10.3
Land and Environment Court Act 1979, ss 34, 34AA
Environmental Planning and Assessment Regulation 2021, s 38
Pittwater Local Environmental Plan 2014, cll 2.3, 2.7
State Environmental Planning Policy (Resilience and Hazards) 2021
State Environmental Planning Policy (Sustainable Buildings) 2022
State Environmental Planning Policy (Transport and Infrastructure) 2021
Texts Cited: NSW Rural Fire Service, Planning for Bush Fire Protection, 2019
Category: Principal judgment Parties: Christopher Meehan (Applicant)
Northern Beaches Council (Respondent)Representation: Counsel:
Solicitors:
M Staunton (Applicant)
M Domingo (Solicitor) (Respondent)
Macpherson Kelley (Applicant)
Northern Beaches Council (Respondent)
File Number(s): 2024/404449 Publication restriction: No
Judgment
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COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Northern Beaches Council (the Council) of DA2024/1016 (the Development Application) for excavation and construction of a tunnel and lift shaft between the existing dwelling house and existing boat shed, and associated alterations to accommodate the lift shaft and tunnel (the Proposed Development) on land legally described as Lot 61 in DP 13620 and Lot 1 in DP 456145 and known as 995 Barrenjoey Road, Palm Beach, NSW, 2108 (the Site).
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The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on site and at Court.
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At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council’s contentions. This decision involved Council approving an application to amend the Applicant’s plans pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the amended Proposed Development with conditions at Annexure A.
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There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) provided to the Court. It is not my role to consider the merits of the agreed decision of the parties to the grant of development consent. If there is no jurisdictional barrier, pursuant to s 34(3)(a) of the LEC Act I must make the orders agreed by the parties. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council’s Statement of Facts and Contentions.
Satisfaction as to Jurisdiction
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Regarding jurisdiction and taking into account the parties’ advice in the Statement, I am satisfied in regard to the following relevant matters.
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The DA was made by Artazan Property Group Pty Ltd (APG) on 1 August 2024 with the consent of the owner of the Site.
Bushfire Prone Land
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Section 4.14(1) of the EPA Act provides that development consent cannot be granted on bushfire prone land unless the consent authority:
(a) is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or
(b) has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements.
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The Site is identified as Bushfire Prone Land on the relevant Bush Fire Prone Land Map under s 10.3(2) of the EPA Act. The Site is mapped as “Vegetation Buffer” and constrained by “Vegetation Category 1”.
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The Amended DA is accompanied by a Bushfire Assessment Report and a Bushfire Risk Assessment Certificate prepared by Mr Scott Jarvis of Sydney Bushfire Consultants. The report and certificate confirm the proposed development can comply with Planning for Bush Fire Protection 2019 (PBP) as required under s 4.14(1) of the EPA Act. The Bushfire Assessment Report provides recommended mitigation measures and construction requirements to reasonably address the aims and objectives of the PBP.
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The Court is satisfied of the matters in s 4.14(1) of the EPA Act.
Pittwater Local Environmental Plan 2014 (PLEP)
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The Site is zoned C4 Environmental Living under the Pittwater PLEP. The proposed development is for the excavation and construction of a tunnel and lift shaft which is ancillary to the use of the Site as a “dwelling house”, which is permissible with consent in the C4 Zone. Demolition works are permissible with consent under cl 2.7 of the Pittwater LEP.
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Clause 2.3(3) of the PLEP requires the consent authority to have regard to the C4 zone objectives. The Court accepts the parties’ consideration and conclusion that the proposed development is consistent with the relevant C4 zone objectives. The Amended DA results in a reduction in excavation of 32% (from 195.49m³ to 132.9m³), and accordingly provides low-impact residential development and does not have an adverse effect on the values of the area. The Amended DA is designed appropriately to integrate with the site typography, the landscape is able to be retained and protect the vegetation at the Site.
Additional PLEP Provisions
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Because of the underground excavation nature of the proposed work, the Site location on the Pittwater waterfront and the steepness of the land, the PLEP provisions concerning excavation and geotechnical risk are applicable and reproduced from the parties agreed Statement as follows.
“The Amended DA is accompanied by a Geotechnical Investigation prepared by Crozier Geotechnical Consultants dated 29 January 2024 (Geotechnical Investigation) which involved drilling a borehole to 15 metres in depth. Groundwater was not encountered during the drilling of the borehole and, based on the groundwater monitoring, the borehole did not intersect a significant groundwater table. In that regard, the works will not likely lower the watertable below 1 metre AHD. No acid sulfate soils management plan is therefore required.
In relation to clause 7.2 (Earthworks), the Amended DA proposes excavation works for the lift shaft and tunnel. The Court can be satisfied that the matters under clause 7.2(3) have been taken into account. In reference to paragraphs 9-10 of the Joint Expert Report, the experts agree that the Amended DA will not have an adverse affect on the future use and development of the land. Additionally, an assessment against the matters under clause 7.2(3) are set out in the SEE at Section 4.5.2.
(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,
The Amended DA is supported by a Geotechnical Investigation and Amended Construction Management Plan prepared by Woolacotts Consulting Engineers dated 28 March 2025 (refer to Tab 4 of Exhibit EJF-2) (Construction Management Plan) which concludes that the proposed development will not disrupt nor have a detrimental effect on soil stability. The proposed excavation will not alter the natural geology of the Site as the lift shaft and tunnel will be designed to resist the ‘at rest’ soil and rock pressures. The construction of the lift shaft will protect the natural environment as it extends through variable layers of weathered bedrock for its upper half with higher strength bedrock at the lower half of the shaft. The completed reinforced concrete lift shaft and tunnel will be stronger than the surrounding soils and provides the cliff face with increased stability and reduced the risk of landslips.
The Amended DA will not disrupt the drainage patterns of the Site or locality as the drainage proposed as part of the tunnel structure will connect to the existing stormwater system.
(b) the effect of the development on the likely future use or redevelopment of the land,
As noted above, the experts agree that the Amended DA will not have an adverse affec on the future use and development of the land.
(c) the quality of the fill or the soil to be excavated, or both,
No fill is proposed in the Amended DA. The soil to be excavated has been assessed in the Geotechnical Investigation.
(d) the effect of the development on the existing and likely amenity of adjoining properties,
The proposed development will not result in unreasonable amenity impacts on adjoining properties. As discussed above, there will be no adverse impacts on soil stability and the Agreed Conditions include appropriate conditions for the excavation works to ensure it does not impact the amenity of adjoining properties. Notably, Condition 17 of the Agreed Conditions requires a monitoring program to be prepared.
(e) the source of any fill material and the destination of any excavated material,
No fill material is required for the proposed development. The destination of the excavated material is to be in accordance with the Agreed Conditions. The Waste Management Plan prepared by MRA Consulting Group dated 4 February 2025 (refer to Tab 1 of Exhibit EJF-1) describes the management of demolition and construction waste. Condition 30 of the Agreed Conditions includes pollution control and waste management measures.
(f) the likelihood of disturbing relics,
It is considered unlikely due to the location of the Site as well as previous developments that excavation will lead to the disturbance of relics. No Aboriginal sites have been recorded within the Site and the area has been subject to previous disturbance reducing the likelihood of surviving unrecorded Aboriginal sites. This is also confirmed in correspondence from the Aboriginal Heritage Office on 14 August 2024. Notwithstanding, Condition 31 of the Agreed Conditions includes measures in the event that any Aboriginal site or object is, or is thought to have been found.
(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,
The proposed development will not have adverse impacts on the Pittwater Waterway. The Waste Management Plan prepared by MRA Consulting Group dated 4 February 2025 (refer to Tab 1 of Exhibit EJF-1) confirms that the proposed development will not rely on the removal of excavated material through the Pittwater Waterway. The Estuarine Risk Management Report prepared by Horton Coastal Engineering dated 9 February 2025 (refer to Tab 2 of Exhibit EJF-2), as modified by the Estuarine Risk Management Advice (refer to Tab 5 of Note 2 of the s34 Agreement), confirms that the proposed development will not significantly change estuarine processes nor increase the level of risk in surrounding areas for the design event, as the movement of water and waves over the area seaward of the Site would not be significantly altered.
(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development,
The methodology proposed in the Construction Management Plan has been designed to ensure stability of the existing dwelling and the adjoining properties to minimise disruption to the existing landscaping and Pittwater foreshore;
The Agreed Conditions include several measures to mitigate the impacts of the proposed development, including:
• The installation of a monitoring program during construction works, at Condition 17;
• Implementation of recommendations in the Geotechnical Investigation to mitigate any geotechnical risk, at Conditions 9, 27, 34 and 36;
• Protection of wildlife, vegetation and trees, at Conditions 7, 20, 21, 22, 25, and 35;
• Development of Construction Environmental Management Plan, at Condition 11; and
• Management of estuarine risk, at Conditions 14 and 38.
(i) the proximity to and potential for adverse impacts on any heritage item, archaeological site or heritage conservation area.
...
Clause 7.7 (Geotechnical Hazards) applies to the Site. The Site is identified as “Geotechnical Hazard H1”. The Amended DA will appropriately manage waste water, stormwater and drainage across the land. The stormwater drainage proposed as part of the tunnel structure will connect to the existing stormwater system. The Geotechnical Investigation concludes the Site has a generally low to medium landslide risk to property and an acceptable risk to life. This report provides recommendations for good hillside development engineering to ensure that any geotechnical risk is properly managed and minimised and these recommendations have been included in the Agreed Conditions. The Construction Management Plan provides a detailed construction methodology for the proposed development which considers the geology of the Site having regard to the Geotechnical Investigation. The methodology proposed has been designed to ensure stability of the existing dwelling and the adjoining properties to minimise disruption to the existing landscaping and Pittwater foreshore. The Court can be satisfied of the matters in clause 7.7(4).
Clause 7.8 (Foreshore Area) applies to the Site. The foreshore area is limited to the western portion of the Site at the pool level. No proposed works are within the foreshore area of the Site.”
State Environmental Planning Policies (SEPPs)
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I have considered the jurisdictional provisions applicable to the Proposed Development that are raised by the following SEPPs, discussed in detail in the parties Statement at pars 48 to 61, and agree with the parties’ conclusions that no jurisdictional impediments arise pursuant to:
State Environmental Planning Policy (Resilience and Hazards) 2021
State Environmental Planning Policy (Sustainable Buildings) 2022
State Environmental Planning Policy (Transport and Infrastructure) 2021
Public Participation
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The DA was notified in accordance with the Respondent’s Community Consultation Plan between 9 August 2024 to 23 August 2024. One objection was received.
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On 10 April 2025, the Applicant was granted leave to further amend its DA in response to the Joint Expert Report.
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The Respondent informally notified the Amended DA to the objector who made the submission during the original notification period.
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The owner of the adjoining property to the south, made a submission by way of objection to the Amended DA. The submission raised the following concerns:
No significant changes to previously lodged application;
Limited assessment of landslide risk to the objector’s neighbouring property;
History of instability on shared existing rock structure;
Likelihood of most landslide events in Pittwater area is associated with residential development;
Overdevelopment of site that does not match geotechnical conditions;
Impact to native trees and wildlife; and
Noise and vibration impact.
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The parties advise that the above concerns have been addressed in the Agreed Conditions and the Amended DA has considered the submission.
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In addition, the adjoining owner addressed the Court at the on-site hearing and a number of the above concerns were addressed by the parties’ experts on Site.
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I am satisfied that the adjoining owner’s reasonable concerns were considered by the parties and the objector was accorded procedural fairness.
Conclusion
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For these reasons, based on the evidence before me, and my observations on Site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.
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As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
Notations
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The Court notes:
The Court notes that the Respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No DA2024/1016 to rely upon the following amended documents as filed with the Court:
Title
Prepared by
Date
1
Waste Management Plan Addendum
MRA Consulting Group
4 April 2025
2
Arboricultural Impact Assessment Report Addendum
Bluegum Tree Care and Consultancy
4 April 2025
3
Addendum - Geotechnical Assessment of Proposed Works
Crozier Geotechnical Consultants
9 April 2025
4
Construction Vibration Monitoring
E-Lab Consulting
31 March 2025
5
Estuarine Risk Management Advice
Horton Coast Engineering Pty Ltd
10 April 2025
6
Bushfire Assessment Report
Sydney Bushfire Consultants
9 April 2025
7
Bushfire Risk Assessment Certificate
Sydney Bushfire Consultants
9 April 2025
8
BASIX Certificate No. A1792291
A & Co Pty Ltd
17 April 2025
Orders
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The Court orders that:
The appeal is upheld.
Development Application No DA2024/1016, as amended, for the excavation and construction of a tunnel and lift shaft between the existing dwelling house and existing boat shed, and associated alterations to accommodate the lift shaft and tunnel on land legally described as Lot 61 in Deposited Plan 13620 and Lot 1 in Deposited Plan 456145 and known as 995 Barrenjoey Road, Palm Beach, NSW, 2108, is determined by the grant of development consent subject to the conditions at Annexure A.
L Byrne
Acting Commissioner of the Court
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Annexure A (251 KB, pdf)
Decision last updated: 17 June 2025
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