Modify Homes Pty Ltd v Northern Beaches Council

[2025] NSWLEC 1464

Land and Environment Court

New South Wales

Medium Neutral Citation:

Modify Homes Pty Ltd v Northern Beaches Council [2025] NSWLEC 1464

Hearing dates:

Conciliation conference on 26 June 2025

Date of orders:

27 June 2025

Decision date:

27 June 2025

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1) The applicant is to pay the Council’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as a result of the amendment to the development application as agreed or assessed.

(2)   The appeal is upheld.

(3)   Development Application DA2024/0199 lodged with the Council on 4 March 2024 for alterations and additions to the existing building and use as two specialised retail premises in relation to the property located at 42 Balgowlah Road, Balgowlah is approved subject to the conditions of consent contained at Annexure A.

Catchwords:

APPEAL – development application – retail premises – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

Manly Local Environmental Plan 2013, cll 4.3, 4.4, 5.10, 6.1, 6.4, 6.12

State Environmental Planning Policy (Industry and Employment) 2021, ss 3.1, 3.6; Sch 5

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

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

Texts Cited:

Manly Development Control Plan 2013

Northern Beaches Community Participation Plan 2019

Category:

Principal judgment

Parties:

Modify Homes Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
T Ward (Solicitor)(Applicant)
M Domingo (Solicitor)(Respondent)

Solicitors:
Pikes and Verekers Lawyers (Applicant)
Northern Beaches Council Respondent)

File Number(s):

2024/00386778

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against Northern Beaches Council’s refusal of development application DA2024/0199, which sought consent for alterations and additions to the existing building and its use as two specialised retail premises at 42 Balgowlah Road, Balgowlah (Lot 2 in DP 530316) (site).

2. The Site is generally regular in shape with a frontage of 34.14m along Quirk Road and a secondary frontage of 50.595m along Quirk Road. The Site has a surveyed area of 1725m² and accommodates an existing one and two-storey commercial building.

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 first held on 9 April and 26 June 2025.

4. After the preparation of amended plans and documents by the applicant the parties now propose resolution of the proceedings in accordance with the terms outlined in their executed s 34 written agreement dated 9 May 2025 (Agreement).

5. 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 decision involves the Court exercising the functions under s 4.16 of the EPA Act to grant consent to the DA.

6. The pre-conditions that must be satisfied before the Court can exercise its functions are identified in a written submission by the parties.

7. After a consideration of the submission I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions for the following reasons.

Preconditions

Owner’s consent

8. The site is owned by the applicant and owners consent has been provided.

Manly Local Environmental Plan

9. The site and surrounding properties to the north and west are zoned E3 Productivity Support pursuant to the Manly Local Environmental Plan 2013 (LEP).

10. The proposed development is permissible with consent in the E3 zone.

11. The parties agree and I accept that the proposed development is consistent with the objectives of the E3 zone.

12. The maximum height of building on the site pursuant to cl 4.3 of the LEP is 11m. The DA is under the maximum height at 10.55m.

13. The prescribed maximum floor space ratio (FSR) for the site under cl 4.4 of the LEP is 1:1 (1725m²). The DA complies with this development standard, as it contains a total ground floor area of 1,400.78m², resulting in a FSR of 0.81:1

14. The site is not a heritage item or located within a heritage conservation area. There are street trees located along Balgowlah Road which are listed as a heritage item under Pt 1, Sch 5 of the LEP (Item I3). The DA does not propose removal of these trees, and conditions are proposed for the protection and retention of these trees. I am satisfied that the requirements of cl 5.10 of the LEP are met.

15. The site is identified as Class 4 and 5 Acid Sulfate Soils for the purposes of cl 6.1 of the LEP. No significant earthworks are proposed and the development is not expected to materially impact the water table.

16. I am satisfied based upon the material provided as part of the Class 1 Application (including the stormwater plans) that the requirements of cl 6.4 of the LEP are satisfied.

17. The existing development on the site has all essential services as required. These services will continue to be provided as part of the proposed development, satisfying the requirements of cl 6.12 of the LEP.

State Environmental Planning Policy (Transport and Infrastructure) 2021

18. Section 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (T&I SEPP) provides that prior to determining a development application, the consent authority must give written notice to the electricity supply authority for the area.

19. The DA was referred to Ausgrid who raised no objections, subject to conditions. Those conditions are included in the conditions of consent.

20. I am satisfied that the provisions of s 2.48 of the T&I SEPP has been met

State Environmental Planning Policy (Resilience and Hazards) 2021

21. Section 4.6(1)(a) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) requires the consent authority to consider whether land is contaminated.

22. The Council’s records indicate that the site has been used for commercial/warehousing purposes for a significant period and is not known to be contaminated. In this regard it is considered that the site poses no risk of contamination and therefore, no further consideration is required under s 4.6 of the Resilience SEPP and I am therefore satisfied the site is suitable for the proposed use.

State Environmental Planning Policy (Industry and Employment) 2021

23. Section 3.6 of the State Environmental Planning Policy (Industry and Employment) 2021 (Industry SEPP) provides that a consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied that the signage is consistent with the objectives set out in s 3.1(1)(a) of the Industry SEPP, and that the signage satisfies the assessment criteria specified in Sch 5 of the Industry SEPP.

3.1   Aims, objectives etc

(1) This Chapter aims—

(a)  to ensure that signage (including advertising)—

(i)  is compatible with the desired amenity and visual character of an area, and

(ii)  provides effective communication in suitable locations, and

(iii)  is of high quality design and finish, and

(b)  to regulate signage (but not content) under Part 4 of the Act, and

(c)  to provide time-limited consents for the display of certain advertisements, and

(d)  to regulate the display of advertisements in transport corridors, and

(e)  to ensure that public benefits may be derived from advertising in and adjacent to transport corridors.

24. The DA proposes signage to which the Industry SEPP applies. The parties agree and I am satisfied that the signage is consistent with the objectives in s 3.1(1)(a) and satisfies the criteria in Sch 5. Additionally, conditions of consent have been proposed in relation to illumination of the signage.

Environmental Planning and Assessment Act 1979

25. The DA was notified in accordance with the Northern Beaches Community Participation Plan 2019.

26. A total of 17 submissions were received in objection to the DA, generally in relation to traffic/parking and amenity impacts.

27. Notice was provided to the objectors of the Amended DA, following the s 34 conciliation conference on 14 April 2024.

28. The parties have considered the submissions received from the objectors under s 4.15(1)(d) of the EPA Act. In response to the key issues raised by the objectors, the parties note:

1. Retail: Objectors raised concerns with retail premises in this area. Retail use is permissible within the E3 zone with development consent. A condition of consent, confirming that consent is granted only for “specialised retail premises” as defined in the LEP is proposed.

2. Traffic generation: Objectors raised concerns that no updated traffic generation report has been provided with the Amended DA. The applicant has since prepared a report, which is referred to in the s 34 agreement and concludes that the traffic generation of the site, as a consequence of the development, will be minimal. Additionally, all vehicular and pedestrian access to the site has been relocated from Balgowlah Road to Quirk Road.

3. Parking: Objectors raised concerns with parking spaces being within the warehouse. Conditions are proposed which limit the use of these parking spaces for staff only. The number of parking spaces provided is considered appropriate for the proposed staff numbers. The DA identifies that for the ground floor tenancy, six staff are proposed. A minimum of four spaces for this tenancy, and the other proposed tenancy is considered appropriate. The proposal otherwise complies with the parking requirements set out in the Manly Development Control Plan 2013. In terms of on-street parking on Quirk Road, the proposal will result in a loss of on-street parking (approximately five spaces). This is considered acceptable, as it will ensure that a new pedestrian footpath will be located wholly on the Council’s land. The current existing footpath is partly on the site.

Conclusion and orders

29. As the parties’ decision is within power I now dispose of the proceedings in accordance with that decision.

30. 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.

31. The Court notes that:

1. Northern Beaches Council, as the relevant consent authority, has agreed pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 to the applicant amending Development Application DA2024/0199 to rely upon the following plans and documents:

1. Amended architectural plans prepared by Modify:

Drawing No.	Drawing Name	Date
DA00, Revision D	Cover Page	11 March 2025
DA10, Revision E	Ground Floor Plan	10 April 2025
DA11, Revision E	First Floor Plan	10 April 2025

2. BCA Report prepared by Nest Consulting Group (Issue 4) dated 17 April 2025.

3. Access Report prepared by Nest Consulting Group (Issue 4) dated 17 April 2025.

4. Letter from Varga Traffic Planning Pty Ltd dated 6 May 2025.

2. The applicant filed the amended Development Application with the Court on 9 May 2025.

32. The Court orders that:

1. The applicant is to pay the Council’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as a result of the amendment to the development application as agreed or assessed.

2. The appeal is upheld.

3. Development Application DA2024/0199 lodged with the Council on 4 March 2024 for alterations and additions to the existing building and use as two specialised retail premises in relation to the property located at 42 Balgowlah Road, Balgowlah is approved subject to the conditions of consent contained at Annexure A.

S Dixon

Senior Commissioner of the Court

Annexure A (440 KB, pdf)

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Decision last updated: 27 June 2025