Olsson v Northern Beaches Council

[2025] NSWLEC 1678

Land and Environment Court

New South Wales

Medium Neutral Citation:

Olsson v Northern Beaches Council [2025] NSWLEC 1678

Hearing dates:

Conciliation on 09 September 2025

Date of orders:

19 September 2025

Decision date:

19 September 2025

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA2024/0715, as amended, for alterations and additions to a dwelling house including the addition of a swimming pool at 11 Taylor Street, North Curl Curl, is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

APPEAL – development application – alterations and additions to an existing dwelling house – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979 (NSW), s 34, 34AA

Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 37, 38

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

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

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

Warringah Local Environmental Plan 2011, cll 4.3, 4.4, 6.2, 6.4

Cases Cited:

McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category:

Principal judgment

Parties:

Matthew Olsson (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
B Lennox (Solicitor) (Respondent)

Solicitors:
Mills Oakley Lawyers (Applicant)
SG Law (Respondent)

File Number(s):

2025/149906

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for alterations and additions to an existing dwelling house at 11 Taylor Street, North Curl Curl. The development application was refused by the Northern Beaches Local Planning Panel on 19 March 2025. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference commenced on 9 September 2025. I presided over the conciliation conference.

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 final signed agreement was filed the same date. The agreement follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation 2021). The amendments to the design of the proposed development include reconfiguration of the internal layout of the ground floor, relocation of the swimming pool to increase the landscaped area, a narrowing and elongation of the upper floor addition in order to retain view corridors across the site from adjacent properties, a reduction of the height of the upper floor addition by 170mm, and treatment of the window on the northern elevation to address issues of visual impact. The amendments address contentions concerning view loss, view sharing and overall height. The amended development application also includes an updated visual impact assessment and an updated preliminary geotechnical assessment.

4. The decision agreed upon 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 a Jurisdictional Statement, which provides the history of the appeal proceedings and sets out what the parties consider to be the jurisdictional matters required to be considered prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the joint report filed on 19 August 2025, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. 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. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works are for the purposes of a dwelling house, which is a permissible use in the R2 Low Density Residential zone pursuant to the Warringah Local Environmental Plan 2011 (WLEP).

• The proposed development complies with the height development standard that applies pursuant to cl 4.3 of the WLEP, and there is no floor space ratio development standard that applies to the site pursuant to cl 4.4 of the WLEP.

• The development application includes earthworks for the swimming pool. Based on the letter from White Geotechnical Group dated 10 September 2025, I have considered the matters set out in cl 6.2(3) of the WLEP.

• Clause 6.4 of the WLEP relates to development on sloping land, and applies to the site. Based on the preliminary geotechnical report dated 26 August 2025 and the Statement of Environmental Effects dated May 2024, I am satisfied of each of the matters in cl 6.4(3). Specifically:

1. The preliminary geotechnical report dated 26 August 2025 sets out the assessment of the risk associated with landslides, in satisfaction of cl 6.4(3)(a).

2. The Statement of Environmental Effects dated May 2024 confirms that the stormwater will be disposed of using the existing stormwater system, which means that there will be no or negligible impacts from stormwater discharge from the proposed development, in satisfaction of cl 6.4(3)(b).

3. The excavation is limited to excavation of sandstone bedrock, and no other subsurface disturbance is proposed, such that there will be no impact on the existing subsurface flow conditions, in satisfaction of cl 6.4(3)(c).

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH). As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

• The site is within the coastal environment area and parts of the site are within the coastal use area, pursuant to the SEPP RH. There is no development proposed in the coastal use area. Based on the location of the site, the extent of the alterations and additions as shown on the architectural plans, the avoidance of the coastal use area in the proposed works, and the preliminary geotechnical report dated 26 August 2025, I have considered each of the matters in ss 2.10(1) and 2.11(1)(a), and, consistent with ss 2.10(2)(a) and 2.11(1)(b)(i) I am satisfied that the development will not have any adverse impacts on the matters set out in ss 2.10(1) and 2.11(1)(a) of the SEPP RH.

• Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 24 August 2025. Based on the letter dated 12 September 2025 and the accompanying BASIX report and the Energy Score breakdown, I am satisfied of the requirement in s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022.

• The proposed development could affect an electricity power line or an electricity distribution pole, as a result of which s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 requires notification to the electricity supply authority and consideration of their response. Consistent with those requirements, Ausgrid was notified of the development application and I have considered the content of their response.

• The development application was notified between 21 June and 5 July 2024, and again between 17 and 31 July 2024. A total of 13 submissions were received. Following the Revision 3 plans, the resident objectors were again notified, and a number of written submissions were received in September 2025. I have considered the issues raised in all of the written submissions received. In addition, Mr Bray attended the conciliation conference and made oral submissions, together with his solicitor and town planner, who also made oral submissions on his behalf. I have considered the issues raised in those submissions. Although it is not necessary for me to be satisfied that those issues have been considered by the parties or responded to, I am satisfied that the issues raised by the resident objectors have been considered by the parties, and that changes have been made to the design of the development to respond to those issues.

6. Having reached the state of satisfaction that the decision is one that the Court could have made 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)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or 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.

Final outcome

8. The Court notes that:

1. Northern Beaches Council, as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant’s amendment to Development Application DA2024/0715, to include the following documents (‘Amended Application’):

1	Architectural Plans prepared by Scope Architects Pty Ltd A01 – Cover sheet Rev 04, 9 September 2025 A02 – Site Plan & Analysis Rev 04, 9 September 2025 A03 – Lower Ground Floor Plan Rev 03, 24 August 2025 A04 – Ground Floor Plan Rev 03, 24 August 2025 A05 – First Floor Plan Rev 04, 9 September 2025 A06 – Elevations Rev 04, 9 September 2025 A07 – Elevations Rev 04, 9 September 2025 A08 – Cross Sections Rev 03, 24 August 2025 A09 – Long Sections Rev 04, 9 September 2025 A10 – Shadow Diagrams – June 21 9am Rev 03, 24 August 2025 A11 – Shadow Diagrams – June 21 12pm Rev 03, 24 August 2025 A12 – Shadow Diagrams – June 21 3pm Rev 03, 24 August 2025 A13 – Shadow Diagrams – June 21 12pm & 3pm Rev 03, 24 August 2025 A14 – Calculations Rev 03, 24 August 2025	24 August 2025 and 9 September 2025
2	Updated Visual Impact Assessment prepared by Urbaine Design Group	4 September 2025
3	Updated Preliminary Geotechnical Report prepared by White Geotechnical Group	26 August 2025
4	BASIX Certificate No. A1742198_06	24 August 2025

9. The Court orders that:

1. The appeal is upheld.

2. Development Application DA2024/0715, as amended, for alterations and additions to a dwelling house including the addition of a swimming pool at 11 Taylor Street, North Curl Curl, is determined by the grant of consent subject to the conditions at Annexure A.

J Gray

Commissioner of the Court

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Annexure A (182 KB, pdf)

Decision last updated: 19 September 2025