The Owners Strata Plan - No 4670 v Northern Beaches Council

[2025] NSWLEC 1012

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Owners Strata Plan – No 4670 v Northern Beaches Council [2025] NSWLEC 1012

Hearing dates:

Conciliation Conference 1 November 2024 (s 34 Agreement filed 22 November 2024)

Date of orders:

16 January 2025

Decision date:

16 January 2025

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent is granted to DA2023/1136 for demolition works and construction of a retaining wall and dividing fence at 28-30 Lauderdale Avenue, Fairlight NSW, 2094 being land identified as SP 4670, with ancillary drainage works on 17 and 19 Clifford Avenue, Fairlight NSW 2094 subject to conditions of consent at Annexure A.

(3) The Applicant is pay the Respondent’s costs thrown away in the sum of $1000, pursuant to s.8.15(3) of the Environmental Planning and Assessment Act1979, within 28 days of the date of these orders.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – rebuild retaining wall – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Manly Local Environmental Plan 2013, cl 23

Category:

Principal judgment

Parties:

The Owners Strata Plan No 4670 (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
P Clarke (Solicitor) (Applicant)
J Simpson (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2024/193252

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) from the refusal by the Northern Beaches Council (the Council) of Development Application No DA2023/1136 (the DA).

2. The DA seeks approval for the demolition of a failing retaining wall on the northern boundary of 28-30 Lauderdale Avenue, Fairlight, being Lot CP SP 4670 (the Site) and the construction of a partial new retaining wall and dividing fence in accordance with amended engineering plans prepared by VDM Consulting Engineers dated November 2024 (Amended Plans).

3. The DA also seeks approval for ancillary drainage works behind the new retaining wall on two adjoining properties, specifically 17 and 19 Clifford Avenue, with owners consent to the DA having been provided by the owners of those properties (but with no ancillary works proposed on 13 or 15 Clifford Avenue).

4. 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 held on site and at Council’s chambers.

5. 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 partial demolition and reconstruction of part of the rear retaining wall, dividing fence, and ancillary drainage works, subject to the agreed conditions of consent at Annexure A.

6. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent to the DA 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. 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

7. Regarding jurisdiction and taking into account the parties’ advice in the Statement, I am satisfied in regard to the following relevant matters.

State Environmental Planning Policies (SEPPs)

8. 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 paragraphs 22-26, and agree with the parties’ conclusions that no jurisdictional impediments arise pursuant to:

1. (1) State Environmental Planning Policy (Biodiversity and Conservation) 2021

2. (2) State Environmental Planning Policy (Transport and Infrastructure) 2021

3. (3) State Environmental Planning Policy (Resilience and Hazards) 2021

Manly Local Environmental Plan 2013 (LEP)

9. Pursuant to the LEP the Site is zoned “R1 – General Residential”. The DA is consistent with the objectives of the zone. The works being undertaken are essentially demolition and rebuild works at the rear outdoor area of the Residential Flat Buildings (RFB) and do not involve changes to the RFB itself. In that regard, the DA does not engage a number of the LEP controls. I note the following relevant controls discussed by the parties in the Statement and directly quoted as follows:

“18 Clause 6.4 of the LEP relates to stormwater management. The works proposed in the DA will involve stormwater management provision and will not result in stormwater being discharged onto adjoining properties in an inappropriate way, nor will there be any increase in impervious surfaces on the Site. Accordingly, this clause is considered to have been complied with.

19 ………….

20 Clause 6.9 of the LEP relates to development within the foreshore building line, which the Site is located within. The retaining wall the subject of the DA (Wall) is located at the rear of the Site. The wall cannot be seen from the streetscape and is mostly obscured from adjoining land. The Wall cannot be seen from the nearby Middle Harbour foreshore or waterway. The proposed works only involve rectification of the existing structure, and the only physical change that is proposed to the height, configuration, or materials that comprise the existing Wall is the installation of a steel reinforcing structure immediately in front of the Wall. As such, the proposed works are assessed as being consistent with the objectives and requirements of this clause.”

Environmental Planning and Assessment Regulation 2021

10. The DA, as amended, no longer proposes any works on land for which owner’s consent has not been granted, namely Nos. 13 and 15 Clifford Avenue. Accordingly, s 23(1) of the Regulation has been satisfied.

Public Consultation

11. The DA was notified by the Council between 8 and 22 September 2023 in accordance with Council’s notification policy. There were two written submissions received by Council, both objecting to the DA. A number of neighbouring residents, including those who had made written submissions, attended the s 34 conference on Site and at their request the Court visited the objectors’ residences in Clifford Avenue to the rear of the Site and heard their concerns regarding the DA.

12. I am satisfied that the objectors’ reasonable concerns were considered by the parties and the objectors were accorded procedural fairness. I note that by the time of the conciliation conference, the relevant neighbouring property owners adjoining the rear wall had provided their consent to the DA to enable the suite of works to be done that require entry and work on their land as expressly stated in the orders of the Court in this judgment granting the development consent.

Conclusion

13. 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.

14. 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.

Notation

15. The Court notes that the Respondent has agreed, as the relevant consent authority, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA2023/1136 to rely upon the amended engineering detail prepared by VDM Consulting Engineers (Revision B) dated November 2024.

Orders

16. The Court orders that:

1. The appeal is upheld.

2. Development Consent is granted to DA2023/1136 for demolition works and construction of a retaining wall and dividing fence at 28-30 Lauderdale Avenue, Fairlight NSW, being land identified as SP 4670, with ancillary drainage works on 17 and 19 Clifford Avenue, Fairlight NSW 2094 subject to conditions of consent at Annexure A.

3. The Applicant is pay the Respondent’s costs thrown away in the sum of $1000, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act NSW 1979, within 28 days of the date of these orders.

L Byrne

Acting Commissioner of the Court

Annexure A

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Decision last updated: 17 January 2025