Vigor Master Pty Ltd v Northern Beaches Council - [2025] NSWLEC 1520

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Vigor Master Pty Ltd v Northern Beaches Council [2025] NSWLEC 1520
Hearing dates: 7 and 10 March 2025
Date of orders: 21 July 2025
Decision date: 21 July 2025
Jurisdiction: Class 1
Before: Dixon SC
Decision:
The Court orders:
(1) The appeal is upheld.
(2) Development consent is granted to development application DA2023/1932 for a senior living development located at 72 to 76 Willandra Road, Oxford Falls NSW of Lot 807, Lot 810 and Lot 811 in DP 752038, subject to the conditions of consent in Annexure A.
(3) The exhibits are to be returned following publication of the judgment except for Exs A and 1.

Catchwords:
APPEAL – development application – senior living – biodiversity impacts – statutory interpretation

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), Pts 4, 5, ss 1.7, 4.15, 7.5, 7.13, 8.7
Biodiversity Conservation Act2016 (NSW), Pts 4, 6, 7, ss 1.3, 6.2, 6.4, 6.7, 6.15, 7.5, 7.7, 7.12, 7.13, 8.4
Rural Fires Act 1997 (NSW), s 100B
Water Management Act 2000 (NSW), s 91
Biodiversity Conservation Regulation 2017, ss 1.4, 1.5, 4, 6.31
State Environmental Planning Policy (Koala Habitation Protection) 2021
Warringah Local Environmental Plan 2000, Div 4, Pt 4, cll 12, 14, 56, 58
Warringah Local Environmental Plan 2011

Cases Cited:
Adrenaline Pty ltd v Bathurst Regional Council (2015) 97 NSWLR 207; [2015] NSWCA 123
Altre Partners Pty Ltd v Northern Beaches Council [2023] NSWLEC 1145
Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77
Planners North v Ballina Shire Council [2021] NSWLEC 120
Platform Architects Pty Ltd v Northern Beaches Council [2020] NSWLEC 185
Save Sydney’s Koala’s (Southwest) Inc v Lendlease Communities (Figtree Hill) Pty Ltd(No 2) [2021] NSWLEC 102
Universal Property Group Pty Ltd v Blacktown Council [2020] NSWCA 106

Texts Cited:
Australian Standard for the "Construction of buildings in bushfire-prone areas” AS 3959:2018

Category: Principal judgment
Parties: Vigor Master Pty Ltd (Applicant)
Northern Beaches Council (Respondent)
Representation:
Counsel:
T F Robertson SC (Applicant)
C Rose (Solicitor) (Respondent)
Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2024/122570
Publication restriction: Nil

JUDGMENT

Introduction

These proceedings arise following an appeal by Vigor Master Pty Ltd (applicant) pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (NSW) (EPA Act) against Northern Beaches Council’s (Council) refusal of its development application DA2023/1932 for the construction of a seniors’ living development at 72 to 76 Willandra Road, Oxford Falls (Lot 807, Lot 810 and Lot 811 in DP 752038) (site).
As the site and the surrounding privately owned bushland is designated as Category 1 Bushfire Prone Land, the development incorporates the clearing of vegetation to accommodate an Asset Protection Zone (APZ) around the built form. The proposed clearing has triggered an assessment of the biodiversity impacts of the development under the Biodiversity Conservation Act 2016 (NSW) (BC Act), and the Biodiversity Development Assessment Report (BDAR) has assessed the need for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWLEC 1520
Decision Date: 21 July 2025

CaseChat Overview and Summary

Vigor Master Pty Ltd, the applicant, appealed to the Land and Environment Court of New South Wales against a decision by the Northern Beaches Council, the respondent, to refuse development consent for a proposed senior living development at 72 to 76 Willandra Road, Oxford Falls, NSW. The applicant sought to develop a site comprising Lot 807, Lot 810 and Lot 811 in DP 752038. The dispute centred on whether the Council's decision to refuse development consent was lawful and whether the applicant's proposal met the criteria set out in the relevant planning and development legislation and policies.

The court had to determine whether the Council's decision to refuse development consent was legally sound and whether it appropriately considered all relevant factors. This included whether the refusal was based on relevant and material considerations, and whether the decision-making process complied with the applicable planning and development laws. Additionally, the court had to assess whether the applicant's proposal met the necessary planning and development standards, including environmental and community impact considerations.

The Court found that the Council's decision to refuse development consent was not based on all relevant considerations and failed to properly apply the criteria in the relevant planning and development laws. The court held that the Council had not appropriately assessed the applicant's proposal against the criteria for development consent, including the environmental and community impact considerations. The Court found that the applicant's proposal was consistent with the relevant planning and development policies and met the necessary standards for development consent. Accordingly, the Court held that the appeal should be upheld, and development consent should be granted subject to the specified conditions in Annexure A.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application DA2023/1932 for a senior living development located at 72 to 76 Willandra Road, Oxford Falls NSW of Lot 807, Lot 810 and Lot 811 in DP 752038, subject to the conditions of consent in Annexure A.

(3) The exhibits are to be returned following publication of the judgment except for Exs A and 1.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Vigor Master Pty Ltd v Northern Beaches Council [2025] NSWLEC 1520
Hearing dates:	7 and 10 March 2025
Date of orders:	21 July 2025
Decision date:	21 July 2025
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders: (1) The appeal is upheld. (2) Development consent is granted to development application DA2023/1932 for a senior living development located at 72 to 76 Willandra Road, Oxford Falls NSW of Lot 807, Lot 810 and Lot 811 in DP 752038, subject to the conditions of consent in Annexure A. (3) The exhibits are to be returned following publication of the judgment except for Exs A and 1.
Catchwords:	APPEAL – development application – senior living – biodiversity impacts – statutory interpretation
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), Pts 4, 5, ss 1.7, 4.15, 7.5, 7.13, 8.7 Biodiversity Conservation Act2016 (NSW), Pts 4, 6, 7, ss 1.3, 6.2, 6.4, 6.7, 6.15, 7.5, 7.7, 7.12, 7.13, 8.4 Rural Fires Act 1997 (NSW), s 100B Water Management Act 2000 (NSW), s 91 Biodiversity Conservation Regulation 2017, ss 1.4, 1.5, 4, 6.31 State Environmental Planning Policy (Koala Habitation Protection) 2021 Warringah Local Environmental Plan 2000, Div 4, Pt 4, cll 12, 14, 56, 58 Warringah Local Environmental Plan 2011
Cases Cited:	Adrenaline Pty ltd v Bathurst Regional Council (2015) 97 NSWLR 207; [2015] NSWCA 123 Altre Partners Pty Ltd v Northern Beaches Council [2023] NSWLEC 1145 Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 Planners North v Ballina Shire Council [2021] NSWLEC 120 Platform Architects Pty Ltd v Northern Beaches Council [2020] NSWLEC 185 Save Sydney’s Koala’s (Southwest) Inc v Lendlease Communities (Figtree Hill) Pty Ltd(No 2) [2021] NSWLEC 102 Universal Property Group Pty Ltd v Blacktown Council [2020] NSWCA 106
Texts Cited:	Australian Standard for the "Construction of buildings in bushfire-prone areas” AS 3959:2018
Category:	Principal judgment
Parties:	Vigor Master Pty Ltd (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: T F Robertson SC (Applicant) C Rose (Solicitor) (Respondent) Solicitors: Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2024/122570
Publication restriction:	Nil