Vigor Master Pty Ltd v Northern Beaches Council

[2025] NSWLEC 1367

Land and Environment Court

New South Wales

Medium Neutral Citation:

Vigor Master Pty Ltd v Northern Beaches Council [2025] NSWLEC 1367

Hearing dates:

Conciliation Conference 12 February 2025

Date of orders:

27 May 2025

Decision date:

27 May 2025

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The appeal is upheld;

(2) Development consent is granted to Development Application No. 2023/1504, as amended for the erection of an additional building to the existing seniors living development on land at 8 Lady Penrhyn Drive, Beacon Hill, NSW being Lot 806 in DP 752038, subject to conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – seniors living – addition to existing - conciliation conference – 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, s 23

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

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

Warringah Local Environmental Plan 2000, cll 12, 29

Category:

Principal judgment

Parties:

Vigor Master Pty Ltd ABN 53 095 341 432 (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
T Robertson SC (Applicant)
S Patterson (solicitor) (Respondent)

Solicitors:
Vigor Master P/L in-house solicitor (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2024/29851

Publication restriction:

No

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) against Northern Beaches Councils (the Council) deemed refusal of development application DA2023/1504 which seeks consent for an additional building (including associated changes to driveways and landscaping) in the existing seniors living development located at 8 Lady Penrhyn Drive Beacon Hill, being Lot 806 in DP 752038 (the site). The new building is described as ‘Building 9’.

2. The development application seeks consent for the erection of Building 9 containing four independent living units (ILUs) for “housing for older people or people with a disability” and other changes to the existing and proposed development on site, comprising:

1. Basement Carpark (RL97.4) - parking for 7 cars, 3 bicycles, lobby, lift, stair access and bin storage;

2. Ground Floor (RL100.4) - lift and stair access, 2 x 3 bedroom ILUs each with bathroom, kitchen / living area, balcony and storage.

3. First Floor (RL103.6) - lift and stair access, 2 x 3 bedroom ILUs each with bathroom, kitchen / living area, balcony and storage.

4. Site preparation and excavation works.

5. Stormwater infrastructure.

6. Demolition of existing access roads and re-construction of new access roads;

7. Construction of a new driveway through the basement of Building 9 to service Building 8.

8. Modifications to Building 8 to change its vehicular access, lower the basement level, and add an additional basement storage level.

9. Changes to the public road works.

10. Retaining walls, paths, steps and landscaping. (“the application”)

3. The matter was originally listed as a hearing but as the parties had reached agreement and at their request the Court converted the listing to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) which was held on Site.

4. 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. The agreed position is for the Court to uphold the class 1 appeal and grant development consent to the proposed development with conditions at Annexure A.

5. 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 to this appeal 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

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

Owner’s Consent

7. The application has been made by Vigor Master Pty Ltd, with the consent of the owner of the Site to which the application relates, 8 Beacon Hill Investment Pty Ltd, in accordance with s 23(1)(b) of the Environmental Planning and Assessment Regulation 2021. A copy of the landowner’s consent is provided as part of the class 1 application.

Environmental Planning Instruments

8. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the site. A BASIX Certificate has been lodged with the application confirming compliance with SEPP BASIX requirements.

9. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies to the site and requires consideration to be given to the potential for the site to be contaminated and that any necessary works be undertaken accordingly. As the proposed building is within the existing seniors living development approved under DA2009/0800, any contamination issues have been assessed and addressed under DA2009/0800 for the site. The vacant area where the proposed Building 9 is located has no known history of contamination or prior contaminating use. Further consideration of contamination is not required under s 4.6 of the SEPP RH.

10. Warringah Local Environmental Plan 2000 (WLEP) applies to the Site. The jurisdictional prerequisites imposed by the WLEP are addressed in the Statement as follows:

1. The site is located within the B2 Oxford Falls Valley Locality under the WLEP. “Housing for older people or people with disabilities” is permissible with consent as a Category Two development listed under the locality statement for B2 in Appendix B of the WLEP.

2. Clause 12(3)(b) of the WLEP requires, before granting consent for development classified as Category Two or Three, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement, but nothing in a description of desired future character creates a prohibition on the carrying out of development.

11. The application is consistent with the desired future character of the B2 locality for the reasons set out in detail in the Statement at paragraph [16(ii)(dot points 1 to 4)] which I accept.

12. The locality statement requires development to conform with housing density standards. The maximum housing density is 1 dwelling per 20 ha of site area. However on land that adjoins a locality primarily used for urban purposes and on which a dwelling house is permissible, there is no maximum housing density if the development is for the purpose of “housing for older people or people with a disability” and the development complies with the minimum standards set out in cl 29. Clause 29 of the WLEP contains the design requirements for “housing for older people or people with a disability”.

13. The application complies with the requirements under cl 29 for the reasons set out in detail in the Statement at paragraph [16(iii)(dot points 1 to 5)] which I accept.

Public Consultation

14. The development application was notified from 3 November 2023 to 1 December 2023 in accordance with Council’s Community Participation Plan. Seven (7) submissions were received during the notification period and considered by the Council. Following the s 34 conference on 21 August 2024 the Court approved amendment of the DA plans which were further notified to the objectors. The application was further amended on 10 December 2024 with leave of the Court and notified to the resident objectors from 12 December 2024 to 10 January 2025. Three (3) submissions were received.

15. A number of residents of the existing seniors living development addressed the Court at the s 34 Conciliation Conference on site on 12 February 2025. I am satisfied that the objectors reasonable concerns were considered by the parties and the objectors were accorded procedural fairness.

Conclusion

16. 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.

17. 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.

Orders

18. The Court orders:

1. The appeal is upheld;

2. Development consent is granted to Development Application No. 2023/1504, as amended, for the erection of an additional building to the existing seniors living development on land at 8 Lady Penrhyn Drive, Beacon Hill, NSW, being Lot 806 DP 752038, subject to conditions in Annexure A.

L Byrne

Acting Commissioner of the Court

**********

29851.24 Annexure A (414 KB, pdf)

Decision last updated: 27 May 2025