West v Northern Beaches Council

Case •

[2025] NSWLEC 1706

•

30 September 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: West v Northern Beaches Council [2025] NSWLEC 1706
Hearing dates: 10 September 2025
Date of orders: 30 September 2025
Decision date: 30 September 2025
Jurisdiction:Class 1
Before: Nichols AC
Decision:

The Orders of the Court are:

(1) The appeal is upheld.

(2) Development Application DA2024/1602 for demolition works and construction of a dwelling house including swimming pool at 15 Chester Place, Narraweena (Lot 2 DP 220116) is determined by the grant of consent subject to the conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – s 34AA conciliation conference – agreement reached – orders made

Legislation Cited:

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

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

Environmental Planning and Assessment Regulation 2021 (NSW), ss 23, 38

Warringah Local Environment Plan 2011, cll 5.21, 6.1, 6.2, 6.4

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

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

Texts Cited:

Planning for Bushfire Protection, 2019

Category:Principal judgment
Parties: Matthew West (Applicant)
Northern Beaches Council (Respondent)
Representation:

P Vergotis (Applicant)
S Patterson (Respondent)

Solicitors:
Madison Marcus (Applicant)
Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 2025/177970
Publication restriction: Nil

Judgment

  1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal by Northern Beaches Council of Development Application DA2024/1602.

  2. The Development Application, as amended, seeks consent for the demolition works and construction of a new dwelling house including a swimming pool at 15 Chester Place, Narraweena (Lot 2 DP 220116) (the site).

  3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties on 10 September 2025. I presided over the conciliation conference.

  4. At the conference, the Court read written submissions from the owners of two neighbouring properties who objected to the Development Application. The objectors raised concerns about the bulk and scale of the development, the landscaping, setbacks and protection of existing landscape features.

  5. Before and during the conference, the parties agreed on a range of amendments to the architectural plans, the landscaping plan, and associated documentation to address the concerns being raised by objectors and by Northern Beaches Council. The key amendments included decreasing the building height and modified landscape plans.

  6. Pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Northern Beaches Council has approved amending the Development Application in accordance with the amended plans and supporting material listed in the agreed conditions of consent.

  7. As the amended Development Application is the subject of Court proceedings, it is not required to be lodged on the NSW Planning Portal pursuant to s 38(4) of the EPA Regulation.

  8. On 10 September 2025, the parties submitted an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the amended Development Application, subject to conditions in Annexure A.

  9. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

  10. The signed agreement is supported by an agreed Jurisdictional Note from the parties, that sets out the jurisdictional prerequisites that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act.

Jurisdictional Prerequisites

  1. Based on the Jurisdictional Note, the documents that accompany the Class 1 Application, and the documents referred to in Annexure A, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

Landowner’s consent

  1. In accordance with s 23(1) of the EPA Regulation, I am satisfied that the amended Development Application was lodged with the consent of the owners of the land to which the development relates.

Public Notification

  1. The Development Application was publicly notified from 4 December 2024 to 18 December 2024 and two objections were received. The parties agree, and I accept that the matters raised have been adequately addressed through the amended plans and conditions imposed in the development consent.

  2. I also consider that the recent further amendments to the Development Application do not intensify or change the environmental impact of the amended form of the Development Application that was publicly notified, and accordingly public notification of the amended Development Application is not required.

Section 4.15 of the EPA Act

  1. The parties agree, and I accept, that all of the mandatory matters in s 4.15 of the EPA Act that are of relevance to the amended Development Application have been taken into consideration, and the Development Application (as amended) is acceptable, subject to the proposed conditions of consent in Annexure A. This includes:

  1. The relevant provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP);

  2. The relevant provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (B&C SEPP);

  3. The provisions of the Warringah Local Environmental Planning 2011 (WLEP);

  4. The likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality;

  5. The suitability of the site for the development; and

  6. The issues raised in public submissions.

State Environmental Planning Policy (Resilience and Hazards) 2021

  1. Section 4.6 of the Resilience and Hazard SEPP requires that a consent authority must not grant consent to any development on land unless it has considered whether a site is contaminated land or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use. The site has a history of residential use and there is no evidence of any potential for contamination. Consequently, the parties agree, and I am satisfied that the land is suitable for the purpose for which the development is proposed to be carried out.

  2. Based on the above, the parties agree, and I accept that the requirements of the Resilience and Hazards SEPP have been met.

State Environmental Planning Policy (Transport and Infrastructure) 2021

  1. Clause 2.48 in Part 2.3, Division 5 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 requires the satisfaction of the requirements of subcl (2). I am satisfied with the advice of the parties that the DA was referred to Ausgrid who raised no objection to the Proposed Development.

State Environmental Planning Policy (Sustainable Buildings) 2022

  1. The Proposed Development is supported by BASIX Certificate No. 1767387S_02 dated 16 October 2024 and NatHERS Certificate No. #HR-94OHC1-03 dated 16 October 2024.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

  1. I am satisfied with the advice of the parties that Chapter 2 of the B&C SEPP has been considered and that there will be no clearing of the land and the development introduces a landscape regime which will enhance the appearance of the development and the streetscape.

Warringah Local Environmental Plan 2011

  1. Clause 5.21 of the WLEP requires satisfaction that the development achieves the matters set out in subcll (2) and (3) in relation to flood planning. I am satisfied with the advice of the parties that the Land is not flood affected and that the objectives of clause 5.21 have been satisfied.

  2. Clause 6.1 of the WLEP requires consideration of the Acid Sulfate Soils Map. I accept the parties advice that the Land is mapped as ‘Class 5 Land’ and that the objectives of cl 6.1 have been satisfied.

  3. Clause 6.2 of the WLEP requires that earthworks be considered before granting development consent. The development does not contemplate any removal or importation of fill material. I am satisfied with the advice of the parties that the relevant matters under subcll (2) and (3) in relation to earthworks have been considered.

  4. Clause 6.4 of the WLEP requires sloping land to be taken into consideration including assessment of the landslide risk, stormwater discharge from the development site, and subsurface flow conditions. I am satisfied with the parties’ advice that the proposed development will not result in any increased risk in relation to landslides or cause any detrimental impacts in relation to the discharge of stormwater, or subsurface water flow.

  5. The parties agree, and I accept that the provisions of the WLEP have been taken into consideration in assessing the amended Development Application such that there is no jurisdictional barrier to the granting of consent to the amended Development Application. In particular, I note that:

  1. The proposed development is located in the R2 Low Density Residential zone under the WLEP and is permissible with development consent and is consistent with the objectives of the zone as required by cl 2.3 of the WLEP; and

  2. Pursuant to cl 4.3, the proposed development is compliant with the maximum height of buildings.

Planning for Bushfire Protection 2019

  1. The Land is located within a bushfire prone area. The proposal was referred to the Rural Fire Service and I am satisfied with the parties’ advice that the conditions of consent will fulfill the requirements of Planning for Bushfire Protection 2019.

Conclusion

  1. Based on the Statement of Environmental Effects, various expert reports accompanying the original and amended Development Application, and the recommended conditions of consent in Annexure A, the parties agree and I am satisfied that the amended Development Application can be approved taking into consideration the matters in s 4.15(1) of the EPA Act, including in regard to the applicable environmental planning instruments, the likely impacts of the development, the suitability of the site, the issues raised in submissions and the public interest.

  2. 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 against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act.

  3. I have considered the jurisdictional prerequisites, and 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.

  4. 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.

Orders

  1. The Court orders:

  1. The appeal is upheld.

  2. Development Application DA2024/1602 for demolition works and construction of a dwelling house including swimming pool at 15 Chester Place, Narraweena (Lot 2 DP 220116) is determined by the grant of consent subject to the conditions contained in Annexure A.

P Nichols

Acting Commissioner of the Court

Annexure A (279 KB, pdf)

**********

Decision last updated: 30 September 2025

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

6