Whitfield v Northern Beaches Council

[2025] NSWLEC 1738

Land and Environment Court

New South Wales

Medium Neutral Citation:

Whitfield v Northern Beaches Council [2025] NSWLEC 1738

Hearing dates:

Conciliation conference held on 2 and 3 October 2025

Date of orders:

3 October 2025

Decision date:

03 October 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The modification application MOD2025/0006 is approved.

(2) Development consent DA2022/0409 is modified in the terms in Annexure ‘A’.

(3) Development consent DA2022/0409 as modified by the Court is Annexure ‘B’.

Catchwords:

DEVELOPMENT APPEAL – modification application – residential development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act1979 (NSW), s 4.55

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

Environmental Planning and Assessment Regulation 2021 (NSW), s 113

Cases Cited:

Whitfield & McLenaghan v Northern Beaches Council [2023] NSWLEC 1795

Whitfield & McLenaghan v Northern Beaches Council (No 2) [2024] NSWLEC 1288

Category:

Principal judgment

Parties:

Vivienne Whitfield (First Applicant)
Anthony McLeneghan (Second Respondent)
Northern Beaches Council (Respondent)

Representation:

Counsel:
J Ede (Solicitor)(Respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Respondent)

Other:
Vivienne Whitfield (Self-represented) (First Applicant)
Anthony McLeneghan (Self-represented) (Second Applicant)

File Number(s):

2024/447084

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an application MOD2025/0006 to the Court, seeking approval to modify a development consent DA2022/0409 (the Consent) as modified by the Court in the decision Whitfield & McLenaghan v Northern Beaches Council [2023] NSWLEC 1795 and Whitfield & McLenaghan v Northern Beaches Council (No 2) [2024] NSWLEC 1288 for alterations and additions to a dwelling house at 79 Riverview Road, Avalon Beach legally identified as Lot 21 in Deposited Plan 18005 (the Site).

2. The Modification Application filed with the Court on 2 December 2024 sought to modify the Consent granted to the DA by:

1. increasing the width of the first floor deck by 2.5m on the northern side; and

2. increasing the width of the first floor deck by 0.565m on the southern side.

3. The Modification Application, as amended, proposes extending the northern end of the previously approved first floor balcony adjacent to the living area by 2.415m in the northern direction as well as the above described extension to the southern side.

4. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which has been held on 2 and 3 October 2025. I presided over the conciliation conference which commenced with a site view and hearing from a representative of the adjoining neighbour to the north of the Site.

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. This decision involved the Court approving the Modification Application subject to conditions.

6. 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. 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.

7. The parties’ decision involves the Court exercising the function under s 4.55 of the EPA Act to approve the modification to the Consent.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 4.55 of the EPA Act to modify a consent. The Respondent explained how the jurisdictional prerequisites have been satisfied in a jurisdictional note provided to the Court which I summarise below.

9. The Proposed Modification, including as varied by agreed conditions of consent is “substantially the same” as the development the subject of the Consent for the purpose of s 4.55(2)(a) of the EPA Act. The difference between the Consent and the Proposed Modification is confined the elongation of the first floor balconies as follows:

1. northern balcony by 2.415m, together with a 1.65m high x 2m wide privacy screen along the northern end of the balcony commencing at the north eastern corner of the enlarged balcony;

2. southern balcony by 0.565m, together with a planter box at the southern end of that balcony as described in the conditions.

10. Accordingly, the privacy impacts on the adjoining neighbours have been appropriately mitigated and there is no radical change between the two developments so that they can properly be characterised as being substantially the same.

11. The Proposed Modification was notified in accordance with the Council’s Community Participation Plan: two submissions were received. These submissions have been taken into consideration by the parties in reaching their agreement.

12. The reasons for the grant of the Consent are to be taken into consideration in determining an application to modify a consent pursuant to s 4.55(3) of the EPA Act. The parties have considered the reasons for the grant of the Consent, as set out in the Court’s judgments: Whitfield & McLenaghan v Northern Beaches Council [2023] NSWLEC 1795 and Whitfield & McLenaghan v Northern Beaches Council (No 2) [2024] NSWLEC 1288.

13. 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. I adopt the reasons given by the parties.

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.

Notations:

15. The Court notes:

1. The Respondent as the relevant consent authority has agreed under s 113(4) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending Modification Application No. MOD2025/0006 to include the amended Architectural Plans prepared by JJ Drafting Australia Pty Limited described below:

1. Site Analysis Plan – 907/21 – MOD:01 – Rev C dated 7 February 2025

2. Proposed First Floor Plan – 907/21 – MOD:02 – Rev C dated 7 February 2025

3. Proposed West Elevation Plan – 907/21 – MOD:03 – Rev C dated 7 February 2025

2. The amended plans were filed with the Court on 10 February 2025.

Orders:

16. The Court orders:

1. The modification application MOD2025/0006 is approved.

2. Development consent DA2022/0409 is modified in the terms in Annexure ‘A’.

3. Development consent DA2022/0409 as modified by the Court is Annexure ‘B’.

E Espinosa

Commissioner of the Court

Annexure A (176 KB, pdf)

Annexure B (915 KB, pdf)

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