88 Republic of Gladys Pty Ltd ATF 88 Republic of Gladys Unit Trust v Northern Beaches Council

Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide, July 2015
NSW Department of Planning and Environment, Seniors Housing Design Guide, November 2023

Category: Principal judgment

Parties: 88 Republic of Gladys Pty Ltd ATF 88 Republic of Gladys Unit Trust (Applicant)
Northern Beaches Council (Respondent)

Representation: Counsel:
G Visentin (Solicitor) (Applicant)
C Patterson (Solicitor) (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2024/439996

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the deemed refusal of DA2024/1390. The DA seeks consent for demolition and construction of seniors housing at 12-14 Gladys Avenue, Frenchs Forest (site).

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

3. The Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg) to the Applicant amending DA2024/1390 in accordance with the documents listed below:

| Approved Plans | | Plan Number | Revision Number | Plan Title | Drawn By | Date of Plan | | 24_041 DA-A- 013 | G | Site Plan | Smith & Tzannes | 13 June 2025 | | 24_041 DA-A- 014 | G | Demolition Plan | Smith & Tzannes | 13 June 2025 | | 24_041 DA-A- 015 | G | Excavation & Fill plan | Smith & Tzannes | 13 June 2025 | | 24_041 DA-A- 100 | G | Roof Plan | Smith & Tzannes | 13 June 2025 | | 24_041 DA-A- 101 | G | Level 5 | Smith & Tzannes | 13 June 2025 | | 24_041 DA-A- 102 | G | Level 4 | Smith & Tzannes | 13 June 2025 | | 24_041 DA-A- 103 | G | Level 3 | Smith & Tzannes | 13 June 2025 | | 24_041 DA-A- 104 | G | Level 2 | Smith & Tzannes | 13 June 2025 | | 24_041 DA-A- 105 | G | Level 1 | Smith & Tzannes | 13 June 2025 | | 24_041 DA-A- 106 | G | Level 0 | Smith & Tzannes | 13 June 2025 | | 24_041 DA-A- 200 | G | Elevations - East and South | Smith & Tzannes | 13 June 2025 | | 24_041 DA-A- 201 | G | Pavillion A - West | Smith & Tzannes | 13 June 2025 | | 24_041 DA-A-202 | G | Lower Pavillion B&C - Elevations | Smith & Tzannes | 13 June 2025 | | 24_041 DA-A- 203 | G | Building A - North Elevation | Smith & Tzannes | 13 June 2025 | | 24_041 DA-A- 204 | G | Lower Pavillion B&C - Elevations | Smith & Tzannes | 13 June 2025 | | 24_041 DA-A- 205 | G | Entry Detail Elevation | Smith & Tzannes | 13 June 2025 | | 24_041 DA-A- 206 | G | Sections | Smith & Tzannes | 13 June 2025 | | 24_041 DA-A- 207 | G | Sections | Smith & Tzannes | 13 June 2025 | | 24_041 DA-A- 208 | G | Sections | Smith & Tzannes | 13 June 2025 | | 24_041 DA-A- 209 | G | Sections | Smith & Tzannes | 13 June 2025 | | 24_041 DA-A- 807 | G | Accessibility Typical Floor Plates | Smith & Tzannes | 13 June 2025 | | 1-10 | F | Landscape Plans | Paul Scrivener | 30 May 2025 | | Document Title | Version Number | Prepared By | Date of Document | | Acoustic Review & Opinion | 1 | Noel Child | 6 June 2025 | | BASIX Certificate | 1767473M_02 | Smith & Tzannes | 8 July 2025 | | Updated clause 4.6 variation request – Floor Space Ratio | | Boston Blyth Fleming | 2 June 2025 | | Further updated clause 4.6 variation request – Height | | Boston Blyth Fleming | 19 June 2025 | | Design Verification Statement | Revision B | Smith & Tzannes | 1 August 2025 |

4. As part of the conciliation conference process, 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 upholding the appeal for the amended application and granting development consent to the amended DA subject to conditions of consent.

Jurisdictional Prerequisites

5. As part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

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.

7. In considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that there “are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement” and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60]-[65].

8. I have carried out the required jurisdictional check: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [202]. For the reasons set out below, 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.

Owner’s consent

9. Owner’s consent accompanied the DA for both sites as required by s 23 of the EPA Reg, as described in the jurisdictional statement.

Community notification and objections

10. The Respondent notified the DA between 23 October 2024 to 6 November 2024. Six submissions were received, with one written objection strongly pressed at the conciliation conference.

11. As the parties have reached agreement, the Court is not able to consider the merits of the DA. The parties have advised the Court that they considered the concerns raised in the written objections.

State Environmental Planning Policy (Housing) 2021

12. Part 5 Housing for seniors and people with a disability of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) is relied on by the proposed development, which is otherwise prohibited in the zone under the Warringah Local Environmental Plan 2011 (WLEP). The site is zoned R2, and Part 5 can therefore be relied on pursuant to ss 79 and 81. None of the exclusions in s 80 apply. The proposed development is therefore permissible pursuant to s 81.

13. The parties agree and I accept that all the development standards pursuant to ss 84, 85, 93, 95, 97 are complied with, as follows:

14. The site area is over 1,000m2, at 4,704m2.

15. The site’s frontage is over 20m at the building line.

16. The height provisions of 84(2)(c) do not apply as s 174 of the Housing SEPP permits residential flat buildings on the land. Notwithstanding, the height written request prepared by Boston Blyth Fleming filed October 2025 adequately addresses the breach of 1.216m pursuant to cl 4.6 of the WLEP and is well founded. I accept that the Applicant has demonstrated that there are sufficient environmental planning grounds and that compliance is unnecessary or unreasonable.

17. All service equipment is below 11.5m, as shown on the architectural plans.

18. The Statement of Environmental Effects prepared by BBF Town Planners dated October 2024 (SEE) and Access Report prepared by Accessibility Solutions dated 17 September 2024 demonstrates that the standards within Sch 4 have been met, that the site is located within an accessible area and has access to the requisite facilities and services.

19. The parties set out in the jurisdictional statement that the development will be connected to a reticulated water system and sewage disposal, as currently available to the site.

20. The SEE sets out that the Seniors Housing Design Guide has been considered and addressed.

21. The parties set out in the jurisdictional statement that all non-discretionary development standards at s 108 are complied with, except building height and Floor Space Ratio (FSR). I have addressed the height issue further above. I accept that the variation of 0.3:1 to the FSR standard of 0.5:1 has been adequately addressed by the written request prepared by BBF Town Planners dated 2 June 2025 (FSR written request). The FSR written request addresses the legally mandatory matters of cl 4.6 of the WLEP to support to variation and is well founded.

22. Chapter 4 of the Housing SEPP applies to the amended DA. Section 147 of the Housing SEPP requires consideration of the design principles contained in Sch 9 and the Apartment Design Guide (ADG).

23. Relevantly, s 29 of the EPA Reg requires that residential apartment development must be accompanied by a statement prepared by a qualified designer in relation to the design principles within Sch 9 of the Housing SEPP and Pts 3 and 4 of the ADG.

24. The parties submit and I accept that they have considered the advice of the Council’s Design and Sustainability Advisory Panel.

25. The parties agree and I accept that the amended DA meets the provisions of the Housing SEPP on the basis of the Design Verification Statement completed by the nominated qualified designer Peter Smith (NSW Architect’s registration number 7024) dated August 2025.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies to the site. The parties agree that the site has a long history of residential use and there are no indications of contamination. The parties agree and I accept, that the provisions of s 4.6 of SEPP RH have been satisfied.

State Environmental Planning Policy (Sustainable Buildings) 2021

19. The State Environmental Planning Policy (Sustainable Buildings) 2021 (SEPP SB) applies to the proposed development. The amended DA is accompanied by an amended BASIX Certificate. I accept the parties’ agreement that the provisions of SEPP SB have been met, including s 2.1(5) embodied emissions.

Warringah Local Environmental Plan 2011

20. The subject site is zoned R2 Low Density Residential. The proposal is prohibited in the zone, but permissible with consent under the Housing SEPP. Pursuant to cl 2.3 of the WLEP, I accept that regard has been had to the objectives of the zone. Clause 2.7 permits demolition with consent, as sought by the proposal.

21. Clause 4.3 height of buildings permits a maximum building height of 8.5m, however the height provisions of the Housing SEPP prevail.

22. Clause 6.2 earthworks applies. The parties set out their consideration of the provisions in the jurisdictional statement, as supported by the Geotechnical Report prepared by Crozier Geotechnical Consultants dated 21 August 2025 (Geotechnical Report) and conditions of consent. I accept that the parties have adequately considered the provisions.

23. Clause 6.4 development on sloping land applies. I accept that the provisions have been satisfied on the basis of the Geotechnical Report and that risks associated with landslides, stormwater discharge and existing subsurface conditions may improve as a result of the proposed development.

Heads of consideration

24. On the basis of the material accompanying the Class 1 appeal and the jurisdictional statement, I accept that the relevant matters for consideration pursuant to s 4.15(1) of the EPA Act have been adequately considered.

Conclusion

25. 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.

26. 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.

27. 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.

Orders

28. The Court orders that:

29. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the agreed costs of the Respondent that are thrown away as a result of amending the Development Application in the agreed amount of $10,000 to be paid within 28 days of the orders.

30. The appeal is upheld.

31. Development Application DA2024/1390 for demolition works and construction of seniors housing at 12-14 Gladys Avenue, Frenchs Forest NSW 2086 is determined by the grant of consent subject to the conditions set out in Annexure A.

S Porter

Commissioner of the Court

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Annexure A (563 KB, pdf)