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

Legislation Cited: Architects Act 2003 (NSW), Sch 7
Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), ss 29, 38
State Environmental Planning Policy (Housing) 2021, Ch 2, 4, 6, ss 15C, 16, 19, 20, 108, 147, 148, 149, 174, 179
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1
Warringah Local Environmental Plan 2011, cll 4.3, 4.6, 6.2, 6.4

Texts Cited: Australian Geomechanics Society 2007, “Landslide Risk Assessment and Management”, Australian Geomechanics Journal Vol. 42, No 1, March 2007

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 McKee (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
McKees Legal (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2025/410106

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This appeal is brought in accordance with s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) following the deemed refusal by Northern Beaches Council, of development application No. DA2025 seeking consent, as amended, for demolition works and construction of a residential flat building containing 27 apartments (including 6 infill affordable housing apartments) at Lot A in Deposited Plan 393276 and Lot B in DP393276, being 12-14 Gladys Avenue, Frenchs Forest New South Wales.

2. On 6 February 2026, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act), at which I presided.

3. At the conciliation conference, the parties reached an in-principle agreement on the matters in contention, subject to an adjournment that would permit the preparation of amended plans. I granted the adjournment, and a further adjournment on 6 March 2026 to permit parties to settle the final form of the agreement.

4. A signed agreement was filed with the Court on 16 March 2026, in accordance with s 34(10) of the LEC Act, and supporting material submitted on 19 March 2026.

5. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites, with respect to the following environmental planning instruments that must be satisfied before this function can be exercised.

6. The development application was made with the written consent of Jian Zhang, the owner of 12 Gladys Avenue, Frenchs Forest, Lot A in Deposited Plan 393276. Written consent has also been provided by Gladys Forest Pty Ltd, the owner of 14 Gladys Avenue, Frenchs Forest, being Lot B in Deposited Plan 393276

7. The subject site is zoned R2 Low Density Residential according to the Warringah Local Environmental Plan 2011 (WLEP) in which the development proposed in not permitted. However, the proposal is permissible in accordance with the provisions at ss 15C and 174 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) as the land is within a low and mid-rise housing area. For completeness, the proposal is for development for the purposes of in-fill affordable housing under Ch 2 of the Housing SEPP, and for residential flat buildings under Ch 4 of the Housing SEPP.

8. The height of buildings permitted on the site by cl 4.3 of the WLEP is 8.5 m. However, s 108 of the Housing SEPP prevails to the extent of any inconsistency between the two instruments and permits a maximum building height of 9.5 m.

9. Additionally, the proposal provides in excess of 15% of total gross floor area as affordable housing as defined in Ch 2 of the Housing SEPP so that an additional 30% floor space ratio (FSR) and building height is conferred on the site. As such, a maximum FSR of 1.04:1 and a maximum prescribed building height of 12.35 m apply to the residential flat building development on the land.

10. That said, minor exceedances beyond the maximum building height are evident in awning and balcony edge elements in locations where the site drops away suddenly in the vicinity of a rock escarpment that is to be retained.

11. A Clause 4.6 Variation Request – Height, prepared by BBF Town Planners dated 25 February 2026 states that the south-western corner of the upper-level roof of apartments B.23, B.31 and B.32 breach the 12.35 m building height incentive standard derived from s 16 of the Housing SEPP by between 440 mm (3.5%) and 2.127 m (17.2%).

12. I am satisfied that strict compliance with the standard is unreasonable or unnecessary because the proposed development is consistent with the objectives of the standard notwithstanding the non-compliance for the reasons summarised as follows:

13. the non-compliant building elements are located towards the rear of the property and will not be discernible in a streetscape context. The building height breaching elements are not located immediately adjacent to any residential development and so the exceedances may be described, quantitatively and qualitatively, as minor and reflective of the topographical characteristics of the site which falls approximately 26 m; and

14. the non-compliant building height elements will not give rise to any public or private view affectation given the location of the exceedances, and will not be discernible when viewed so as to adversely affect the scenic quality of Warringah’s coastal and bush environments. In relation to privacy, the exceedances will not themselves give rise to unacceptable privacy impacts given the distance and orientation of the breaching elements to neighbouring properties. Finally, the shadow diagrams demonstrate that the non-compliant building height elements will not result in non-compliant shadowing impacts to any neighbouring property between 9am and 3pm on 21 June and will not result in unreasonable overshadowing to the public domain.

15. I am also satisfied there are sufficient environmental planning grounds to justify the contravention of the standard for the reasons set out in the written request, summarised as follows:

16. Firstly, a fall of approximately 26 m across the site contributes to the exceedances that occur at the uppermost eaves and balcony at what might be described as the ‘leading edge’ of Building B.

17. Secondly, the distribution of the floor space on the site, when understood against the size and geometry of the lot, results in a FSR well below the maximum permitted and where the minor exceedances do not give rise to an inappropriate streetscape or adverse residential amenity.

18. Thirdly, the exceedances are minor and achieve the aim of the Housing SEPP and the objects of the EPA Act.

19. For the reasons set out above, I am satisfied the Applicant has demonstrated those matters required to be demonstrated at cl 4.6(3) of the WLEP.

20. In a jurisdictional statement prepared by the Applicant, the parties have set out the basis on which the Court can be satisfied that the proposal achieves those non-discretionary standards at s 19 of the Housing SEPP that, if complied with, prevent the consent authority from requiring more onerous standards, but for where standards in Ch 4 of the Housing SEPP apply by virtue of the terms at s 19(3) of the Housing SEPP.

21. Likewise, in respect of the relevant matters at s 20 of the Housing SEPP, I am satisfied on the basis of an agreed position of the parties that the form and massing of the proposed development is complimentary and compatible with surrounding development and consistent with that anticipated for infill development by the objectives and controls of the Housing SEPP, and that the proposed FSR reflects the desired future character of the Frenchs Forest Precinct which anticipates medium density housing forms located within and immediately adjacent to the recently gazetted town centre, and finally that the development will provide superior levels of amenity for future occupants whilst maintaining appropriate levels of amenity to the adjoining residential properties.

22. For the reasons stated at [7], the proposed development is also subject to provisions of Ch 6 of the Housing SEPP that deals with low to mid rise housing.

23. The parties agree, and I am satisfied, as to evidence of consistency with those non-discretionary development standards relevant to residential flat buildings in the R2 zone, as required by s 179 of Housing SEPP, but for height which I have dealt with at [11]-[14].

24. Where an application relates to residential apartment development, s 29 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) requires the application be accompanied by a statement by a qualified designer, defined in the Dictionary at Sch 7 as a person registered as an architect in accordance with the Architects Act 2003 (NSW).

25. The statement is required by s 29 of the EPA Regulation to verify matters that are relevant to those matters that must be taken into consideration when determining a development application for residential apartment development, at s 147 of the Housing SEPP.

26. The statement prepared by Mr Peter Smith dated 4 March 2026 (Arch Reg No 7024) is consistent with the requirements at s 29 of the EPA Regulation, and so permits the Court to take into consideration those matters at ss 147, 148 and 149 of the Housing SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021.

22. The parties are agreed that the Court can rely on the statement made in respect of site contamination at p 40 of the Statement of Environmental Effects prepared by Boston Blyth Fleming dated July 2025 to be satisfied that the site is suitable for the development proposed in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP).

State Environmental Planning Policy (Sustainable Buildings) 2022.

23. The application is accompanied by a BASIX certificate for 27 apartment dwellings (Cert No. 1809505M_02 dated 5 March 2026) prepared by issued by Smith and Tzannes Pty Ltd, in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).

24. Embodied emissions are quantified in the BASIX Certificate, such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

Warringah Local Environmental Plan 2011

25. The objectives of the R2 zone cited at [7] are as follows:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah.

26. An amended Geotechnical Report prepared by Crozier Geotechnical Consultants dated 2 March 2026, sets out recommendations to ensure that the proposed excavation can be undertaken appropriately, such as, but not limited to, recommending rock sawing of the hard rock excavation at the perimeter of the site, vibration limits on neighbouring residential dwellings of 5 mm/s and support prior to and during excavation in which case there is expected to be negligible impact to the local hydrogeology, subject to additional investigation to assess bedrock quality and groundwater conditions via cored boreholes undertaken to below the level of excavation.

27. On the basis of the above, I am satisfied that the excavation required to accommodate the development will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, consistent with the provisions of cl 6.2 of WLEP, and subject to those recommendations set out in the Geotechnical Report.

28. Finally, I have also considered the stormwater drainage proposed for the development and prepared by Deboke (Stormwater Plans) that provides for onsite detention in both a formed basin and subsurface OSD tank. On the basis of those plans and other documents cited above, I consider those matters at cl 6.2(3) of the WLEP to be satisfactorily addressed.

29. Relatedly, the site is identified on the relevant Landslide Risk Land Map at cl 6.4 of the WLEP. The Geotechnical Report cited above includes a risk assessment for both property and life in accordance with the Australian Geomechanics Society 2007, “Landslide Risk Assessment and Management”, Australian Geomechanics Journal Vol. 42, No 1, March 2007, and subsurface investigations previously undertaken by Martens that involved the drilling of seven boreholes to investigate subsurface geology. I note the Geotechnical Report recommends further investigation via a minimum of 3 boreholes is required to assess actual groundwater conditions and that the basement be a tanked basement. When the results of testing and recommendations of the Geotechnical Report, the Stormwater Plans at [29] and the terms of the agreed conditions of consent are properly understood, I am satisfied the development has been assessed for the risk associated with landslides in relation to both property and life, and the development will not cause significant detrimental impacts because of stormwater discharge from the development site, and that finally the development will not impact on or affect the existing subsurface flow conditions.

Conclusion

30. 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.

31. 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.

32. The Court notes that the Council has approved:

33. pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant amending the description of development application number DA2025/1263 as follows:

“Demolition works and construction of a residential flat building containing 27 apartments (including 6 infill affordable housing apartments) at Lot A in Deposited Plan 393276 and Lot B in DP393276, being 12-14 Gladys Avenue, Frenchs Forest New South Wales.”; and

2. the development application being amended in accordance with the plans and documents listed below, as filed with the Court on 16 March 2026 and 19 March 2026:

| Approved Plans | | Plan Number | Revision Number | Plan Title | Drawn By | Date of Plan | | DA2-A-000 | E | Title | Smith & Tzannes | 25/02/2026 | | DA2-A-001 | E | Notes | Smith & Tzannes | 25/02/2026 | | DA2-A-002 | E | Building Materials | Smith & Tzannes | 25/02/2026 | | DA2-A-010 | E | Proposed Site Plan | Smith & Tzannes | 25/02/2026 | | DA2-A-011 | E | Demolition Plan | Smith & Tzannes | 25/02/2026 | | DA2-A-012 | E | Excavation & Fill plan | Smith & Tzannes | 25/02/2026 | | DA2-A-100 | E | Roof Plan | Smith & Tzannes | 25/02/2026 | | DA2-A-101 | E | Level 6 | Smith & Tzannes | 25/02/2026 | | DA2-A-102 | E | Level 5 | Smith & Tzannes | 25/02/2026 | | DA2-A-103 | E | Level 4 | Smith & Tzannes | 25/02/2026 | | DA2-A-104 | E | Level 3 | Smith & Tzannes | 25/02/2026 | | DA2-A-105 | E | Level 2 | Smith & Tzannes | 25/02/2026 | | DA2-A-106 | E | Level 1 | Smith & Tzannes | 25/02/2026 | | DA2-A-107 | E | Level 0 | Smith & Tzannes | 25/02/2026 | | DA2-A-200 | E | Elevations - East and South | Smith & Tzannes | 25/02/2026 | | DA2-A-201 | E | Pavillion A – West & North | Smith & Tzannes | 25/02/2026 | | DA2-A-202 | E | Lower Pavillion B&C - Elevations | Smith & Tzannes | 25/02/2026 | | DA2-A-203 | E | Lower Pavillion B&C - Elevations | Smith & Tzannes | 25/02/2026 | | DA2-A-204 | E | Entry Detail Elevation | Smith & Tzannes | 25/02/2026 | | DA2-A-205 | E | Sections | Smith & Tzannes | 25/02/2026 | | DA2-A-206 | E | Sections | Smith & Tzannes | 25/02/2026 | | DA2-A-207 | E | Sections | Smith & Tzannes | 25/02/2026 | | DA2-A-800 | E | Area Calculations | Smith & Tzannes | 25/02/2026 | | DA2-A-801 | E | Gross Floor Area | Smith & Tzannes | 25/02/2026 | | DA2-A-802 | E | Solar Access | Smith & Tzannes | 25/02/2026 | | DA2-A-803 | E | Cross Ventilation | Smith & Tzannes | 25/02/2026 | | DA2-A-804 | E | Storage | Smith & Tzannes | 25/02/2026 | | DA2-A-805 | E | Site Areas | Smith & Tzannes | 25/02/2026 | | DA2-A-806 | E | Privacy & Building Separation Analysis | Smith & Tzannes | 25/02/2026 | | DA2-A-807 | E | Max Height Study | Smith & Tzannes | 25/02/2026 | | DA2-A-808 | E | Height Plane Map | Smith & Tzannes | 25/02/2026 | | DA2-A-850 | E | Shadows – Winter Solstice | Smith & Tzannes | 25/02/2026 | | DA2-A-851 | E | Shadows – Winter Solstice | Smith & Tzannes | 25/02/2026 | | DA2-A-852 | E | Shadows – Winter Solstice | Smith & Tzannes | 25/02/2026 | | DA2-A-853 | E | Shadows – Winter Solstice | Smith & Tzannes | 25/02/2026 | | DA2-A-854 | E | Sun Eye Diagrams – Winter Solstice | Smith & Tzannes | 25/02/2026 | | DA2-A-855 | E | Sun Eye Diagrams – Winter Solstice | Smith & Tzannes | 25/02/2026 | | DA2-A-900 | E | Photomontage | Smith & Tzannes | 25/02/2026 | | Landscape Plans | | 1 of 10 | E | Overall site plan | Paul Scrivener Landscape | 18/02/2025 | | 2 of 10 | E | Level 4 & 2 Plan | Paul Scrivener Landscape | 18/02/2025 | | 3 of 10 | E | Details Plan | Paul Scrivener Landscape | 18/02/2025 | | 4 of 10 | E | Detail Plan | Paul Scrivener Landscape | 18/02/2025 | | 5 of 10 | E | Planting Plan | Paul Scrivener Landscape | 18/02/2025 | | 6 of 10 | E | Level 4 entry/Level 3 Plan | Paul Scrivener Landscape | 18/02/2025 | | 7 of 10 | E | Planting schedule & Notes | Paul Scrivener Landscape | 18/02/2025 | | 8 of 10 | E | East & West Elevation | Paul Scrivener Landscape | 18/02/2025 | | 9 of 10 | E | Central section & North elevation | Paul Scrivener Landscape | 18/02/2025 | | 10 of 10 | E | Site Detail plan | Paul Scrivener Landscape | 18/02/2025 |

| Document Title | Version Number | Prepared By | Date of Document | | BASIX Certificate No. 1809505M_02 | | Smith & Tzannes Pty Ltd | 5 March 2026 | | NatHERS Certificate No. 0009794210 | | ESD Synergy Pty Ltd | 5 March 2026 | | Updated Supplementary Statement of Environmental Effects | | Boston Blyth Fleming | 5 March 2026 | | Updated clause 4.6 variation request – Height | | Boston Blyth Fleming | 25 February 2026 | | Design Verification Statement | Revision C | Smith & Tzannes | 4 March 2026 | | National Construction Code Report | | Design Right Consulting | 4 March 2026 | | Traffic and Parking Assessment | | Terraffic Pty Ltd | 5 March 2026 | | Access Report | | Accessibility Solutions Pty Ltd | 4 March 2026 | | Geotechnical Report | 1 | Crozier Geotechnical Consultants | 2 March 2026 |

Orders

33. The Court orders that:

34. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent that are thrown away as a result of amending the Development Application in the amount of $5,000.00 to be paid within twenty-one (21) days of the Orders.

35. The appeal is upheld.

36. Development Application DA2025/1263 for demolition works and construction of a residential flat building containing 27 apartments (including 6 infill affordable housing apartments) at Lot A in Deposited Plan 393276 and Lot B in DP393276 being 12-14 Gladys Avenue, Frenchs Forest New South Wales is determined by the grant of consent subject to the conditions set out in Annexure ‘A’ to this agreement.

T Horton

Commissioner of the Court

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Annexure A (529 KB, pdf)