Balito 1 Pty Ltd v Northern Beaches Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited: Department of Planning and Environment, Seniors Housing Design Guide, November 2023

Category: Principal judgment

Parties: Balito 1 Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation: Counsel:
A Knox (Solicitor) (Applicant)
A Gough (Solicitor) (Respondent)
Solicitors:
Pikes & Verekers Lawyers (Applicant)
Storey Gough Lawyers (Respondent)

File Number(s): 2024/420495

Publication restriction: Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against Northern Beaches Council’s deemed refusal of development application DA2024/1219 (the DA). The DA, as amended, seeks consent for a mixed use development including senior living housing (independent living units), shops and basement parking at 142-146 Pitt Road, North Curl Curl (site).

Conciliation and agreement between the parties

2. At the request of the parties, the Court arrange a conciliation conference in relation to the matter under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 1 December 2025 and at which I presided. Prior to the conference, the parties indicated they had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This agreed decision of the parties involved the Court upholding the appeal and granting development consent to the DA under s 4.16 of the EPA Act, subject to agreed conditions.

Pre-requisites to the exercise of the function to grant development consent

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

4. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties' agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [62]-[65]). Ultimately, I find that there are none. But there are certain statutory queries which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties' two jurisdictional notes, each dated 1 December 2025.

Warringah Local Environmental Plan 2011

5. The site is zoned E1 Local Centre, with development for the purposes of seniors housing and retail premises permitted with consent.

6. Clause 4.3 provides that the maximum permissible height applicable to development on the site is 8.5m. This breach of the development standard is considered below, after relevant provisions in relation to State Environmental Planning Policy (Housing) 2021 are introduced.

7. Other provisions requiring jurisdictional findings are outlined below:

8. Clause 5.21 makes provisions in relation to flood planning. The site is identified on Council's Flood Map as being flood prone land. The parties believe the Court can be satisfied that the DA meets the requirements of cl 5.21 by reference to the Flood Impact and Risk Management Report contained at Tab 22 of the Class 1 application and the updated Flooding Compliance Letter prepared by Integrated Group Services Pty Ltd dated 19 September 2025. The parties point me to pages 6-7 of the Supplementary Flood Impact Assessment Report dated 27 May 2025 for details pertaining to the matters requiring findings of satisfaction. I accept the advice of the parties and am satisfied with respect to each of the matters listed at cl 5.21(2).

9. Clause 6.4 applies to development on sloping land and provides that development consent must not be granted unless the consent authority is satisfied that the application for development has been assessed for the risk associated with landslides in relation to both property and life, the development will not cause significant detrimental impacts because of stormwater discharge from the development site, and the development will not impact on or affect the existing subsurface flow conditions. The applicant has provided a Geotechnical Investigation Report prepared by Morrow Geotechnics Pty Ltd dated 19 September 2025, and stormwater plans that are contained at Tab 10 of the Class 1 application, which address these matters. In addition, the applicant has provided an updated stormwater management ground floor plan dated 22 September 2025 and a stormwater compliance letter prepared by Integrated Group Services Pty Ltd dated 19 September 2025 providing further details. On the advice of the parties, I accept the requirements of cl 6.4(3) are satisfied based on the material accompanying the DA.

State Environmental Planning Policy (Housing) 2021

8. The DA is made mindful of the provisions of State Environmental Planning Policy (Housing) 2021 (SEPP Housing). The parties advise that Chapter 3, Part 5 (“housing for seniors and people with a disability”) applies to the site pursuant to SEPP Housing’s s 79, and the site’s E1 Local Centre zoning. Therefore, in accord with s 81, the proposed seniors housing is also permissible on the site with development consent under SEPP Housing.

9. The parties’ advise and I accept that the proposal satisfies the development standards at Div 3 and the site-related requirements of Div 4. Division 5 is concerned with “design requirements”. These provisions require a consent authority to consider the Seniors Housing Design Guide, published by the Department of Planning and Environment in November 2023, and to be satisfied that the design of the seniors housing demonstrates that adequate consideration has been given to the relevant design principles set out in Sch 8 of SEPP Housing. In their jurisdictional note, the parties make reference to the material accompanying the DA which works through the relevant design principles for seniors housing. Council has indicated that it has given consideration to the matters raised at s 97(1) and is satisfied with respect to s 97(2). I accept this advice and am satisfied the design of the seniors housing demonstrates that adequate consideration has been given to the design principles for seniors housing set out in Schedule 8.

Building height contravention

10. As indicated earlier the proposal involves a contravention of cl 4.3 of Warringah Local Environmental Plan 2011 (WLEP) relating to the height of buildings. It is noteworthy that SEPP Housing includes provisions, by way of non-discretionary development standards, identifying standards that, if complied with, prevent the consent authority from requiring something more onerous in regard to the relevant matter. Applicable here is s 108 of SEPP Housing, with the provisions at ss 108(2)(a) and (b) involving building height. In the particulars of this instance, these standards do not provide an overriding of the requirement for the DA to comply with cl 4.3 of WLEP.

11. In turn, the applicant relies on the cl 4.6 of WLEP, which provides that development consent may be granted even though the development would contravene a development standard, such as is the case here in relation to building height as per cl 4.3 of WLEP. This facilitative function of cl 4.6 is subject to certain preconditions which I attend to now.

12. It is cl 4.6(3) of WLEP which establishes the essential precondition to the exercise of the function to grant consent even though the development would contravene a development standard:

(3) Development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant has demonstrated that—

(a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and

(b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

13. In accordance with the EPA Regulation, the DA, as amended, is accompanied by documentation prepared by Minto Planning Services (Minto Planning documentation) setting out the grounds upon which the applicant seeks to demonstrate the requirements of cl 4.6(3) have been met notwithstanding the contravention.

14. Council makes clear that it endorses the application of cl 4.6 in this instance and that the Minto Planning documentation effectively demonstrates that the two tests relating to cll 4.6(3) have been satisfied. As I explain below, I agree with Council that the applicant has demonstrated that the requirements of cll 4.6(3)(a) and (b) have been met. For the reasons outlined below, I agree.

15. The Minto Planning documentation (p 2) nominates the specifics of the height contravention (11.035m excluding servicing equipment) and seeks to demonstrate that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. It does so by reference to the findings of Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The written request uses the first "Wehbe way", seeking to show how, otherwise, the development achieves the objectives of cl 4.3 of WLEP, notwithstanding the contravention.

16. I reproduce the list of objectives of cl 4.3 below:

(a) to ensure that buildings are compatible with the height and scale of surrounding and nearby development,

(b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access,

(c) to minimise any adverse impact of development on the scenic quality of Warringah’s coastal and bush environments,

(d) to manage the visual impact of development when viewed from public places such as parks and reserves, roads and community facilities.

17. In acknowledging the part three-storey nature of the proposal, the Minto Planning documentation points to other nearby sites which have quite similar characteristics (i.e. part three-storey and thus exceeding the height control). It is noted that the third storey, as proposed, is designed and located to minimise the capacity for it to be viewed from the street or nearby properties. This ensures the proposal is compatible with the height and scale of the surrounds and that visual impact is minimised. The Minto Planning documentation also argues the form of the building would not disrupt views, bring about loss of privacy and loss of solar access. Here reference is made to the use of setbacks, internal unit design, privacy screening and landscaping. Minto Planning documentation indicates that, in recognition of its locational setting, the development would not have any adverse impact on the scenic quality of Warringah’s coastal and bush environments. It is further submitted that for the same reasons as indicated above, the visual impact of development when viewed from public places such as parks and reserves, roads and community facilities would be appropriately managed. Acknowledging Council’s findings on this point, I accept that these arguments demonstrate that the objectives of cl 4.3 of WLEP, notwithstanding the contravention of the associated development standard. It follows that compliance with the development standard is unreasonable or unnecessary in the circumstances.

18. The applicant also has to demonstrate that there are sufficient environmental planning grounds to justify the contravention of the development standard, in this instance. One planning ground indicated in the Minto Planning documentation is that the development, as proposed (i.e. including the upper contravening level), provides for the resolution of a local stormwater management problem of some scale. Another is that the overall design is compatible with the site context. In consideration of the above, and noting the Council findings in this respect, I accept that there are sufficient environmental planning grounds to justify the contravention of the development standard.

19. With these findings, the essential precondition to the exercise of the function to grant consent, even though the development would contravene a development standard, as per cl 4.6(3) of WLEP, have been met.

State Environmental Planning Policy (Resilience and Hazards) 2021

20. Chapter 2 Coastal Management applies to the site, with s 2.10 setting out provisions in relation to development on land within the applicable coastal environmental area. An assessment of the proposed development in relation to relevant provisions is set out at pages 13-14 of the Addendum Statement of Environmental Effects prepared by Minto Planning Services Pty Ltd dated 22 September 2025. In accord with the parties’ advice, and having regard to the submitted stormwater drawings and the parties’ proposed conditions 47 and 62, along with the submitted Geotechnical Investigation Report and proposed condition 54, with respect to groundwater; I am satisfied with respect to s 2.10(2).

21. Section 2.11 also applies as the site is within the coastal zone. Similarly, the parties rely on relevant information accompanying the DA to express their opinion that the provisions of s 2.11(2) are satisfied. I accept the parties’ findings in this technical area.

22. Chapter 4 relating to contamination also applies. Section 4.6 requires that a consent authority must not grant consent to any development unless it has considered whether a site is contaminated 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 parties advise that the site has been subject to both phase 1 and phase 2 environmental site investigations and the applicant has prepared a remediation action plan. Proposed conditions of consent bring associated requirements. I accept the advice of the parties that, in accordance with agreed consent conditions, the land will be suitable after required remediation for the proposed use. The requirements of s 4.6 have been satisfied.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I 2021)

23. Chapter 2 Infrastructure applies to the site. Section 2.48 sets out provisions for determination of development applications and applies to the site. Under the provisions, the consent authority must give written notice to the electricity supply authority for the area in which the development is to be carried out (in this case Ausgrid), inviting comments about potential safety risks, and take into consideration any response to the notice that is received within 21 days after the notice is given. The DA was referred to Ausgrid who raised no objection to the proposed development subject to conditions of consent, which have been included as at Annexure A. The section is satisfied.

Other considerations under section 4.15(1) of the Environmental Planning and Assessment Act 1979 (NSW)

24. Warringah Development Control Plan 2011 applies, but jurisdictionally, nothing turns on this policy instrument.

25. The parties advise the proposal was notified in accordance with requirements. Copies of submissions were provided to the Court and I had the opportunity to hear from one objector during a site inspection on 1 December 2025. The parties advise they have taken into consideration the matters raised in the objecting submissions in reaching agreement in these proceedings.

Conclusion

26. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

27. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation

28. The Court notes that:

29. Northern Beaches Council as the relevant consent authority for the purposes of s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) approves the amendment to the Development Application DA2024/1219 to rely on the following:

(a) Clause 4.6 Written Request - Clause 108(c) and (f) SEPP Housing 2021 prepared by Minto Planning Services Pty Ltd dated 30 November 2025; (b) Owners' consent signed by Robert and Emma Rockey dated 19 June 2024; (c) BASIX Certificate no. 1729497M_08 dated 28 November 2025.

Orders

29. The Court orders that:

30. The appeal is upheld.

31. Development Application DA2024/1219 for the demolition of existing structures and construction of a mixed-use development with seniors living housing (independent living units), shops and basement at 142-146 Pitt Road, North Curl Curl, legally known as Lot 28, Lot 29 and Lot 30 in DP 394337 and Lot 262 in DP 1028346 and 148 Pitt Road, North Curl Curl, legally known as Lot 27 DP 13900 is determined by the grant of development consent subject to the conditions at Annexure A.

P Walsh

Commissioner of the Court

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Annexure A (568 KB, pdf)