BMN Properties Pty Ltd v Northern Beaches Council

Category: Principal judgment

Parties: BMN Properties Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation: Counsel:
J McKelvey (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2024/399512

Publication restriction: Nil

JUDGMENT

Introduction

1. COMMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2024/0097 for the subdivision of one (1) existing lot into two (2) Torrens Title lots including the demolition of existing structures, creation of easements, construction of an internal driveway and installation of services on land known as 192 Barrenjoey Road, Newport (Lot 1 in Deposited Plan 1210322) by Northern Beaches Council.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 197**9 (LEC Act). The conciliation conference, which I presided over, was held on 29 and 30 April 2025.

Outcome

3. At the conciliation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the joint reports and the documents that are referred to in Condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. The Council as the consent authority consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). The amended application comprising an amended subdivision plan and additional information was submitted to the Court on 30 April 2025 and is listed at Condition 1 of Annexure A. Changes were made to the proposal which resolved the contentions identified by the respondent including the provision of additional information in relation to:

6. the post development driveway and drainage plan

7. the proposed vehicle crossing

8. the proposed 1.5m drainage easement on the proposed lot 1

9. the proposed grated drain with level spreader on the proposed lot 2

10. view analysis, and

the provision of an amended subdivision layout, and clause 4.6 variation request.

6. Further, changes were made to the proposed Lot 2 building envelope siting to reduce view impacts to the adjacent neighbour to the north.

Jurisdictional matters

7. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons outlined below.

State Environmental Planning Policy (Transport and Infrastructure) 2021

8. Section 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) requires that written notice be given to the electricity supply authority for development that may affect electricity infrastructure. Ausgrid was notified of the proposed subdivision and advised in writing on 16 February 2024 that the proposal was acceptable subject to compliance with the relevant Ausgrid Network Standards and SafeWork NSW Codes of Practice.

9. The site is located on a classified road (Barrenjoey Road) and therefore s 2.119 of the TI SEPP applies. Prior to the granting of consent s 2.119(2) requires that the consent authority be satisfied of various matters in respect of access to and the safe and efficient operation of the classified road and noise and vibration impacts from the classified road. On the basis of the Traffic Impact Assessment (JMT Consulting, 7 September 2023) I am satisfied of the various matters.

State Environmental Planning Policy (Resilience and Hazards) 2021

10. The site is identified as being within the Coastal Use Area under the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) therefore s 2.11 applies. The provision requires that the consent authority be satisfied of various matters in particular in respect of the visual amenity and scenic qualities of the coast, including coastal headlands. I am satisfied of the various matters on the basis of the Geotechnical Report (JK Geotechnics, 7 December 2023), the Coastal Report (Horton Coastal Engineering, 28 September 2023), the Statement of Environmental Effects (Northern Beaches Planning, January 2024), the View Analysis (8 December 2024) and the amended plans and condition 35 which requires that any future dwellings are setback from the eastern boundary to limit visual impacts.

11. Consideration has also been given as to whether the subject site is contaminated as required by s 4.6 of the RH SEPP. The parties agree that the site has a long history of residential use and therefore contamination is considered unlikely. No further investigation in accordance with the SEPP is therefore required.

Pittwater Local Environmental Plan 2014

12. The development is for the purposes of subdivision for residential development, which is permissible in the C4 Environmental Living zone in which the site is predominantly located pursuant to Pittwater Local Environmental Plan 2014 (PLEP). A small part of the site is within the C2 Environmental Conservation zone where subdivision for residential development is also permissible in this zone.

13. The development has regard to the objectives of the C4 Environmental Living zone as required by cl 2.3 of PLEP including notably “to provide for low-impact residential development in areas with special ecological, scientific or aesthetic values”, “to ensure that residential development does not have an adverse effect on those values”, “to provide for residential development of a low density and scale integrated with the landform and landscape” and “to encourage development that retains and enhances riparian and foreshore vegetation and wildlife corridors”.

14. In accordance with cl 2.6 of PLEP the proposed subdivision is permissible with development consent.

15. As required by cl 2.7 of PLEP consent is sought as part of the subject application for the proposed demolition of existing structures on site.

16. Under cl 4.1 of PLEP in accordance with the Lot Size Map a minimum subdivision lot size of 700m2 applies to the subject land. The subject site has an area of 1766.0m2 with the proposed allotments having an area of Lot 1 - 630m2 and Lot 2 – 1,136m2 (986m2 excluding access handle). A variation request (Northern Beaches Planning, 30 April 2025) in accordance with cl 4.6 of PLEP has been submitted in respect of Lot 1 seeking to vary the minimum lot size development standard.

17. I am satisfied that consent should be granted notwithstanding the contravention of the minimum subdivision lot size standard on part of the site. The development standard establishes a minimum lot size of 700m2 pursuant to cl 4.1. Proposed Lot 1 has an area of 630m2 which represents a contravention of 70m2 below the numerical standard (10% variation) In this regard it is noted that a maximum of 10% variation is permitted in the subject zone pursuant to cl 4.6(6). The contravention arises as the parties have agreed to reduce the size of Lot 1 and increase the size of Lot 2 to move the potential future dwelling on that lot further away from the coast and more in line with adjacent dwellings. View impacts to neighbouring properties, particularly the dwelling to the north, will also be improved. Having regard to these and the other circumstances of the case I am satisfied that:

18. The written request, dated 30 April 2025 prepared by Northern Beaches Planning, lodged pursuant to cl 4.6 of the PLEP adequately establishes sufficient environmental planning grounds that justify the breach in the minimum subdivision lot size development standard.

19. The written request demonstrates that compliance with the standard is unreasonable and unnecessary in the circumstances of the case given that the proposal achieves the objectives of the standard notwithstanding the non-compliance and that it will not result in any adverse impacts.

20. Based on the content of the written request, the proposal is in the public interest because it is consistent with the objectives of the zone and of the development standard.

21. Part of the subject site is identified as ‘Regional Open Space’ on the Land Reservation Acquisition Map. The provisions of cl 5.1 of PLEP are not applicable to the subject application as no works are proposed in the part of the site so designated.

22. The site is mapped as being affected by Class 5 Acid Sulfate Soils but is not within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5 metres AHD. Accordingly, no further assessment is required in accordance with cl 7.1 of PLEP.

23. I am satisfied on the basis of the parties’ agreement, the Geotechnical Report (JK Geotechnics, 7 December 2023), the Civil Engineering Plans (Craig & Rhodes, 14 April 2025) and the recommended conditions of consent that consideration has been given to the matters required to be considered prior to the granting of development consent to earthworks under cl 7.2(3) of PLEP.

24. Clause 7.5 applies to the proposed development and requires the consent authority to be satisfied of the specified matters in relation to coastal risk. Based on the Geotechnical Report (JK Geotechnics, 7 December 2023) and the Coastal Engineering Report (Horton Coastal Engineering, 28 September 2023) I am satisfied of the relevant matters.

25. Part of the site is identified on the PLEP biodiversity map to which cl 7.6 applies. The provision requires satisfaction that the development will avoid, minimise or mitigate any adverse impact on the flora and fauna on the land. Based on the Flora and Fauna Assessment (Kingfisher Urban Ecology and Wetlands, September 2023) and given that no works are proposed in the affected area, I am satisfied of the relevant matters.

26. The site is also identified as within Area H on the PLEP Geotechnical Hazards Map therefore cl 7.7 applies and requires satisfaction of matters set out at cl.7.7(3). On the basis of the Geotechnical Report (JK Geotechnics, 7 December 2023 and the mitigation measures contained therein), Civil Engineering Plans (Craig & Rhodes, 14 April 2025) and condition 17 I am satisfied of the relevant matters.

27. The foreshore building line (FBL) applies to the site in accordance with PLEP. Clause 7.8 limits development within the area affected by foreshore building line. The proposed development does not include any development within the area affected by the FBL as shown on the proposed subdivision plan 1022-22G L01[02] – PLAN (Craig and Rhodes, 29 April 2025).

28. Clause 7.10 requires that the consent authority be satisfied that essential services are available prior to the granting of development consent. Based on the existing use of the site and the proposed services plans I am satisfied that essential services are available to the proposed development.

Other Matters

26. The development application is made with the written consent of the owners of the site in accordance with s 23 of the EPA Reg.

27. The Respondent notified the original development application between 21 February and 6 March 2024. Two submissions were received. Two oral submissions were also heard at the commencement of the conciliation on behalf of the adjoining neighbours. In reaching agreement, the parties have advised that consideration has been given to the concerns raised in the submissions. I note that the proposal has also been amended to reduce view impacts which were the primary issue raised by the neighbours.

Conclusion

28. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

29. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

30. The orders of the Court are:

31. The appeal is upheld.

32. Development Application number 2024/0097, as amended, for the subdivision of one (1) existing lot into two (2) Torrens Title lots including the demolition of existing structures, creation of easements, construction of internal driveway and installation of services on land known as 192 Barrenjoey Road, Newport (Lot 1 in Deposited Plan 1210322) is determined by the grant of consent, subject to the conditions contained in Annexure A.

H Miller

Acting Commissioner of the Court

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Annexure A (289 KB, pdf)