Henry Fraser Pty Ltd v Northern Beaches Council

Texts Cited: Pittwater 21 Development Control Plan 2004

Category: Principal judgment

Parties: Henry Fraser Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation: Counsel:
B Salon (Solicitor) (Applicant)
J Eskil (Solicitor) (Respondent)
Solicitors:
ZBA Lawyers (Applicant)
Northern Beaches Council (Solicitor)

File Number(s): 2024/383094

Publication restriction: Nil

JUDGMENT

1. This class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Northern Beaches Council of development application DA2024/0944.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, at which I presided on 26 February 2025.

3. At the conciliation conference, the parties reached in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties, subject to time being granted for certain amendments to the development subject of the development application. The parties continued to work towards amending plans and finalising documents on several occasions which could then be finalised and incorporated into agreed conditions of consent.

4. The Respondent, as the relevant consent authority, has approved under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA2024/0944 in accordance with the following amended plans:

| Amended Statement of Environmental Effects, prepared by SJB (rev 6) | 4 Mar 2025 | | Amended Architectural Drawings (Project 230736, Rev 10), prepared by Buchan: • AMP-0001, Cover Sheet; • AMP-0002, Existing environment; • AMP-0003, Existing Aerial; • AMP-0004, Land Zoning Map; • AMP-0101, Site Plan; • AMP-0111, Shadow Diagrams – Summer Solstice; • AMP-0112, Shadow Diagrams – Winter Solstice; • AMP-2001, Level G; • AMP-2002, Roof Plan; • AMP-2101, Floor Plans; • AMP-4001, Elevations; • AMP-4002, Sections; • AMP-5500, Signage; • AMP-9901, 3D Views-Sheet 01. | 12 Mar 2025 | | Amended Landscape Drawings (Job 108BR/LP/DA), prepared by John Chetham & Associates • LP00, Landscape Site Plan, Rev U; • LP01, Landscape Plan – Outdoor Play and Café Area, Rev U; • LP02, Landscape Section, Rev U; • LP03, Proposed Plant Schedule, Rev U. | 21 Apr 2025 | | Civil Engineering Cut and Fill Drawings (Project 21-000093), prepared by Egis • C0-00, Cover Sheet, Rev F; • C0-01, General Notes and Legend, Rev F; • C0-50, Earthworks Plan, Rev H; • C0-60, Earthworks Sections, Rev H. | 23 Apr 2025 | | Stormwater Management Drawings (Project 21-000093), prepared by Calibre: • Stormwater Management Plan, Dwg 101, Rev 3; • Soil and Water Management Plan, Dwg 102 Rev 3. | 4 Apr 2025 | | Aboriginal Archaeological Advice, by City Plan | 16 May 2025 | | Amended Bushfire Protection Assessment, prepared by Travers Bushfire and Ecology (Ref HEN09BF) | 13 Mar 2025 | | Statement of Bushfire Compliance, prepared by Travers Bushfire and Ecology (Ref HEN09BF) | 26 Mar 2025 | | Biodiversity Development Assessment Report, prepared by Travers Bushfire and Ecology (Ref HEN09ECO) | 19 Mar 2025 | | Vegetation Management Plan, prepared by Travers Bushfire and Ecology (Ref HEN09EC)) | 17 Apr 2025 | | Arboriculture Impact Assessment Report, prepared by Travers Bushfire and Ecology (Ref HEN09AIA) | 12 Mar 2025 | | Addendum Traffic Report, prepared by Ason Group | 10 Jan 2025 and 21 Feb 2025 | | Addendum Traffic Report, prepared by Ason Group | 11 Mar 2025 | | Detailed Site Investigation Report, prepared by Douglas Partners (Proj 85749.05), Rev 0 | 6 Feb 2025 | | Remediation Action Plan, prepared by Douglas Partners (Proj 85749.05), Rev 0 | 5 Feb 2025 | | Acid Sulfate Soil Management Plan, prepared by Douglas Partners (Proj 85749.04), Rev 3 | 6 Feb 2025 | | Remediation Memo, prepared by Douglas Partners (Proj 85749.05), Ref M.001.Rev0 | 3 Mar 2025 | | Aboriginal Due Diligence Assessment, prepared by City Plan, Rev 2 | 10 Feb 2025 | | Water Management Report, prepared by Egis, rev 8 | 5 May 2025 |

5. This agreement between the parties involves the Court upholding the appeal and granting development consent to the development application subject to those agreed conditions of consent.

6. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 28 May 2025. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

7. 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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised in order to allow the Court to make the agreed orders at [27].

Jurisdictional prerequisites

8. The subject site is two allotments legally described as Lot 3 in DP26902 (12 Boondah Road) and Lot 4 in DP 26902 (10 Boondah Road) Warriewood. The site is irregular in shape and is approximately 2.04 hectares. The site has a frontage of 162.5m along both lots on Boondah Road which provide vehicle access to the site. The depth of the site is approximately 81.32m along the northern boundary and 153.62m along the southern boundary.

9. The site is jointly owned, and consent has been provided by both owners:

10. 10 Boondah Road Warriewood (Lot 4 in DP26902) by Henry Fraser Pty Ltd (Applicant).

11. 12 Boondah Road Warriewood (Lot 3 DP26902) by Cassius Investments Pty Ltd.

12. The Development Application was notified publicly between 30 July 2024 and 27 August 2024. Four submissions were received. The Amended Development Application was informally renotified to objectors and no submissions were received.

Pittwater Local Environmental Plan 2014

11. The site is zoned RU2 - Rural Landscape under the Pittwater Local Environmental Plan 2014 (PLEP). The amended proposed development is for demolition works and construction of a new plant nursery and landscape material supplies premises, tree removal, associated earthworks, landscaping, and environmental protection works, and is generally consistent with the definition of ‘plant nursery’ and ‘landscaping material supplies’ in the PLEP dictionary and are permissible in the RU2 - Rural Landscape Zone with consent. In accordance with cl 2.3 of the PLEP I have had regard to the objectives of the zone.

12. The parties agree and I accept that the following applicable provisions under the PLEP are met:

13. Clause 2.7 demolition works are permissible with consent

14. Clause 4.3 Height of Buildings prescribes a maximum permitted height of building limit of 5.5m for the Site which the parties agree the proposed development is compliant.

15. Clause 4.4 maximum floor space ratio - the parties agree that this is not applicable to the site however both accept that the floor space area of 431m2 is acceptable.

16. Clause 5.21 Flood Planning and cl 5.22 Special Flood Considerations – both parties agree that these requirements have been addressed in the Water Management Report, prepared by Egis, rev 8 dated 5 May 2025.

17. Clause 6.1 Warriewood Valley Release Area - the parties agree that the requirements have been met on the basis that the development will not have any significant adverse impact on any of the following:

(a) opportunities for rehabilitation of aquatic and riparian vegetation, habitats and ecosystems within creek line corridors, (b) the water quality and flows within creek line corridors, (c) the stability of the bed, shore, and banks of any watercourse within creek line corridors.

6. Clause 7.1 Acid Sulfate Soils – the site is classed as Class 3 on the PLEP Acid Sulfate Soil Map. An Acid Sulfate Soil Management Plan has been prepared by Douglas Partners (Dated 6 February 2025, Rev 3) and acid sulfate soils are to be managed in accordance with the Conditions of Consent in Annexure A.
7. Clause 7.2 Earthworks is applicable to the site and is outlined in Civil Engineering Cut and Fill Drawings (Project 21-000093), prepared by Egis dated 23 April 2025. Excavated material is to be managed in accordance with the Conditions of Consent in Annexure A.
8. Clause 7.6 Biodiversity – the parties agree that consideration of the biodiversity impacts have been undertaken in the Biodiversity Development Assessment Report, prepared by Travers Bushfire and Ecology (Ref HEN09ECO, date 19 March 2025) and are to be managed in accordance with the Conditions of Consent in Annexure A.
9. Clause 7.10 Essential Services – the parties agree that the supply of water, electricity, disposal and management of sewage, stormwater and vehicle access are available and will be managed in accordance with the Conditions of Consent in Annexure A.

Pittwater 21 Development Control Plan 2004 (PDCP)

13. The parties agree and I accept that the relevant provisions of the PDCP including sections A4.16, B, C2, C6.1 and D16 have been taken into consideration when assessing the application and are supported by the amended material provided by the Applicant.

State Environmental Planning Policy (Resilience and Hazards) 2021

14. Pursuant to Pt 2.2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (R&H SEPP), portions of the site are identified as coastal wetlands and coastal wetlands proximity on the Coastal Wetlands and Littoral Rainforests Area Map. The parties confirm that no development other than environmental protection works will be carried out on the parts of the Site identified as coastal wetlands and as such, agree that the proposed development is not designated development under s 2.7(2) of the R&H SEPP.

15. Pursuant to s 2.7(4) of the R&H SEPP, I am satisfied that the sufficient measures have been, or will be, taken to protect, and where possible enhance, the biophysical, hydrological and ecological integrity of the coastal wetland or littoral rainforest as documented by the following material prepared by the Applicant:

16. Biodiversity Development Assessment Report, prepared by Travers Bushfire and Ecology (Ref HEN09ECO), Dated 19 March 2025

17. Vegetation Management Plan, prepared by Travers Bushfire and Ecology (Ref HEN09EC), dated 17 April 2025

18. Arboriculture Impact Assessment Report, prepared by Travers Bushfire and Ecology (Ref HEN09AIA), Dated 12 March 2025

19. Civil Engineering Cut and Fill Drawings (Project 21-000093), prepared by Egis, Dated 23 April 2025

20. Stormwater Management Drawings (Project 21-000093), prepared by Calibre, Date 4 April 2025.

21. Water Management Report, prepared by Egis, rev 8, Dated 5 May 2025.

22. Pursuant to s 2.8(1) of R&H SEPP, portions of the site that are identified as “proximity area for coastal wetlands”. As outlined in the documents above, and with the Conditions of Consent in Annexure A, I am satisfied that the proposed development will not significantly impact on the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest.

23. Pursuant to s 4.6 of the R&H SEPP, requires the consent authority to consider whether the land is contaminated. The Applicant has undertaken site investigations which confirm the site is contaminated and requires remediation to make the site suitable for the proposed use. The Applicant has prepared the following documents:

24. Detailed Site Investigation Report, prepared by Douglas Partners (Proj 85749.05), Rev 0, Dated 6 February 2025

25. Remediation Action Plan, prepared by Douglas Partners (Proj 85749.05), Rev 0, Dated 5 February 2025

26. Acid Sulfate Soil Management Plan, prepared by Douglas Partners (Proj 85749.04), Rev 3, Dated 6 February 2025

27. Additionally, there are conditions of consent in Annexure A relating to contamination management and adherence the Remediation Action Plan. The parties agree and I accept that requirements of s 4.6 of R&H SEPP have been met.

State Environmental Planning Policy (Industry and Employment) 2021

19. The Amended Development Application proposes plant nursery signage on the northern and southern elevations of the building. Pursuant to s 3.6 of the State Environmental Planning Policy (Industry and Employment) 2021, the parties agree, and I am satisfied that the proposed signage is consistent with the objectives in s 3.1(1)(a) and Sch 5. Additionally, Condition of Consent No. 39 in Annexure A, requires detailed signage plans to be submitted to the Executive Manager of Development Assessment prior to the issue of a construction certificate.

State and Environmental Planning Policy (Sustainable Buildings) 2022

20. Pursuant to Ch 3 of the State and Environmental Planning Policy (Sustainable Buildings) 2022 (SB SEPP), s 3.1(1)(a) would apply as the proposed development is non-residential and the parties advise it has a cost works of $11,637,999.00. However, s 3.1(2)(b)(i) of the SB SEPP provides that Ch 3 of the SB SEPP does not apply to development wholly on land zoned RU2 - Rural Landscape, of which the site is zoned.

Biodiversity Conservation Act 2016

21. Pursuant to s 7.7 of the Biodiversity Conservation Act 2016 (BC Act) requires that if a proposed development is likely to significantly affect threatened species, the development application is to be accompanied by a biodiversity development assessment report (BDAR). The Site is not located in a declared area of outstanding biodiversity value and amendments to the Development Application mean that the proposed development does not exceed the biodiversity offsets scheme threshold. The parties also agree that the proposed development is not likely to significantly affect threatened species or ecological communities, or their habitats. However, given the location of the Site and the proximity to the coastal wetlands, the Applicant has provided a Biodiversity Development Assessment Report, prepared by Travers Bushfire and Ecology (Ref HEN09ECO, dated 19 March 2025) and Vegetation Management Plan (VMP) prepared by Travers Bushfire and Ecology (Ref HEN09EC date 17 April 2025).

22. The parties agree and I accept, that the Conditions in Annexure A, the BDAR and VMP are acceptable, and meet the requirements of the BC Act and the Biodiversity Conservation Regulation 2017.

Water Management Act 2000

23. The Development Application was lodged as Integrated Development pursuant to s 4.8 of the EPA Act, requiring an approval under s 91 of the Water Management Act 2000 (WM Act). The Respondent referred the DA to the Department of Planning and Environment – Water (DPE Water). On 1 August 2024, DPE Water issued its General Terms of Approval. Additionally, Conditions of Consent No. 40 in Annexure A, requires the Applicant to comply with the General Terms of Approval issued by the DPE Water.

Conclusion

24. 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.

25. 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.

26. The Court notes that:

27. The Respondent, as the relevant consent authority, has approved under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA2024/0944 in accordance with the amended plans listed in Annexure A.

28. The Applicant has filed the plans and documents in Annexure A with the Court on 28 May 2025.

Orders

27. The Court orders that:

28. The Appeal is upheld.

29. The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as a result of the amendment to the development application as agreed or assessed.

30. Development Application DA2024/0944 for demolition works and construction of a new plant nursery and landscape material supplies premises, tree removal, associated earthworks, landscaping, and environmental protection works at 10-12 Boondah Road Warriewood NSW is determined by the grant of consent subject to the conditions in Annexure A.

L Coetzee

Acting Commissioner of the Court

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Annexure A.419 KB.pdf