Henry Fraser Pty Ltd v Northern Beaches Council

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

Representation: Counsel:
B Salon (Solicitor) (Applicant)
S Simington (Solicitor) (Respondent)
Solicitors:
The Law Salon (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2025/330426

Publication restriction: Nil

Judgment

COMMISSIONER:

Introduction

1. This matter concerns an appeal made directly to the Land and Environment Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicant seeking to modify DA2024/0944 (Original Consent). The Original Consent was granted by the Land and Environment Court on 11 June 2025 (see Henry Fraser Pty Ltd v Northern Beaches Council [2025] NSWLEC 1411) and approved demolition works and construction of a plant nursery and landscape material supplies premises, tree removal, associated earthworks, landscaping and environment protection works, on land identified as Lots 3 and 4 in Deposited Plan 26902, known as 10 and 12 Boondah Road, Warriewood (Subject Land).

2. The Original Consent imposed various conditions of consent including, relevantly, Condition 6 which required the payment of a development contribution amount of $4,455,920. The modification application the subject of this appeal, (Mod2025/0488) made under s 4.55(1A) of the EPA Act, seeks to modify Condition 6 of the Original Consent to reduce the development contribution amount to $93,958 (Modification Application).

3. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

The Modification Application

4. On 28 August 2025, the Modification Application was lodged with the Land and Environment Court under s 4.55(8) of the EPA Act.

5. In accordance with the respondent’s Community Participation Plan, notification of the Modification Application was not required as the modifications sought are of no environmental impact.

6. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was terminated on 25 February 2026 and the matter listed for hearing on 18 June 2026.

7. Prior to the hearing, the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is for the grant of the Modification Application in an amended form (Amended Modification Application). The amendments primarily include amending Condition 6 of the Original Consent to require the payment of $609,542.36 in developer contributions.

8. The parties provided a signed s 34 agreement on 11 June 2026 and requested that the matter be listed for a further s 34 conciliation conference. The Court granted this request, and the matter was listed for a s 34 conciliation conference on 18 June 2026. I presided over this conciliation conference. The parties provided an agreed jurisdictional statement on 16 June 2026.

9. 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. 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.

Jurisdictional considerations

10. As the presiding Commissioner, I am satisfied that the decision is one 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 form this state of satisfaction for the reasons that follow.

Owners consent

11. The registered proprietors of the Subject Land provided consent to the lodgement of the Modification Application (see Class 1 Application, tabs 1 and 5).

The EPA Act

12. As the Original Consent was granted by the Land and Environment Court, the Modification Application was lodged directly with the Court pursuant to s 4.55(8) of the EPA Act.

13. Section 4.55(1A) of the EPA Act relevantly provides that a consent authority may modify development consent if it is satisfied of, and has considered, specified matters. Each relevant matter set out in s 4.55(1A) is addressed below.

14. For the purposes of s 4.55(1A)(a) of the EPA Act, the parties agree, and I accept, that the Amended Modification Application only proposes to amend a condition relating to the quantum of development contributions and therefore involves no or minimal environmental impact.

15. For the purposes of s 4.55(1A)(b), I am satisfied that the consent as modified is the same or substantially the same development as the development for which consent was originally granted for the following reasons:

16. the modification does not propose any changes to the approved built form or any physical aspect of the approved development; and

17. the Amended Modification Application proposes only to amend a condition relating to the quantum of development contributions and therefore does not change the qualitative or quantitative nature of the approved development.

18. In relation to s 4.55(1A)(c) of the EPA Act, the Court as the consent authority must be satisfied that the development to which the consent as modified relates has been relevantly notified in accordance with a development control plan that requires the notification or advertising of applications for modification of a development consent. As set out at [5] above, the Modification Application was not required to be notified.

19. Section 4.55(1A)(d) of the EPA Act is therefore not relevant in this matter.

20. In respect of s 4.55(3) of the EPA Act, in determining the Amended Modification Application, I have taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the Amended Modification Application, and the reasons given by the consent authority (in this case the Court – see Henry Fraser Pty Ltd v Northern Beaches Council [2025] NSWLEC 1411) for the grant of the Original Consent.

21. In respect of relevant matters under s 4.15(1) of the EPA Act, the parties agree, and I accept, that to the extent any matters are relevant given the very limited nature of the proposal, they have been appropriately considered (see Statement of Support for Section 4.55(8) Modification Application prepared by SJB Planning dated 26 August 2025 pp 15-16).

Conclusion

20. 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.

21. The Court notes that the respondent, as the relevant consent authority, has approved under s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW), the amendment to Modification Application Mod2025/0488 to modify Condition 6 of the consent to DA2024/0944 for the land at 10 and 12 Boondah Road, Warriewood, such that it requires a total of $609,542.36 to be paid in developer contributions on the development made up as follows:

| Contribution Category | Amount | | Traffic and transport | $479,490.24 | | Multifunctional Creek line corridor (rehabilitation works) | $0.00 | | Multifunctional Creek line corridor (land acquisition) | $60,131.17 | | Pedestrian and cyclist network | $44,940.14 | | Administration and plan management | $24,980.81 | | Total contribution | $609,542.36 |

Orders

22. The Court orders that:

23. The appeal is upheld.

24. Development Consent DA2024/0944 granted by the Land and Environment Court on 11 June 2025 by Henry Fraser Pty Ltd v Northern Beaches Council [2025] NSWLEC 1411 is modified in the terms in Annexure A.

25. Development Consent DA2024/0944 granted by the Land and Environment Court on 11 June 2025 by Henry Fraser Pty Ltd v Northern Beaches Council [2025] NSWLEC 1411 as modified by the Court is at Annexure B.

N Targett

Commissioner of the Court

Annexure A (148 KB, pdf)

Annexure B (551 KB, pdf)

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