Mainbury Pty Ltd v Northern Beaches Council

Category: Principal judgment

Parties: Mainbury Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation: Counsel:
J Reid (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Macquarie Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2025/60286

Publication restriction: Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Northern Beaches Council, of Development Application DA2024/1370. This application seeks consent for the demolition of existing structures and the removal of vegetation, and the construction of a new dwelling, studio and swimming pool, and landscaping works at 42 and 42A Cabarita Road, Avalon Beach, Lot 1 and 2 of DP 1227452.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

3. The Court arranged a conciliation conference and hearing under s34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 4 August 2025.

4. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings, which involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Council agreed to the applicant amending the development application to adequately address the Council’s contentions.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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 that must be satisfied before this function can be exercised, which the parties identified and explained, and from this I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the owner of the land.

8. The application was adequately notified in accordance with the Northern Beaches Community Participation Plan from 4 November to 18 November 2024. One submission was received, and the same residents made oral submissions via a representative at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions.

9. Part of the site is mapped on the Biodiversity Values Map, however no clearing of native vegetation is proposed on that land. Pursuant to the requirements of s 7.3 of the Biodiversity and Conservation Act 2016 (BC Act), the applicant has assessed whether the development is likely to significantly affect threatened species or ecological communities or their habitats. As demonstrated by Fraser Ecological in a Biodiversity Assessment Report dated 4 October 2024, the development is unlikely to result in any of these impacts, and accordingly, a Biodiversity Development Assessment Report pursuant to s 7.7 of the BC Act is not required.

10. The site is mapped as ‘Coastal Use Area’ and ‘Coastal Environment Area’ on the relevant maps pursuant to Ch 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH). From the parties’ submissions and the following documents, I accept that the matters listed in ss 2.10(1) and 2.11(1)(a) and subs (c) have been considered, and that the proposed development meets the requirements of ss 2.10(2) and 2.11(1)(b):

11. Biodiversity Assessment Report;

12. Statement of Environmental Effects by Ethos Urban dated 18 October 2024 (SEE);

13. Stormwater plans by Deboke Engineering Consultants dated 18 July 2025;

14. Geotechnical Landslide Risk Assessment by EI Australia dated 16 June 2025 (Geotechnical Report); and

15. Coastal Engineering Risk Assessment by Stantec dated 3 February 2025.

16. Based on the information contained in the above documents, the agreed conditions of consent that form Annexure A, and the parties’ submission I further accept that the proposed development is not likely to cause increased risk of coastal hazards on the site or any other land, pursuant to s 2.12 of the SEPP RH.

17. Section 4.6 of the SEPP RH requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. From the parties’ submission and the Statement of Environmental Effects, I accept that the subject site has historically been used for residential purposes and there is no record of any contamination, or contaminating activity on site. Accordingly I accept that, in terms of contamination, the site is suitable for the intended, continued residential use.

18. The development is located within 5 m of an exposed overhead power line, and therefore s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 applies. Pursuant to s 2.48, the application was referred to Ausgrid, and their response has been incorporated into the agreed conditions of consent.

19. A BASIX certificate has been provided that relates to the development as amended, pursuant to the requirements of State Environmental Planning Policy (Sustainable Buildings) 2022. This certificate identifies and quantifies the embodied emissions attributable to the development as required by s 2.1(5).

20. The subject site is zoned C4 Environmental Living under the Pittwater Local Environmental Plan 2014 (PLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

21. Pursuant to PLEP cl 4.3, the proposed development complies with the maximum building height of 8.5m.

22. Pursuant to PLEP cl 7.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, and is adjacent to an area identified as Class 1. Accordingly, an Acid Sulfate Soils Management Plan by Aargus dated 1 August 2024 accompanies the development application, meeting the requirements of this clause.

23. From the parties’ submission, the Joint Expert Report of Planning Experts and the amended application, I accept that the earthworks-related matters listed in PLEP cl 7.2(3) have been considered and the proposed earthworks are acceptable.

24. The site is mapped as ‘Biodiversity’ on the relevant map pursuant to PLEP cl 7.6. From the parties’ submission and the Biodiversity Assessment Report, I accept that the matters listed in PLEP cl 7.6(3) have been considered, and the proposed development meets the requirements of cl 7.6(4).

25. The site is also mapped as ‘Geotechnical Hazard H1’ on the relevant map pursuant to PLEP cl 7.7. I accept that the Geotechnical risks listed in cl 7.7(3) have been considered in the Geotechnical Landslide Risk Assessment and the further letter form EI Australia to the applicant dated 17 June 2025, and that the proposed development meets the requirements of cl 7.7(4), subject to the agreed conditions of consent.

26. PLEP cl 7.8 limits development on the foreshore area, including limiting the proposed retaining walls. Accordingly, a request to vary this development standard has been prepared pursuant to PLEP cl 4.6. From this document, prepared by Andrew Martin Planning dated 1 August 2025, I accept that compliance with the standard is unreasonable and unnecessary because the objectives of the standard and the zone are achieved notwithstanding the variation, noting that the retaining walls will not impact on natural foreshore processes or affect the significance an amenity of the area. The proposed walls largely replace existing walls, and are of a similar height and location. For the reasons set out in the written request, I accept that sufficient environmental planning grounds have been established to justify the variation, and that subsequently the proposed variation is acceptable pursuant to PLEP cl 4.6.

27. The parties submit, and I accept that all essential services listed in PLEP cl 7.10 are available, or adequate arrangements have been made to make them available when required in the development as amended.

Conclusion

23. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notes

24. The Court notes:

25. Northern Beaches Council as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the applicant amending Development Application No. DA24/1370 made on 25 October 2024 to rely on the amended documents and plans specified below:

| Amended Architectural Plans | | Drawing | Description | Revision | Date | Prepared by | | 0660-DA100 | Title Page | 12 | 29 July 2025 | PopovBass | | 0660-DA101 | Site Analysis Plan | 12 | 29 July 2025 | PopovBass | | 0660-DA102 | Site Plan | 12 | 29 July 2025 | PopovBass | | 0660-DA103 | Roof Plan | 12 | 29 July 2025 | PopovBass | | 0660-DA104 | Level 01 Plan | 12 | 29 July 2025 | PopovBass | | 0660-DA105 | Ground Floor Plan | 12 | 29 July 2025 | PopovBass | | 0660-DA106 | Lower Ground Floor Plan | 12 | 29 July 2025 | PopovBass | | 0660-DA107 | Garden Floor Plan | 12 | 29 July 2025 | PopovBass | | 0660-DA108 | Lower Garden Floor Plan | 12 | 29 July 2025 | PopovBass | | 0660-DA109 | North Elevation | 12 | 29 July 2025 | PopovBass | | 0660-DA110 | South Elevation | 12 | 29 July 2025 | PopovBass | | 0660-DA111 | East Elevation | 12 | 29 July 2025 | PopovBass | | 0660-DA112 | West Elevation | 12 | 29 July 2025 | PopovBass | | 0660-DA113 | Section AA | 12 | 29 July 2025 | PopovBass | | 0660-DA114 | Section BB | 12 | 29 July 2025 | PopovBass | | 0660-DA115 | Height Plane Section Diagrams | 12 | 29 July 2025 | PopovBass | | 0660-DA116 | Height Plane 3D Diagrams | 12 | 29 July 2025 | PopovBass | | 0660-DA117 | Landscape Diagrams | 12 | 29 July 2025 | PopovBass | | 0660-DA118 | Excavation Plan | 12 | 29 July 2025 | PopovBass | | 0660-DA119 | Shadow Diagram | 12 | 29 July 2025 | PopovBass | | 0660-DA120 | Shadow Diagram | 12 | 29 July 2025 | PopovBass | | 0660-DA121 | Shadow Diagram | 12 | 29 July 2025 | PopovBass | | 0660-DA122 | Sun Eye Views | 12 | 29 July 2025 | PopovBass | | 0660-DA123 | Material and Finishes Schedule | 12 | 29 July 2025 | PopovBass | | 0660-DA124 | Pool Details | 12 | 29 July 2025 | PopovBass | | 0660-DA125 | Window Schedule | 12 | 29 July 2025 | PopovBass | | 0660-DA127 | Excavation at Each Level Diagrams | 12 | 29 July 2025 | PopovBass | | 0660-DA128 | Section EE | 12 | 29 July 2025 | PopovBass | | 0660-DA129 | Section FF | 12 | 29 July 2025 | PopovBass | | 0660-DA130 | Demolition Plan | 12 | 29 July 2025 | PopovBass | | - | Schedule of Changes | 10 | 29 July 2025 | PopovBass | | Amended Landscape Plan | | Drawing | Description | Revision | Date | Prepared by | | C001 | Cover Sheet | E | 30 July 2025 | Bates Landscape | | C101 | Upper Landscape Plan | E | 30 July 2025 | Bates Landscape | | C102 | Intermediate Landscape Plan | E | 30 July 2025 | Bates Landscape | | C103 | Lower Landscape Plan | E | 30 July 2025 | Bates Landscape | | C901 | Bin Store Planting Plan | E | 30 July 2025 | Bates Landscape | | C902 | Studio Planting Plan | E | 30 July 2025 | Bates Landscape | | C903 | Front Entry Planting Plan | E | 30 July 2025 | Bates Landscape | | C904 | Courtyard Planting Plan | E | 30 July 2025 | Bates Landscape | | C905 | Waterfront Planting Plan | E | 30 July 2025 | Bates Landscape | | C906 | Trees Plan | E | 30 July 2025 | Bates Landscapes | | Amended Stormwater Plans | | Drawing | Description | Revision | Date | Prepared by | | S101 | Specifications Sheet | 1 | 18 July 2025 | Deboke Civil | | S200 | Lower Garden Floor Plan | 1 | 18 July 2025 | Deboke Civil | | S201 | Garden Floor Plan | 1 | 18 July 2025 | Deboke Civil | | S202 | Lower Ground Plan | 1 | 18 July 2025 | Deboke Civil | | S203 | Ground Floor Plan | 1 | 18 July 2025 | Deboke Civil | | S204 | Level 01 Floor Plan | 1 | 18 July 2025 | Deboke Civil | | S205 | Street Level and Roof Plan | 1 | 18 July 2025 | Deboke Civil | | S300 | Details Sheet 1 of 2 | 1 | 18 July 2025 | Deboke Civil | | S301 | Details Sheet 2 of 2 | 1 | 18 July 2025 | Deboke Civil | | S400 | Erosion and Sediment Control Plan | 1 | 18 July 2025 | Deboke Civil | | Amended Reports | | Reference | Report Name | Revision | Date | Prepared by | | 304501743 | Coastal Engineering Risk Assessment Report | - | 3 February 2025 | Stantec | | 24169_VIS1 | Visual Impact Study | - | 5 March 2025 | CMS Surveyors | | 25.045 | Construction Traffic & Pedestrian Management Plan | 3 | 3 June 2025 | Traffix | | E26727.G14 | Geotechnical Landslide Risk Assessment | 1 | 16 June 2025 | EI Australia | | - | Landslide Risk Assessment | - | 17 June 2025 | EI Australia | | 1766699S_02 | BASIX Certificate | - | 30 July 2025 | Frys Energy Wise | | - | BASIX & Thermal Commitments | - | 30 July 2025 | Frys Energy Wise | | | Clause 4.6 request to vary development standard in clause 7.8 | | 1 August 2025 | Andrew Martin, Andrew Martin Planning Pty Ltd |

Orders

25. The Court orders:

26. The appeal is upheld.

27. Development Consent is granted to DA2024/1370 for demolition works and the construction of a new dwelling including studio, landscaping works and swimming pool at 42 and 42A Cabarita Road Avalon Beach NSW 2107, subject to conditions set out in Annexure A.

E Washington

Commissioner of the Court

Annexure A (402 KB, pdf)

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