McGhee v Northern Beaches Council

Representation: Counsel:
T McGhee (Self-represented) (Applicants)
C Gough (Solicitor) (Respondent)
Solicitors:
Nil (Applicant)
Storey and Gough (Respondent)

File Number(s): 2024/305139

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal direct to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 NSW (EPA Act) for approval to modify development consent No DA2021/1734 (approved development) granted by the Court on 27 July 2023 in respect of land at 21 Headland Road, North Curl Curl, NSW 2099, identified as Lot 107 DP 6143 (the Site).

2. The approved development is for “demolition of existing dwelling and construction of a dwelling house and associated landscaping works at 21 Headland Road, Curl Curl*”* granted by the Court*:* McGhee v Northern Beaches Council [2023] NSWLEC 1405.

3. The applicants are appealing the following condition of consent imposed by Northern Beaches Council namely to amend Condition 13A which was approved by the Court as follows:

“The following amendments are to be made to the approved plans:

The ceiling height of the first floor shall not exceed RL 55.460;

The overall building height shall not exceed RL 56.618.”

4. The modification application No MOD2024/0082 proposes the following changes to the approved development:

5. Mirror reversing the building on the land;

6. Amend side setbacks of the first floor;

7. Increasing the roof ridge height;

8. Increasing the ceiling height.

9. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on-Site.

10. At the Conciliation Conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council’s contentions. Council accordingly approved the amendment to the applicant’s modification application pursuant to s 113(1) of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the class 1 appeal and amend the approved development consent to carry out the works listed above at [4] of the judgment.

11. Under s 34(3) of the LEC Act, I must dispose of the class 1 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.

12. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to grant the modification to the development consent No DA2021/1734.

13. There are jurisdictional pre-requisites which require my satisfaction before the power to grant consent under s 4.55(2) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in an agreed Jurisdictional Statement (“the Statement”).

Satisfaction as to Jurisdiction

10. Taking into account the parties advice in the Statement, I am satisfied in regard to the following jurisdictional matters.

Section 4.55 – Environmental Planning and Assessment Act 1979

11. The Modification Application and the Amended Modification Application were made pursuant to s 4.56 of the EPA Act. In this regard, the parties agreed that:

12. The development to which the Consent as modified relates is substantially the same development as the development for which the Consent was originally granted;

13. The Modification Application was appropriately notified in accordance with the regulations and relevant development control plan;

14. Submissions received in response to the notification of the Modification Application were considered (see below).

15. Pursuant to s 4.55(3) of the EPA Act, the Council considered the amended Modification Application against:

16. Such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the proposal, as amended;

17. The reasons given by the consent authority, being the Court, for the grant of the Consent.

18. The parties advise and the Court accepts that:

“Quantitatively the modification increases the floor to ceiling height by 100 mm and the building height by 102mm. Externally the proposed modification would see a slight increase in the height of the building, a decrease to the side setback on the eastern side and an increase in the side setback on the western side.

Qualitatively, the approved development will not change in a material sense, with the development remaining a small-scale dwelling possessing the same essential characteristics.”

Warringah LEP 2011 (WLEP)

14. The subject property is zoned R2 Low Density Residential pursuant to the WLEP and the proposed works are permissible with consent.

15. The Court’s power to modify a development consent is derived from s 4.56 of the EPA Act, which is a complete source of power: SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65 at [31]. Further, the parties advise that development standards contained within WLEP are not jurisdictional barriers to the grant of consent to the modification application.

16. Notwithstanding, the parties advise and the Court accepts that the proposed development is compliant with the height standard of 8.5 metres, having a building height of 8.02 metres.

Other State and Local Environmental Planning Instruments

17. Statutory planning controls applicable to the Site and the proposed development were considered in the previous assessment undertaken for the grant of consent. The modification proposed by this application does not raise any new jurisdictional issues which would alter previous conclusions by the parties who were before the Court at the s 34 Conference such that I am required to re-consider each of the relevant Environmental Planning Instruments (EPIs) and planning controls. I refer to the analysis undertaken in the Statement and accept the agreed position of the parties.

Public participation

18. The modification application was notified between 8 March 2024 and 22 March 2024. Two submissions were received. Both persons who made submissions addressed the s 34 Conference on Site. The Court, parties and their consultants viewed the subject Site from inside the objectors dwelling directly opposite the road from the applicant’s property. The owners of that dwelling had engaged a town planner who also addressed the Court.

19. I am satisfied that the objectors reasonable concerns were considered by the parties, and the objectors were accorded procedural fairness.

20. The submissions received in response to the notification of the Modification Application did not raise any jurisdictional issue that would prevent the Court granting consent to the application.

Conclusion

21. Based on the evidence before me, my observations on Site and oral submissions made to me on Site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, the decision is one 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. 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.

Notations

22. The Court notes that:

The Northern Beaches Council as the relevant consent authority has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the modification application MOD2024/0082 the subject of these proceedings as shown in the following amended plans (the amended DA):

Architectural Plans by Accurate Design & Drafting dated 6 March 2025

| Plan 20189-27 Sheet 4 | Upper Floor Plan | Revision ZB | | Plan 20189-27 Sheet 5 | Front & Rear Elevations | Revision ZB | | Plan 20189-27 Sheet 6 | Side Elevations | Revision ZB | | Plan 20189-27 Sheet 7 | Sections & Details | Revision ZB |

Orders

23. The Court orders that:

24. The appeal is upheld;

25. Modification application No MOD2024/0082 is approved;

26. Development consent No DA2021/1734 is modified in the terms set out in Annexure A;

27. Development consent No DA2021/1734, as modified by the Court, is subject to the consolidated modified conditions set out in Annexure B.

L Byrne

Acting Commissioner of the Court

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Annexure A (151 KB, pdf)

Annexure B (248 KB, pdf)