Monument Two Pty Ltd v Northern Beaches Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), ss 23, 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch 6, Pt 6.2, ss 6.6, 6.7, 6.9, 6.10
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 3.25
Warringah Local Environmental Plan 2011, cll 2.3, 2.7, 4.3, 4.4, 6.2, 6.4

Texts Cited: Child Care Planning Guideline, Department of Planning, Industry and Environment, September 2021

Category: Principal judgment

Parties: Monument Two Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation: Counsel:
E Fleming (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)
Solicitors:
Macpherson Kelley (Applicant)
Marsden Law Group (Respondent)

File Number(s): 2025/73702

Publication restriction: Nil

JUDGMENT

Introduction

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), being an appeal against the deemed refusal of Development Application No. DA2024/1482 (DA) for demolition works and construction of a centre-based childcare facility at 7 Blackbutts Road, Frenchs Forest (Lot 1 DP 501943) (site).

2. The Court arranged a conciliation conference between the parties, pursuant to s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference, which I presided over, was held on 31 July, 2 September and 8 October 2025

Outcome

3. At the conciliation conference, agreement was reached 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 that 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 amended plans that are referred to in Condition 1 of Annexure A and additional information submitted in response to the contentions. 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 further amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg). The plans and documents comprising the amended application were submitted to the Court on 23 October 2025 and are listed under Condition 1 of the conditions of consent at Annexure A. In summary the changes made to the proposal that resulted in the application now being satisfactory to the parties include:

6. Reduction in the number of childcare places from 80 to 76 and removal of 1 x basement car parking space;

7. Changes to the siting of the building including an increase in the Nyorie Place setback to 3.5m, increase in the Level 1 southern setback to 7m and south eastern setback to 2m from 5 Blackbutts Road, and relocation of the basement exit from the corner to adjacent to the main entry on Blackbutts Road;

8. Various internal configuration to comply with childcare requirements;

9. Relocation of the northern staircase to the first floor outdoor play space to reduce its visual impact;

10. Provision of privacy measures and changes to materials and finishes; and

11. Provision of an amended landscape design which includes retention of additional trees in accordance with arborist advice.

12. In addition, further revised information was provided in the form of an updated acoustic report (acoustic works, 11 August 2025), Stage 1 Preliminary and Stage 2 Detailed Site Investigation (Sydney Environmental Group, 13 March 2024), Arboricultural Impact Assessment Report (Urban Arbor, 17 July 2025) and Plan of Management (Minto Planning Services, 17 September 2025).

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 set out below.

Warringah Local Environmental Plan 2011

8. The site is zoned R2 ‘Low Density Residential’ in accordance with the Warringah Local Environmental Plan 2011 (WLEP). The proposed development for a centre-based child care facility is permissible with consent in the zone and the parties advise regard has been had to the zone objectives, as far as relevant, as required by cl 2.3.

9. Demolition of the existing buildings on site is permissible with consent in accordance with cl 2.7.

10. Clause 4.3 height of buildings applies to the site, permitting a maximum height of 8.5m. The amended proposal has a maximum height of 8.38m and therefore complies with this requirement.

11. No maximum floor space ratio (FSR) applies to the site in accordance with cl 4.4. Notwithstanding s 3.25 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) provides that where a local environmental plan does not prescribe a maximum FSR for a centre-based child care facility, development consent must not be granted for such a facility in the R2 Low Density Residential Zone if the FSR for the building exceeds 0.5:1. The amended proposal does not exceed this limit having a maximum FSR of 0.45:1 as shown on the amended plans.

12. Clause 6.2 earthworks also applies to the amended DA. I accept the parties’ agreement that the provisions of cl 6.2 have been considered as demonstrated in the amended stormwater plans (SDS Engineering, 8 August 2025), the Stage 1 Preliminary and Stage 2 Detailed Site Investigation (Sydney Environmental Group, 13 March 2024), the Geotechnical Investigation Report (Sydney Geotech, 9 February 2024), the Arboricultural Impact Assessment Report (Urban Arbor, 17 July 2025), the Operational and Construction Waste Management Plans (Elephants Foot, 13 August 2024 and 21 October 2024) and having regard to the recommended conditions of consent.

13. Clause 6.4 Development on Sloping Land, which applies to the site, provides that consent must not be granted unless the consent authority is satisfied in respect of landslide risk, stormwater discharge and subsurface flows. I am satisfied of these matters on the basis of the parties’ agreement, the proposed plans (including the landscape and stormwater plans), the Geotechnical investigation Report (Sydney Geotech, 9 February 2024) and the proposed conditions of consent.

State Environmental Planning Policy (Transport and Infrastructure) 2021

14. Chapter 3 Educational Establishments and Child Care Facilities of the TI SEPP applies as the proposal is for a centre-based childcare facility. It contains specific provisions for centre based child care and requires consideration of the Child Care Planning Guideline. I am satisfied on the basis of the parties’ agreement, the amended plans and the Statement of Environmental Effects (Minto Planning Services, 16 October 2025) that the proposal complies with the relevant provisions of the TI SEPP and has due regard to the Guidelines.

15. Specifically the Court notes as outlined above that s 3.25 of the TI SEPP provides that where an LEP does not prescribe a maximum FSR for a centre-based child care facility, development consent must not be granted for such a facility in the R2 Low Density Residential Zone if the FSR for the building exceeds 0.5:1. The WLEP does not prescribe a maximum FSR for the subject site. A maximum FSR of 0.5:1 therefore applies in accordance with s 3.25 of the TI SEPP. The amended proposal complies with this requirement having a maximum FSR of 0.45:1 as shown on the amended plans.

State Environmental Planning Policy (Resilience and Hazards) 2021

16. The provisions of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) also apply to the site. A Stage 1 Preliminary and Stage 2 Detailed Site Investigation (Sydney Environmental Group, 13 March 2024) has been prepared which concludes that the site is suitable for the proposed use. Accordingly, the parties agree, and I accept, that the provisions of s 4.6 of the RH SEPP have been satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

17. Consideration has been given to Ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) in respect of vegetation in non-rural areas however it is noted that the proposal seeks consent for tree removal and that therefore the provisions of Ch 2 do not apply.

18. The site is located within the Sydney Harbour regulated catchment for the purposes of the BC SEPP and accordingly Ch 6 Pt 6.2 applies. I am satisfied in respect of the requirements of s 6.6 water quality and quantity, s 6.7 aquatic ecology, s 6.9 recreation and public access and s 6.10 total catchment management (in so far as they are applicable) on the basis of the parties’ agreement, the amended stormwater plans (SDS Engineering, 8 August 2025), the Geotechnical Investigation Report (9 February 2024) and the proposed conditions of consent.

Other matters

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

20. The Respondent notified the original development application between 18 November and 2 December 2024. 104 submissions were received in response to the notification. The parties advise that the amended plans were further informally notified from 23 September and 8 October 2025 and that a further 35 submissions were received. In reaching agreement, the parties have advised that consideration has been given to the concerns raised in the submissions.

Conclusion

21. 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)).

22. 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

23. The Court orders:

24. 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 (NSW), in the agreed sum of $8,000 payable within 28 days of receipt of tax invoice from the Respondent.

25. The appeal is upheld.

26. Development Application No. DA2024/1481, as amended, for the demolition of existing structures, tree removal, and construction of a centre-based child care facility accommodating seventy-six (76) children with associated basement carparking, ancillary signage, landscaping, stormwater and associated site works on land legally described as Lot 1 in DP501943 and known as 7 Blackbutts Road, Frenchs Forest NSW 2086, is determined by the grant of development consent subject to the conditions at Annexure A

H Miller

Acting Commissioner of the Court

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Annexure A (272 KB, pdf)