//
[2025] NSWLEC 1341
General information, not legal advice.
Land and Environment Court (NSW)
2025-05-14
Byrne AC
Original judgment source is linked above.
Zoe will write a short plain-English summary of this judgment and email it to you for free: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Oldfield v Northern Beaches Council [2025] NSWLEC 1341
Hearing dates: Conciliation Conference 20 August, 17 September 2024, Agreement filed 13 February 2025
Date of orders: 14 May 2025
Decision date: 14 May 2025
Jurisdiction: Class 1
Before: Byrne AC
Decision: The Court orders that:
(1) The appeal is upheld;
(2) Development consent is granted to Development Application No. DA2022/1530 for demolition existing structures and the construction of 35 self-contained dwellings for older people and people with a disability, basement parking and landscaping on land at 171 Forest Way, Belrose NSW 2085, being Lot 9 in DP 737255, subject to conditions in Annexure A.
(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent’s costs thrown away in the agreed sum of ($18,000) within 30 days of these orders.
Catchwords: DEVELOPMENT APPEAL – seniors living – conciliation conference – agreement between the parties - orders
Legislation Cited: Biodiversity Conservation Act 2016, s 6.15
Environmental Planning and Assessment Act 1979, ss 4.16, 8.7
Land and Environment Court Act 1979, s 34
Rural Fires Act 1997
Environmental Planning and Assessment Regulations 2021, ss 37, 38
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Housing) 2021, s 80
State Environmental Planning Policy (Resilience and Hazards) 2021
State Environmental Planning Policy (Transport and Infrastructure) 2021
Warringah Local Environmental Plan 2000
Category: Principal judgment
Parties: David Oldfield (Applicant)
Northern Beaches Council (Respondent)
Representation: Counsel:
M Staunton (Applicant)
S Patterson (solicitor) (Respondent)
Solicitors:
Sattler & Associates (Applicant)
Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 2024/27859
Publication restriction: No
COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Northern Beaches Council (the Council) of DA2022/1530 (the Development Application) for the demolition of the existing dwelling and swimming pool, and construction of 35 self-contained seniors living dwellings (Proposed Development) at 171 Forest Way, Belrose NSW 2085 being Lot 9 DP 737255 (the Site).
The Site is irregular in shape with a western frontage of 72.26m to Forest Way, a depth of 189.09m and an eastern frontage of 42.535m to an unformed crown road. The Site has a surveyed area of approximately 1.085ha.
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on site and at council chambers.
At the conciliation conference, the parties reached 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. This decision involved Council approving an application to amend the Applicant’s plans pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the class 1 appeal and grant development consent to the Proposed Development with conditions at Annexure A. A reference to the Development Application in this judgment incorporates the Development Application as amended.
There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement). The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council’s Statement of Facts and Contentions.
The Development is integrated development under s 100B of the Rural Fires Act 1997. A s 100B approval has not been issued by the Rural Fire Service but this is not an obstacle to the Court granting development consent.
Both the applicant’s and respondent’s bush fire experts have met and agree on the final design of the buildings, landscaping and Asset Protection Zones on the site and the fire protection elements of the architectural design having fire shutters that will protect persons within the proposed buildings A & B at their eastern elevation, such that the Development complies with Planning for Bushfire Protection Guidelines or otherwise provides an acceptable performance based solution.
The Land being zoned B2 Oxford Falls Valley under the Warringah Local Environment Plan 2000 (WLEP 2000) does not come within the jurisdiction of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP), pursuant to s 80(1)(a) of the Housing SEPP.
Accordingly the DA is made pursuant to the WLEP 2000.
I have considered the jurisdictional provisions applicable to the Proposed Development that are raised by the following SEPPs, discussed in the parties Statement, and agree with the parties conclusions that no jurisdictional impediments arise pursuant to:
State Environmental Planning Policy (Resilience and Hazards) 2021
State Environmental Planning Policy (Transport and Infrastructure) 2021
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
The land is located within the B2 Oxford Falls Valley zone as identified within the WLEP 2000 with Housing for older people or people with a disability identified as category 2 development on land as described in paragraph (c) under the heading “Housing density”.
Paragraph C under the heading “Housing Density” states that the maximum housing density is 1 dwelling per 20 hectares of site area except:
(c ) on land that adjoins a locality that is primarily used for urban purposes and on which a dwelling house is permissible , where there is no maximum housing density if the development is for th4e purpose of “housing for older people or people with a disability” and the development complies with the minimum standards set out in clause 29.
In this regard the land adjoins a locality primarily used for urban purposes and on which a dwelling house is permissible being the land located on the western side of Forest Way.
The parties agree and the Court is satisfied that the development complies with the standards set out in cl 29 of the WLEP 2000 and to that extent the development is permissible with consent.
In relation to height, the DA breaches the development standard to height of 8.5m within WLEP 2000. In that regard the parties agree at paragraph 33 of the Statement that:
“[33] The DA relies on clause 20 of WLEP 2000 – ‘variation of development standards’ in support of the additional height. Strict compliance has been found to be unreasonable and unnecessary given the resulting developments consistency with the desired future character of the locality, the general principles of development control and the relevant State Environmental Planning Policies as detailed in section 4.7.3 of the Statement of Environmental Effects.”
The DA in its original form was advertised and notified to adjoining and nearby landowners in accordance with Council’s notification policy between 5 December 2022 and 24 January 2023. Nine submissions were received. The submissions raised matters to do with; traffic impacts, bushfire risk, tree removal, privacy impacts, compatibility with Locality B2 WLEP 2000, non-compliance with built form controls, natural environmental impacts, construction noise, stormwater impacts and land slips. These concerns have been incorporated into the SOFAC and have been considered by the parties in the resolution of the proceedings.
The final amended plans were re-notified to residents that lodged a submission in relation to the DA for a period of 14 days between 20 January 2025 and 3 February 2025. Council did not receive any further submissions in relation to the final amendment of the DA.
Community members representing environmental bodies also addressed the Court at the s 34 conference on Site. I am satisfied that the objectors reasonable concerns were considered by the parties and the objectors and community members were accorded procedural fairness.
For these reasons, based on the evidence before me, my observations on Site and submissions made by the parties representatives, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.
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. 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.
| Plan | Plan No. | Revision/ Issue No. | Plan date as amended | Prepared by | | Location Diagram | DA01 C | C | 10.12.2024 | Barry Rush architects | | Site Plan | DA02 C | C | 10.12.2024 | Barry Rush, architects | | Level One Plan | DA03 C | C | 10.12.2024 | Barry Rush Architects | | Level One Floor Plan | DA03 E | E | 10.12.2024 | Barry Rush, architects | | Level Two Floor Plan | DA04 C | C | 10.12.2024 | Barry Rush, architects | | Level Three Floor Plan | DA05 C | C | 10.12.2024 | Barry Rush, architects | | Level Four Floor Plan | DA06 C | C | 10.12.2024 | Barry Rush, architects | | Level Five Floor Plan | DA07 C | C | 10.12.2024 | Barry Rush, architects | | Level Six Floor Plan | DA08 C | C | 10.12.2024 | Barry Rush, architects | | Level Seven Floor Plan | DA09 C | C | 10.12.2024 | Barry Rush, architects | | Level Eight Floor Plan | DA10 C | C | 10.12.2024 | Barry Rush, architects | | Level Nine Floor Plan | DA11 C | C | 10.12.2024 | Barry Rush, architects | | Roof Plan | DA12 C | C | 10.12.2024 | Barry Rush, architects | | Elevations East and West | DA13 C | C | 10.12.2024 | Barry Rush, architects | | North Elevation Details of Fire Protection Zone | DA14 C | C | 10.12.2024 | Barry Rush architects | | Sections AA and BB | DA15 B | B | 10.12.2024 | Barry Rush architects | | Sections CC, DD, EE and FF | DA16 C | C | 10.12.2024 | Barry Rush architects | | Typical Unit Plans Sheet 1 | DA17 C | C | 10.12.2024 | Barry Rush architects | | Typical Unit Plans Sheet 2 | DA18 C | C | 10.12.2024 | Barry Rush architects | | Demolition Plan | DA19 C | C | 10.12.2024 | Barry Rush architects | | Site Analysis Plan | DA20 C | C | 10.12.2024 | Barry Rush architects | | External Colour Schedule | DA21 C | C | 10.12.2024 | Barry Rush architects | | Driveway Plan and Sections | DA22 C | C | 12.11.2024 | Barry Rush architects | | Landscape Area | DA23 C | C | 12.11.2024 | Barry Rush architects | | Excavation Plan | DA24 C | C | 12.11.2024 | Barry Rush architects | | Sediment Control Plan | DA25 C | C | 12.11.2024 | Barry Rush architects | | Accessible Footway to Bus Stop Pla | DA26 C | C | 12.11.2024 | Barry Rush architects | | Bushfire Report | | V1.1 | 22.11.2024 | Black Ash Bush Fire consultants. | | Stormwater Plans PS01-A000 | PS01-A000 | D | 15.8.23 | Martens Engineers | | Soil and Water Management Plan | PS01-B300 | D | 15.8.23 | Martens Engineers | | Soil and Water Management Details | PS01-B310 | B | 18.7.22 | Martens Engineers | | Sediment Basin Calculations | PS01-B315 | B | 18.7.22 | Martens Engineers | | Stormwater Plan – Drainage Plan | PS01-E100 | D | 15.8.23 | Martens Engineers | | Stormwater Plans Drainage Details | PS01-E200 | C | 15.8.23 | Martens Engineers | | Stormwater Plans Drainage Details | PS01-E201 | A | 15.8.23 | Martens Engineers | | Stormwater Plans Drainage Details | PS01-E202 | A | 15.8.23 | Martens Engineers | | On-Site Detention Catchment Plans, Models & Results | PS01-E600 | D | 15.8.23 | Martens Engineers | | Water Quality Catchment Plans, Models & Results | PS01-E700 | D | 15.8.23 | Martens Engineers | | Stormwater Management Report | P2108124JR04V05 | | June 2024 | Martens Engineers | | Waterways Impact Report | | RO | 6 August 2024 | H2O ecology consultants | | Access Report | | B | 17.6.24 | Ergon Consulting | | Biodiversity Assessment Report | | | 6.11.24 | Elizabeth Ashby of Keystone Consulting | | Contamination Detailed Site Investigation | | | 6.4.24 | Environmental Consulting Services | | Arborists and Tree Management Report | | | 29.10.24 | Redgum Horticultural | | Landscape Plan Site Plan Hardscape Plan | LPDA22-35 | G | November 2024 | Conzept landscape architects | | Existing Trees Site Plan | LPDA22-35 | G | November 2024 | Conzept landscape architects | | Master Plan F | LPDA22-35 | G | November 2024 | Conzept landscape architects | | Landscape Plan (Front) F | LPDA22-35 | G | November 2024 | Conzept landscape architects | | Landscape Plan – Broad walk | LPDA22-35 | G | November 2024 | Conzept landscape architects | | Landscape Plan (Podium) | LPDA22-35 | G | November 2024 | Conzept landscape architects | | Landscape Plan (Rear) | LPDA22-35 | G | November 2024 | Conzept landscape architects | | Details 1 B | LPDA22-35 | C | November 2024 | Conzept landscape architects | | Vergola and Picnic Table B | LPDA22-35 | C | November 2024 | Conzept landscape architects | | Details 2 B | LPDA22-35 | C | November 2024 | Conzept landscape architects | | Planting Matrix B | LPDA22-35 | C | November 2024 | Conzept landscape architects | | Tree Canopy Calculation A | LPDA22-35 | G | November 2024 | Conzept landscape architects |
The Court orders:
The appeal is upheld;
Development consent is granted to Development Application No. DA2022/1530 for demolition existing structures and the construction of 35 self-contained dwellings for older people and people with a disability, basement parking and landscaping on land at 171 Forest Way, Belrose NSW 2085, being Lot 9 in DP 737255, subject to conditions in Annexure A;
Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent’s costs thrown away in the agreed sum of ($18,000) within 30 days of these orders.
**********
Updated Annexure A
Oldfield
Northern Beaches Council [2025] NSWLEC 1341