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[2025] NSWLEC 1678
appellant. The appeal was upheld. Development Application DA2024/0715, as amended, for alterations and additions to a dwelling house including a swimming pool at 11 Taylor Street, North Curl Curl, was...
5 cited instruments linked from this judgment.
The Council had refused a house-alteration and swimming-pool application. During a court conciliation, the parties agreed on consent for an amended design. The Commissioner checked that no jurisdictional obstacle prevented the Court from making those agreed orders, then upheld the appeal and granted consent subject to conditions. The judgment does not decide whether the original contested planning concerns were resolved correctly on their merits.
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1,977 words · generated 02/10/2026
Matthew Olsson brought a Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) after the Northern Beaches Local Planning Panel refused Development Application DA2024/0715 on 19 March 2025 ([1]). The application concerned alterations and additions to an existing dwelling house, including a swimming pool, at 11 Taylor Street, North Curl Curl.
The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (NSW). Commissioner Gray presided over the conference, which commenced on 9 September 2025 ([2]). The parties reached an agreement under s 34(3) of that Act about the terms of a decision acceptable to them, and filed a signed agreement on the same day ([3]).
The agreement followed Council approval of amendments to the development application under ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW). The amended design included changes to the ground-floor layout, relocation of the swimming pool to increase landscaped area, narrowing and elongating the upper-floor addition to retain view corridors, a 170 mm reduction in the upper-floor addition's height, and treatment of a northern-elevation window to address visual-impact concerns ([3]). The judgment says the amendments addressed contentions about view loss, view sharing and overall height. The amended application also included an updated visual-impact assessment and preliminary geotechnical assessment ([3]).
On 19 September 2025, the Court upheld the appeal and granted consent to the amended application, subject to conditions in Annexure A ([9]). The judgment provided does not reproduce the text of those conditions, so their detailed content cannot be analysed from this decision alone.
The central question for Commissioner Gray was not whether the proposed development was preferable on its planning merits. It was whether the Court could lawfully make the decision the parties had agreed upon. Section 34(3) of the Land and Environment Court Act required the Commissioner to be satisfied that the agreed decision was one the Court could have made in the proper exercise of its functions ([5]).
The Commissioner explained this threshold by reference to whether there were jurisdictional constraints that prevented orders in accordance with the parties' agreement. The judgment cites McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4] and [51] in support of that description ([5]). The judgment does not reproduce the reasoning in McMillan, so its holding here should be described only as the Commissioner’s stated application of the s 34(3) test.
To reach the required satisfaction, Commissioner Gray considered the parties' Jurisdictional Statement and the documents identified in it, as well as the joint report, the Class 1 application and attachments, and documents incorporated by condition 1 ([4]). The judgment then records a series of jurisdictional and statutory matters. These included that a dwelling house was permissible in the R2 Low Density Residential zone; that the proposal complied with the applicable height development standard; and that no floor-space-ratio standard applied to the site ([5]).
The Commissioner also addressed the Warringah Local Environmental Plan 2011 provisions concerning earthworks and sloping land. In relation to earthworks for the pool, the Commissioner considered cl 6.2(3), relying on a geotechnical letter dated 10 September 2025. For cl 6.4, the judgment records reliance on a preliminary geotechnical report dated 26 August 2025 and a Statement of Environmental Effects dated May 2024. The Commissioner was satisfied about landslide risk, stormwater disposal through the existing system, and the absence of proposed subsurface disturbance beyond sandstone excavation ([5]).
The judgment further records consideration of contamination under s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, coastal matters under ss 2.10 and 2.11 of that policy, BASIX requirements, and notification to Ausgrid under s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 ([5]). The Commissioner also considered written submissions, including 13 submissions from the earlier notification periods and later submissions following revised plans, as well as oral submissions at the conference ([5]).
After finding the statutory threshold met, the Commissioner applied the procedural consequence stated in s 34(3): the Court had to dispose of the proceedings in accordance with the agreement and set out the decision's terms in writing ([6]). This explains the orders upholding the appeal and granting consent subject to conditions ([9]).
The limitation is express and important. Commissioner Gray stated that she was not required to make, and did not make, an evaluative judgment on the issues originally in dispute or an assessment of the development application against the discretionary matters in s 4.15 of the Environmental Planning and Assessment Act ([7]). The judgment therefore explains the Court's role in checking and implementing a conciliation agreement, not a contested adjudication of the planning merits.
The judgment does not announce a new rule or describe a change in the law. It applies the existing s 34(3) framework to the agreement reached in this proceeding. Its account of the test is that the Court must be satisfied that it could have made the agreed decision in the proper exercise of its functions, with attention to jurisdictional constraints ([5]).
The decision also states the statutory steps that follow once that satisfaction is reached: the Court must dispose of the proceedings in accordance with the agreed decision and set out the decision's terms in writing ([6]). In this case, that meant making the orders to which the parties had agreed, after checking the matters the Commissioner considered necessary to establish that the Court had authority to make them.
The planning matters listed in [5] should not be read as a complete or universal checklist for every s 34 agreement. They are the issues the Commissioner recorded as relevant to this application, including site-specific Warringah LEP provisions and requirements under several State Environmental Planning Policies. The judgment does not say that every future agreement requires precisely the same documents or inquiries.
Nor does the decision establish that agreement between parties, by itself, guarantees that consent will be granted. The Commissioner conducted a jurisdictional assessment before making the orders. The judgment describes the statutory test and how it was met on the material before the Court; it does not decide what result would follow in a different case or on a different record.
At [5], Commissioner Gray describes the s 34(3) test as concerning whether “there [are] no jurisdictional constraints” preventing orders in accordance with the parties’ agreement. In plain English, party agreement was not treated as enough on its own. The Commissioner had to be satisfied that the Court had legal authority to make the proposed orders.
At [5], the Commissioner states that she reached that satisfaction because “each of the jurisdictional preconditions identified by the parties is met”. The following matters show what that meant in this proceeding: permissible land use, the applicable height and floor-space-ratio position, earthworks and sloping-land matters, coastal and contamination considerations, BASIX material, electricity-network notification, and public submissions. These are findings recorded in this judgment, tied to the application and evidence before the Court.
At [6], the judgment says that, having reached the required state of satisfaction, s 34(3)(a) required the Court to “dispose of the proceedings in accordance with the decision”. Section 34(3)(b) also required the terms of the decision to be given in writing. Put simply, after the statutory check, the Court was to give effect to the agreed outcome and formally record it.
At [7], the Commissioner explains that she made no “evaluative judgment” on the original disputes and did not assess the development application against the discretionary matters under s 4.15. This is the key qualification to the result. Although the Court granted consent, the decision is not a merits ruling that resolves each planning contention after contested evaluation.
Finally, [9] contains the operative orders: “The appeal is upheld” and consent is granted to the amended application, subject to Annexure A. The judgment's discussion explains why the Court could make those orders; the orders themselves set out what was formally decided.
The decision is most directly relevant to a New South Wales Land and Environment Court proceeding in which parties reach an agreement at a conciliation conference and ask the Court to make orders reflecting it under s 34(3) of the Land and Environment Court Act. Its procedural reasoning may assist in understanding that a Commissioner must still be satisfied that the agreed decision is within the Court's functions and is not blocked by jurisdictional constraints ([5]).
The particular planning context here was a s 8.7 Class 1 appeal about a refused residential development application. The application was amended during the process, and the agreement contemplated consent to the amended proposal subject to conditions ([1], [3], [9]). The Commissioner reviewed material relevant to that specific development and addressed submissions from residents ([4]–[5]).
The judgment does not establish a rule for every consent agreement, every planning appeal, or every type of proceeding. It does not identify all circumstances that could amount to a jurisdictional constraint. Nor does it set out the full consent conditions, since Annexure A is referenced but not reproduced in the supplied judgment text. Any use of the decision beyond the statutory conciliation context described in it would require attention to the relevant legislation and facts.
The supplied judgment contains no discussion of later decisions treating Olsson v Northern Beaches Council. It is dated 19 September 2025, and the text provides no subsequent case history. Accordingly, no claim about later application, approval, distinction, or criticism can be grounded in this source.
The only other case cited in the judgment is McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183. Commissioner Gray cites it for the explanation of the s 34(3) test, identifying [4] and [51] of that decision ([5]). The present judgment does not analyse the full reasoning in McMillan or describe any later treatment of it.
The source-grounded account is therefore narrow: Olsson cites McMillan when explaining the jurisdictional-constraints test and applies that test to the parties' agreed outcome. Whether later courts have treated Olsson itself as persuasive or have applied its reasoning cannot be established from the judgment provided.
The judgment leaves the merits of the original planning disputes unresolved. It records that the amended design responded to concerns about view loss, view sharing, height and visual impact, but expressly says that the Commissioner did not make an evaluative assessment of those matters ([3], [7]). It therefore does not decide, as contested propositions, the appropriate weight of those considerations or whether the original design would have satisfied the relevant discretionary planning controls.
The decision also does not set out the full conditions of consent. The operative order incorporates Annexure A, but the body of the supplied text does not state what each condition requires. The reasons refer to documents incorporated by condition 1, but those documents and the full annexure are not reproduced here ([4], [9]).
The judgment records the Commissioner's conclusions about the particular site's planning constraints and supporting reports. It does not determine how the same provisions would apply to other land, designs or evidence. For example, its statements about stormwater, excavation, coastal impacts and geotechnical risk depend on the material identified for this site ([5]).
Finally, the decision does not catalogue every possible jurisdictional obstacle relevant to a different conciliation agreement. It identifies the threshold, cites McMillan, and explains why the preconditions identified by the parties were met in this case ([5]). The boundary of the Court's functions in other factual or statutory settings is not resolved in the text.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Olsson v Northern Beaches Council [2025] NSWLEC 1678
Hearing dates: Conciliation on 09 September 2025
Date of orders: 19 September 2025
Decision date: 19 September 2025
Jurisdiction: Class 1
Before: Gray C
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development Application DA2024/0715, as amended, for alterations and additions to a dwelling house including the addition of a swimming pool at 11 Taylor Street, North Curl Curl, is determined by the grant of consent subject to the conditions at Annexure A.
Catchwords: APPEAL – development application – alterations and additions to an existing dwelling house – conciliation conference – agreement reached – orders made
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7
Land and Environment Court Act 1979 (NSW), s 34, 34AA
Environmental Planning and Assessment Regulation 2021 (NSW), ss 27, 37, 38
State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48
Warringah Local Environmental Plan 2011, cll 4.3, 4.4, 6.2, 6.4
Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183
Category: Principal judgment
Parties: Matthew Olsson (Applicant)
Northern Beaches Council (Respondent)
Representation: Counsel:
L Nurpuri (Applicant)
B Lennox (Solicitor) (Respondent)
Solicitors:
Mills Oakley Lawyers (Applicant)
SG Law (Respondent)
File Number(s): 2025/149906
Publication restriction: Nil
COMMISSIONER: This appeal concerns a development application for alterations and additions to an existing dwelling house at 11 Taylor Street, North Curl Curl. The development application was refused by the Northern Beaches Local Planning Panel on 19 March 2025. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference commenced on 9 September 2025. I presided over the conciliation conference.
At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The final signed agreement was filed the same date. The agreement follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation 2021). The amendments to the design of the proposed development include reconfiguration of the internal layout of the ground floor, relocation of the swimming pool to increase the landscaped area, a narrowing and elongation of the upper floor addition in order to retain view corridors across the site from adjacent properties, a reduction of the height of the upper floor addition by 170mm, and treatment of the window on the northern elevation to address issues of visual impact. The amendments address contentions concerning view loss, view sharing and overall height. The amended development application also includes an updated visual impact assessment and an updated preliminary geotechnical assessment.
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, which provides the history of the appeal proceedings and sets out what the parties consider to be the jurisdictional matters required to be considered prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the joint report filed on 19 August 2025, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.
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 could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:
The development works are for the purposes of a dwelling house, which is a permissible use in the R2 Low Density Residential zone pursuant to the Warringah Local Environmental Plan 2011 (WLEP).
The proposed development complies with the height development standard that applies pursuant to cl 4.3 of the WLEP, and there is no floor space ratio development standard that applies to the site pursuant to cl 4.4 of the WLEP.
The development application includes earthworks for the swimming pool. Based on the letter from White Geotechnical Group dated 10 September 2025, I have considered the matters set out in cl 6.2(3) of the WLEP.
Clause 6.4 of the WLEP relates to development on sloping land, and applies to the site. Based on the preliminary geotechnical report dated 26 August 2025 and the Statement of Environmental Effects dated May 2024, I am satisfied of each of the matters in cl 6.4(3). Specifically:
(a) The preliminary geotechnical report dated 26 August 2025 sets out the assessment of the risk associated with landslides, in satisfaction of cl 6.4(3)(a). (b) The Statement of Environmental Effects dated May 2024 confirms that the stormwater will be disposed of using the existing stormwater system, which means that there will be no or negligible impacts from stormwater discharge from the proposed development, in satisfaction of cl 6.4(3)(b). (c) The excavation is limited to excavation of sandstone bedrock, and no other subsurface disturbance is proposed, such that there will be no impact on the existing subsurface flow conditions, in satisfaction of cl 6.4(3)(c).
Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH). As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.
The site is within the coastal environment area and parts of the site are within the coastal use area, pursuant to the SEPP RH. There is no development proposed in the coastal use area. Based on the location of the site, the extent of the alterations and additions as shown on the architectural plans, the avoidance of the coastal use area in the proposed works, and the preliminary geotechnical report dated 26 August 2025, I have considered each of the matters in ss 2.10(1) and 2.11(1)(a), and, consistent with ss 2.10(2)(a) and 2.11(1)(b)(i) I am satisfied that the development will not have any adverse impacts on the matters set out in ss 2.10(1) and 2.11(1)(a) of the SEPP RH.
Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 24 August 2025. Based on the letter dated 12 September 2025 and the accompanying BASIX report and the Energy Score breakdown, I am satisfied of the requirement in s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022.
The proposed development could affect an electricity power line or an electricity distribution pole, as a result of which s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 requires notification to the electricity supply authority and consideration of their response. Consistent with those requirements, Ausgrid was notified of the development application and I have considered the content of their response.
The development application was notified between 21 June and 5 July 2024, and again between 17 and 31 July 2024. A total of 13 submissions were received. Following the Revision 3 plans, the resident objectors were again notified, and a number of written submissions were received in September 2025. I have considered the issues raised in all of the written submissions received. In addition, Mr Bray attended the conciliation conference and made oral submissions, together with his solicitor and town planner, who also made oral submissions on his behalf. I have considered the issues raised in those submissions. Although it is not necessary for me to be satisfied that those issues have been considered by the parties or responded to, I am satisfied that the issues raised by the resident objectors have been considered by the parties, and that changes have been made to the design of the development to respond to those issues.
Having reached the state of satisfaction that the decision is one that the Court could have made 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)).
The Court notes that:
Northern Beaches Council, as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant’s amendment to Development Application DA2024/0715, to include the following documents (‘Amended Application’):
| 1 | Architectural Plans prepared by Scope Architects Pty Ltd A01 – Cover sheet Rev 04, 9 September 2025 A02 – Site Plan & Analysis Rev 04, 9 September 2025 A03 – Lower Ground Floor Plan Rev 03, 24 August 2025 A04 – Ground Floor Plan Rev 03, 24 August 2025 A05 – First Floor Plan Rev 04, 9 September 2025 A06 – Elevations Rev 04, 9 September 2025 A07 – Elevations Rev 04, 9 September 2025 A08 – Cross Sections Rev 03, 24 August 2025 A09 – Long Sections Rev 04, 9 September 2025 A10 – Shadow Diagrams – June 21 9am Rev 03, 24 August 2025 A11 – Shadow Diagrams – June 21 12pm Rev 03, 24 August 2025 A12 – Shadow Diagrams – June 21 3pm Rev 03, 24 August 2025 A13 – Shadow Diagrams – June 21 12pm & 3pm Rev 03, 24 August 2025 A14 – Calculations Rev 03, 24 August 2025 | 24 August 2025 and 9 September 2025 | | 2 | Updated Visual Impact Assessment prepared by Urbaine Design Group | 4 September 2025 | | 3 | Updated Preliminary Geotechnical Report prepared by White Geotechnical Group | 26 August 2025 | | 4 | BASIX Certificate No. A1742198_06 | 24 August 2025 |
The Court orders that:
The appeal is upheld.
Development Application DA2024/0715, as amended, for alterations and additions to a dwelling house including the addition of a swimming pool at 11 Taylor Street, North Curl Curl, is determined by the grant of consent subject to the conditions at Annexure A.
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Annexure A (182 KB, pdf)
Olsson
Northern Beaches Council [2025] NSWLEC 1678
(2023) 111 NSWLR 634
The appeal was upheld. Development Application DA2024/0715, as amended, for alterations and additions to a dwelling house including a swimming pool at 11 Taylor Street, North Curl Curl, was determined by the grant of consent subject to the conditions in Annexure A ([9]).
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or 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.