Restreet Pty Ltd v Northern Beaches Council

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

Representation: Counsel:
J Oldknow (Solicitor) (Applicant)
M Cottom (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Northern Beaches Council (Respondent)

File Number(s): 2026/75824

Publication restriction: Nil

Judgment

COMMISSIONER:

Background

1. This matter concerns an appeal made directly to the Land and Environment Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicant seeking to modify DA2024/1003 (Original Consent). The Original Consent was granted by the Land and Environment Court on 3 October 2025 and approved demolition and construction of a shop top housing at 1, 3 and 5 Rickard Road, North Narrabeen (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

The Modification Application

3. The Modification Application (No. Mod2026/0088) sought to amend the Original Consent by:

4. amending vehicular and pedestrian entries, including reconfigured lobbies;

5. reconfiguring parking areas;

6. relocating bin store room;

7. reconfiguring commercial premises;

8. reconfiguring all residential apartments and adding two residential apartments (from 14 to 16);

9. relocating the communal lift and stairs;

10. relocating skylights and air conditioning plant on the roof and adding screening around the air conditioning plant;

11. deleting the communal open space from the roof;

12. amending the landscape treatment in response to the built form changes;

13. increasing the building height by way of increased floor to ceiling heights; and

14. adjusting building façade materials and finishes.

15. On 23 February 2026, the applicant lodged the Modification Application with the Court.

16. The Modification Application was notified between 18 March and 1 April 2026. One submission was received objecting to the Modification Application.

17. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 4 June 2026 and subsequently adjourned on multiple occasions. I presided over the conciliation conference.

The Amended Modification Application

7. During the conciliation process, the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. A final signed s 34 agreement was provided to the Court on 3 August 2026 following the applicant amending its Modification Application with the respondent’s agreement (Amended Modification Application). The agreed amendments include:

8. increased setback of north-eastern corner;

9. addition of bulky goods room;

10. addition of nominated area for shelter in place;

11. relocation of air conditioning condensers;

12. traffic signals added to ground parking level;

13. parking layout amended;

14. inclusion of balconies to commercial spaces;

15. bathroom added to each commercial tenancy;

16. room depth of kitchens reduced;

17. internal layout changes;

18. amendments to apartment mix; and

19. concrete awning added over living room sliding doors on roof level.

20. The decision agreed upon is for the grant of consent to the Amended Modification Application, subject to conditions of consent.

21. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. 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.

Jurisdictional considerations

10. As the presiding Commissioner, I am satisfied that the decision is one 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 form this state of satisfaction for the reasons that follow:

Owner’s consent

11. The Modification Application is accompanied by a letter of consent from the registered proprietor of the Subject Land (see Class 1 Application, tab 2).

The EPA Act

12. As the Original Consent was granted by the Land and Environment Court, the Modification Application was lodged directly with the Court pursuant to s 4.55(8) of the EPA Act.

13. Section 4.55(2) of the EPA Act relevantly provides that a consent authority may modify development consent if it is satisfied of, and has considered, specified matters. Each relevant matter set out in s 4.55(2) is addressed below.

14. For the purposes of s 4.55(2)(a), I am satisfied that the consent as modified is substantially the same development as the development for which consent was originally granted for the following reasons:

15. The proposed modifications, as amended, generally retain the approved building footprint, and the additional height and overall built form will not be perceived as inappropriate in the streetscape.

16. The proposed modifications, as amended, do not compromise the overall design quality of the development having regard to the design quality principles at Ch 4 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) and the NSW Planning and Environment, Apartment Design Guide 2015 (ADG).

17. The proposed modifications, as amended, do not materially alter the approved site layout, landscaping framework or operational characteristics of the development, and any changes to structural elements, services or basement configuration are minor and do not affect the overall scale or intensity of development.

18. The proposal, as amended, remains a shop top housing with an improved mix of residential and non-residential floor space and the maintenance of appropriate street activation.

19. In qualitative terms, the proposed modifications, as amended, will maintain consistency with the approved development in terms of bulk, scale and relationship to the streetscape and surrounding development.

20. The proposed modifications, as amended, do not give rise to any unacceptable or non-compliant environmental impacts, including in respect of amenity, privacy, overshadowing, acoustic performance or traffic generation.

21. The parties agree, and I accept, that s 4.55(2)(b) of the EPA Act is not relevant in this matter.

22. For the purposes of s 4.55(2)(c) of the EPA Act, the Court as the consent authority must be satisfied that the development to which the consent as modified relates has been notified in accordance with a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of application for modification of development consent.

23. As set out at [5], the Modification Application was notified between 18 March and 1 April 2026. One submission was received objecting to the Modification Application, raising concerns including:

24. increased floor area below the flood level;

25. reduced access and egress efficiency; and

26. increased vehicular movements.

27. The parties agree, and I accept, that the nature of the amendments to the Modification Application are minor and do not require renotification under the respondent’s Community Participation Plan, 2019.

28. In relation to s 4.55(2)(d) of the EPA Act, the submissions received as part of the notification process have been taken into consideration in reaching agreement to resolve this matter. To this end, I note that the Court heard from one objector during the site view associated with the conciliation conference. The parties agree that the relevant concerns of objectors have been considered.

29. In respect of s 4.55(3) of the EPA Act, in determining the Amended Modification Application, I have taken into consideration:

30. the reasons given by the consent authority (in this case the Court – see The Trust for the Alda Industrial Properties Trust No. 2 v Northern Beaches Council [2025] NSWLEC 1722) for the grant of the Original Consent; and

31. such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the Amended Modification Application.

32. Matters relevant under s 4.15(1) of the EPA Act are considered below.

State Environmental Planning Policy (Resilience and Hazards) 2021

22. The Subject Land is subject to the provisions in Ch 4 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP).

23. I am satisfied that the works proposed by the Amended Modification Application do not give rise to any further or additional considerations of the RH SEPP beyond what was considered in the granting of the Original Consent.

State Environmental Planning Policy (Housing) 2021

24. In relation to s 146 of the Housing SEPP relating to Referral to design review panel for modification applications, the parties agree and I accept, that the Modification Application was not required to be referred to the relevant design review panel for advice before determining the application on the basis that the (updated) Design Verification Statement prepared by Mr Scott Walsh dated 23 June 2026 (Design Statement) complies with s 102 of the EPA Regulation.

25. In relation to s 147(1) of the Housing SEPP relating to Determination of development applications and modification applications for residential apartment development, the parties agree, and I accept that, the Amended Modification Application has been assessed against the design quality principles contained in Sch 9 and the ADG, having regard to the Design Statement.

State Environmental Planning Policy (Sustainable Buildings) 2022

26. The Amended Development Application is accompanied by an updated BASIX Certificate No. 1756422M_04 prepared by Building Sustainability Assessments dated 22 June 2026.

Pittwater Local Environmental Plan 2014

27. The Subject Land is zoned E1 Local Centre under the Pittwater Local Environmental Plan 2014 (PLEP). I confirm that I have had regard to the E1 zone objectives. The parties agree that the proposed land use (shop top housing) remains unchanged from the Original Consent. The parties agree, and I accept, that the proposed development remains consistent with the objectives of the E1 zone.

28. Pursuant to cl 4.3 of the PLEP relating to height of buildings, the Subject Land is subject to a maximum building height of 8.5m. The Amended Modification Application exceeds the maximum height, however, the parties agree that the height exceedance is acceptable in the circumstances and a cl 4.6 variation request is not required in this case.

29. Pursuant to cl 5.21 of the PLEP relating to flood planning, the consent authority must not grant consent to development unless it is satisfied of the matters in cl 5.21(2) and has considered the matters in cl 5.21(3). The parties agree that the Subject Land is located within the flood planning area and cl 5.21 of the PLEP therefore applies. Having regard to the Flood Risk Management Report prepared by Pyramid Engineering dated 18 June 2026, I confirm that I am satisfied of the matters set out in cl 5.21(2) and have considered the matters in cl 5.21(3) of the PLEP.

30. Pursuant to cl 7.2 of the PLEP relating to earthworks, the Amended Modification Application does not propose any additional earthworks to that considered and approved by the Original Consent.

Conclusion

31. 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.

32. The Court notes that the respondent, as the relevant consent authority, has approved, under s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW), the applicant amending Modification Application No. 2026/0088 to include the following documents:

| 1 | Architectural Plans (Up to Rev D) prepared by Walsh Architects, including: • DA000 - Cover Page (Rev D dated 12 June 2026) • DA040 - Proposed Site Plan (Rev C dated 9 June 2026) • DA050 - 3D Views - Comparison to Approved (Rev C dated 9 June 2026) • DA051 - 3D Views - Comparison to Approved (Rev C dated 9 June 2026) • DA101 - Sub Floor Flood Zone (Rev C dated 9 June 2026) • DA102 - Ground Parking Level (Rev D dated 12 June 2026) • DA103 - Level 1 (Rev C dated 9 June 2026) • DA104 - Level 2 (Rev C dated 9 June 2026) • DA105 – Level 3 (Rev C dated 9 June 2026) • DA106 - Roof Level (Rev C dated 9 June 2026) • DA200 - Sections (Rev C dated 9 June 2026) • DA201 - Sections (Rev C dated 9 June 2026) • DA300 - Elevations (Rev C dated 9 June 2026) • DA301 - Elevations (Rev C dated 9 June 2026) • DA400 - Area Calculations (Rev C dated 9 June 2026) • DA500 - Shadow Diagrams - 9am June 21st (Rev C dated 9 June 2026) • DA502 - Shadow Diagrams - 12pm June 21st (Rev C dated 9 June 2026) • DA503 - Shadow Diagrams - 3pm June 21st (Rev C dated 9 June 2026) • DA600 - Views From Sun - June 21st (Rev C dated 9 June 2026) • DA601 - Views From Sun - June 21st (Rev C dated 9 June 2026) • DA602 - Views From Sun - June 21st (Rev C dated 9 June 2026) • DA700 - Height Control Diagram (Rev C dated 9 June 2026) • DA701 - ADG Compliance Diagrams (Rev C dated 9 June 2026) | Various dates | | 2 | Amended Stormwater Plans (Up to Rev P2) prepared by Goldfish & Bay, including: • 0000 - Cover Sheet And Drawing List (Rev P1 dated 16 March 2026) • 0010 - General Notes Sheet 1 (Rev P1 dated 16 March 2026) • 0011 - General Notes Sheet 2 (Rev P1 dated 16 March 2026) • 0030 – General Arrangement Plan (Rev P2 dated 19 June 2026) • 0100 – Civil Works Plan (Rev P2 dated 19 June 2026) • 0700 – Stormwater Drainage OSD Tank Plan (Rev P2 dated 19 June 2026) • 0705 - Stormwater Drainage OSD Tank Sections and Details (Rev P2 dated 19 June 2026) • 0750 - Stormwater Drainage Catchment Plan (Rev P2 dated 19 June 2026) • 0800 - Erosion And Sediment Control Plan (Rev P1 dated 16 March 2026) • 0850 - Erosion And Sediment Control Details (Rev P1 dated 16 March 2026) | Various dates | | 3 | Design Verification Statement prepared by Walsh Architects | 23 June 2026 | | 4 | Traffic and Parking Assessment prepared by Genesis Traffic | 17 June 2026 | | 5 | Flood Risk Management Report prepared by Pyramid Engineering Consult | 18 June 2026 | | 6 | BCA Assessment Report prepared by Jensen Hughes | 17 June 2026 | | 7 | BASIX Certificate No. 1756422M_04 prepared by Building Sustainability Assessments | 22 June 2026 | | 8 | Access Letter prepared by Allcert | 19 June 2026 | | 9 | Geotechnical Investigation Report prepared by NR Engineering Consultants | 18 June 2026 | | 10 | Operational Waste Management Plan prepared by Elephants Foot | 16 June 2026 |

Orders

33. The Court orders that:

34. The appeal is upheld.

35. Development Consent No. DA2024/1003 is modified in the terms set out in Annexure A.

36. Development Consent No. DA2024/1003 as modified by the Court is Annexure B.

N Targett

Commissioner of the Court

**********

Annexure A (207 KB, pdf)

Annexure B (385 KB, pdf)