Vigor Master Pty Ltd v Northern Beaches Council [2025] NSWLEC 1520 | Case summary | Zoe

NSWNSWLEC

Vigor Master Pty Ltd v Northern Beaches Council

[2025] NSWLEC 1520

Land and Environment Court (NSW)|2025-07-21|Before: Dixon SC

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General information, not legal advice.

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2025-07-21

Before

Dixon SC

Catchwords

APPEAL – development application – senior living –
biodiversity impacts – statutory interpretation

Source

Original judgment source is linked above.

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Catchwords

APPEAL – development application – senior living –biodiversity impacts – statutory interpretation

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Vigor Master Pty Ltd v Northern Beaches Council [2025] NSWLEC 1520

Hearing dates: 7 and 10 March 2025

Date of orders: 21 July 2025

Decision date: 21 July 2025

Jurisdiction: Class 1

Before: Dixon SC

Decision: The Court orders:
(1) The appeal is upheld.
(2) Development consent is granted to development application DA2023/1932 for a senior living development located at 72 to 76 Willandra Road, Oxford Falls NSW of Lot 807, Lot 810 and Lot 811 in DP 752038, subject to the conditions of consent in Annexure A.
(3) The exhibits are to be returned following publication of the judgment except for Exs A and 1.

Catchwords: APPEAL – development application – senior living – biodiversity impacts – statutory interpretation

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), Pts 4, 5, ss 1.7, 4.15, 7.5, 7.13, 8.7
Biodiversity Conservation Act 2016 (NSW), Pts 4, 6, 7, ss 1.3, 6.2, 6.4, 6.7, 6.15, 7.5, 7.7, 7.12, 7.13, 8.4
Rural Fires Act 1997 (NSW), s 100B
Water Management Act 2000 (NSW), s 91
Biodiversity Conservation Regulation 2017, ss 1.4, 1.5, 4, 6.31
State Environmental Planning Policy (Koala Habitation Protection) 2021
Warringah Local Environmental Plan 2000, Div 4, Pt 4, cll 12, 14, 56, 58
Warringah Local Environmental Plan 2011

It is also asserted by the Council that the proposal is inconsistent with cl 14(1) and (2) of the WLEP 2000 for Category 2 development, in that the proposed housing for older people or people with disabilities does not represent the “low intensity, low impact “characteristics as required to be maintained by the DFC.
Council contends; and submits that the BC Act is intended to prevail only insofar as it relates to terrestrial biodiversity (EPA Act s 1.7). It prescribes a method of assessment – the Biodiversity Assessment Method (BAM) – and a credit scheme to offset “residual values” incorporated to avoid and minimise impacts (“residual values” being the impacts after measures undertaken (BC Act: s 6.2(d)).
The Council submits that the BC Act does not mandate a minimum standard of avoidance or minimisation; but rather creates a hierarchy for the purposes of the Biodiversity Offset Scheme (BOS) that favours avoidance of impacts by reasonable measures over minimisation; by reasonable measures over offsets (credit retirement) (BC Act, s 6.4). Nor does the BC Act, the BOS or the BAM mandate a normative standard about the extent to which impacts are to be minimised. That, Council would have it, is up to the proponent of the development. It is their opinion that the BAM only requires that those choices are assessed in terms of their impacts on biodiversity (CWS at [14]).
Further, the Council argues I should accept that the assessment of likely impacts of the development under the BC Act is not exclusive of the scope of the EPA Act; and that the Court, as consent authority, has a discretion, but not an obligation, to consider likely impacts beyond the assessment contained in the BDAR: BC Act s 7.13(2).
The BOS operates by requiring the assessment to be contained in the BDAR, in accordance with the BAM – with, at its endpoint, the identification of species and ecosystems credits to be retired to offset the residual impacts. It is the three elements of avoidance, minimisation and offset that result in the attainment of no net loss of biodiversity. Yet, this does not mean that “no net loss” is a criterion that governs any one of the elements – no such standard is prescribed within the BAM, the BOS or the BC Act.
The “no net loss” criterion referred to, Council claims, does not govern prescriptively any single element but refers to a totality.
Accepting that the WLEP 2000 is a mandatory consideration under s 4.15(1)(a) of the EPA Act (and clearly more prescriptive), the Council contends that cll 56 and 58 – in each case – provide a normative standard, about which the Court must be satisfied in order to enliven the power to grant development consent. They are principles in Pt 4 of the WLEP 2000 which are given substantive operation through cl 12(1)(a) of the WLEP 2000. It notes that cl 12(1) of the WLEP 2000 takes the familiar form of a condition precedent on the power to grant consent – conditional to satisfaction with consistency with the principles contained in Pt 4 (CWS at [37]). They operate as a constraint on powers called up under the EPA Act s 4.15(1)(a); and not because it is a likely impact of the development (s 4.15(1)(b)).
Council submits that these provisions do not speak to “no net loss of biodiversity” but require development to be designed to: “retain and complement”, “incorporate” or “be sympathetic to distinctive environmental features”: cl 56; and, further, “minimise the impact on remnant indigenous flora”: cl 58.
The Council insists that the offset by credits does not mandate the grant of consent. The discretion remains to refuse consent – the wording of s 7.13(3) of the BC Act is plain. Part 7 contemplates a dual assessment under both the BC Act and the EPA Act. The presumption being that Pt 7 and Pt 4 can operate in harmony together, and that s 7.5 of the BC Act has been included to cover any areas where there is a true inconsistency not expressly identified (CWS at [24-25]). That is, the section allows the Pt 4 assessment to be conducted, as required by s 7.13(2) so that it operates harmoniously, but notes, if any inconsistency arises, then Pt 7 prevails.
The Council submits that the approach to considering asserted inconsistency is clear; and “claims of actual contrariety between provisions emanating from the one legislative source should not be accepted unexamined …” with there being “a strong presumption that a legislative authority does not intend to contradict itself.” Universal Property Group v Blacktown Council [2020] NSWCA 106 per Baston JA at [7]) (Universal) (CWS at [20]-[26]).
With that in mind, the Council invites me to identify with precision the nature and scope of the supposed inconsistency – if any (Universal at [6]); and, after interrogation of the provisions, submits that I will find there is no inconsistency with Pt 7 of the BC Act. It submits that it is difficult to see a precise inconsistency between “habitat suitability” (s 1.5 BC Act) or “vegetation integrity” (s 1.5 BC Act) or the other factors listed in ss 1.5 and 1.4 (BC Regulation) with:

The applicant asserts that none of the WLEP 2000 provisions relied upon by the Council erect barriers to approval such that would supplement the analysis of biodiversity impacts which is now the exclusive domain of Pt 7 of the BC Act.
The applicant contends that the provisions relied upon by the Council “are, quintessentially, matters for planning assessment on a broader scale than the detailed (tree by tree) and expert assessments of biodiversity impacts required by Part 7” (Applicant Written Submissions (AWS) at [20]). What is more, in circumstances where the planning experts have concluded in their joint report that the development satisfies them, the applicant argues that their expert conclusion should not be disturbed. In fact, it cautions the Court against allowing those provisions of the WLEP 2000 “…to bleed into the biodiversity assessment of the proposal, by applying the extreme view of cl 56 adopted by the Court in Altre…” (AWS [21]). This interpretation, it asserts, is plainly wrong. In Altre Partners Pty Ltd v Northern Beaches Council [2023] NSWLEC 1145 (Altre), the Court held that the word “complement” in cl 56 required an outcome that the proposal should “in some form, improve or contribute positively to the features of the site” at [49(2)]. Its meaning, it is argued, was based on the view expressed by an ecological expert in the case and contrary to orthodox principles of statutory construction.
In the absence of a technical definition, the applicant submits that “to complement” in a design sense means to “fit in” rather than to “improve”; which it further asserts, is achieved in this case by a reduction of visual impacts of the development through reduced built form, separation of buildings, articulation and clever use of materials and colours and by detailed design to avoid the excavation of rock outcrop (which was a significant problem in the Altre case).
The proposal, it is insisted, also incorporates management of waterways and ecological restoration through the Waterway Impact Statement (Ex A Tab 23) and Biodiversity Management Plan (BMP) (Ex A Tab 14) to additionally “…retain and complement …”.
It is further submitted that the reintroduction of rock forms to the site and use of local vegetation rather than typical urban landscaping to “fit in” with the rock outcrop ensures that this dominant typology of the site is preserved. In short, it contends on the evidence that the development has been designed to add a congruent form to the cl 56 features; and is, thereby, consistent with the design principle.
The applicant submits that cl 58 is also a design provision – encouraging development to “minimise impacts on native vegetation”; that it does not require avoiding impacts – nor could that be the intent – given that development is permissible. In such bushland locality some clearing of vegetation is inevitable; and the applicant submits, that it has taken steps to minimise clearing as spelt out in the BDAR ( Urban Design Study , Tab 3 Ex A ,Tab 4 Landscape Plan, Tab 21 SEPP Housing Design Verification Statement; BDAR s 6.2.1- pp77-8, Ex A Tab 13 (AWS at [14])).
As to the assessment of biodiversity impacts under Pt 7 of the BC Act, the applicant submits that Pt 7 prevails over inconsistent provisions in the EPA Act, and any instrument under that Act – including cll 56 and 58 and the relevant Character Statement of the WLEP 2000. Put simply, the EPA Act is subject to Pt 7 of the BC Act to the extent that it relates to the terrestrial environment: s 1.7 EPA Act. The words “subject to”, it submits, is a usual way of making clear that the unqualified provision (the BC Act) prevails (Adrenaline Pty L**td v Bathurst Regional Council (2015) 97 NSWLR 207; [2015] NSWCA 123 at [56]). Therefore, inconsistent provisions that impose a standard, method or outcome in biodiversity assessment that departs from the biodiversity offsets scheme must be ignored. Moreover, any obligation to obtain concurrences under the EPA Act or the WLEP 2000 is overridden, if a BDAR is used to assess a DA and its consent requires the retirement of credits (s 7.12(2)). Only if the impacts of the development do not trigger Pt 7, do the WLEP 2000 provisions and Pt 4 (or Pt 5) of the EPA Act continue to apply unaffected by the BC Act.

For the reasons submitted by the applicant, as summarised, I find that there is inconsistency between the provisions at issue, as asserted.
In forming that view, it is to be noted that the EPA Act is subject to Pt 7 BC Act to the extent that it relates to the terrestrial environment: s 1.7 EPA Act. Furthermore, that the assessment of biodiversity impacts under Pt 7 of the BC Act prevails over inconsistent provisions in the EPA Act, and any instrument made under the Act: s 7.5(1) BC Act. Noting that the WLEP 2000 is such an instrument.
As the applicant submits, the inconsistent provisions here are those that impose a standard method or outcome in biodiversity assessment that departs from the biodiversity offset scheme, which is the intended leading provision (at [22] AWS). The objects of the BC Act, in particular objects (a), (k) and (m), are given effect by the BOS under Pt 6, by supplementing s 4.15 of the EPA Act in the assessment of development impacts on the terrestrial environment under Pt 7 of the BC Act: ss 7.5 and 7.13(2), and s 1.7 EPA Act.
Relevantly, s 6.2 of the BC Act describes the key features of the scheme, notably, to require assessment reports of biodiversity values and the impact of clearing and development on those values, and the measures “to offset the residual impact on biodiversity values after action that is required to be taken to avoid or minimise that impact” and to offset such impacts by “retirement of biodiversity credits or other conservation measures” s 6.2 (d) and (f) (AWS at [28]).
Simply stated, the biodiversity offsets scheme establishes a scientific method for assessing likely impacts on biodiversity values, calculating offsets and encouraging improvements in biodiversity: s 1.3 BC Act. Importantly, only an accredited assessor can prepare the BDAR in accord with the rules and the guidelines set out by the Minister in the BAM. In turn the BDAR’S compliance with the BAM ensures that the Government’s policy on biodiversity is implemented, as the BAM must adopt a standard that in the Minister’s opinion will result in no net loss of biodiversity in NSW (s 6.7(3)(b) BC Act). As such, I accept that there is no directive to achieve a “nature positive” outcome – or an improvement in biodiversity.
As the applicant points out, and contrary to the Council’s submissions, the BAM is based on a no net loss standard (s 1 para 3, s 10 para 1-3 (Ex B, Tab 14, p1, p 46)). The accredited assessor must use the data from mandated database (BAM 1.4) and the government BAM-C computer programme to assess biodiversity values. A quantitative approach to vegetation classification and integrity (BAM 3 and 4), and the undertaking of specific steps to assess the habitat suitability for threatened species (BAM 5) as well as the application of detailed guidelines on avoiding or minimising impacts by design (BAM 7) and by adaptive management cater for uncertainly (BAM 8.5) (AWS at [30]-[31]). Inevitably with development there will be residual impacts (being the impacts after avoidance and minimisation), however, the offsetting scheme offers an alternative to a refusal of consent by directing the use of the BAM-C to risk weight those impacts and classify and quantify the biodiversity credits generated to offset them (BAM 10.1.1, 10.2).
The applicant submits, and I accept that requiring improvements in biodiversity, as the WLEP 2000 provisions seek to do, contradicts the scheme and erects a higher bar to an approval than the standard adopted in the BAM by which biodiversity impacts of any development must be assessed. The overriding effect of s 7.5 of the BC Act depends on “contrariety”. Following the reasoning of the Court when dealing with s 8.4 of the BC Act and the State Environmental Planning Policy (Koala Habitation Protection) 2021 in Save Sydney*’s Koala’s (Southwest) Inc v Lendlease Communities (Figtree Hill) Pty Ltd (No 2) [2021] NSWLEC 102 (Save Sydney’s Koalas)**,* I find that the WLEP 2000 clauses at issue in this case have no operative effect for biodiversity as a mandatory consideration and that the assessment under s 4.15 of the EPA Act is confined to “likely impacts of the development” – with the assessment of the biodiversity impacts is to be carried out by the preparation of the BDAR s 7.7(1) BC Act.
In acknowledging that the Court has a discretion to consider ‘further’ likely biodiversity impacts, I accept, as the applicant submits, that this discretion would only be exercised if there were good reason to do so, and it could not be exercised by setting aside the BDAR assessment as that would be contrary to the scheme and the language of s 7.13(2) which invites “further “consideration, not consideration to displace the assessment of likely impact under the BDAR. The example put is, where the BDAR has been prepared, and a new species is then found on the site which had not been considered. In that circumstance any further impact on biodiversity might be taken into account as a matter of discretion, a circumstance that is not available on the evidence in the present case.
While in Planner**s North the Court endorsed the further consideration of biodiversity impact under s 4.15 of the EPA Act, it was only “as required and permissible respectively by s 7.13(2) of the BC Act” (at [11]), which the applicant identifies is the antithesis to the Council’s submission that the planning instruments imposing biodiversity assessment requirements “sit alongside Part 7”.
I accept that the assessment of the DA (through the BDAR) must demonstrate that there is “adequate avoidance etc measures” without which consent would likely to be refused. The measurement of adequacy (by reference to the BDAR with the BAM behind it) and not some criteria injected by a WLEP 2000 which has not been developed in accordance with the BAM’s scientific methodology.
The validity of the applicant’s BDAR has not been raised; only some aspects of the assessment carried out have been criticised by Mr Smith. Therefore, as the applicant rightly submits, the Court is bound to apply the BDAR to its assessment of biodiversity impacts for this DA: s 7.13(2).
In that regard, the BDAR demonstrates that the ecological impact of the development is low. The steps taken to minimise clearing are outlined in the BDAR.
Quite properly the BDAR does not consider “alleged past unlawful clearing” which Council’s ecologist asserts has given the applicant an unfair advantage in achieving a low VI score for existing clearing and disturbed areas. The raising of this matter in the Joint Expert Report, and Mr Smith’s search for a notional assessment of the cleared site – by assuming a situation where the site clearing had not occurred – is clearly at odds with the BC Act and the BC Regulation’s requirement for an assessment of the actual state of the site at the time of assessment – s 4 of the BC Regulation, s 6.15(1) BC Act – unless permitted otherwise under s 6.31 of that Regulation (AWS at [59]-[62]). This is consistent with the Court’s reasoning in Gold**coral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 (Goldcoral) that planning permission for construction and use could be granted to alter past unlawful development to allow its use and that the unlawful work of past owners is irrelevant: Goldcoral [52]-[54]. In any event, Council has not established or sought to establish that where clearing has occurred, it has been undertaken unlawfully.
The BDAR also has assessed that no threatened species will be impacted by the APZ for this development. The evidence is that the toadlet habitat is well preserved and will be enhanced by the management plan.
The other WLEP 2000 provision that the Council seeks to rely on is the character statement for the site. That said, cl 12(3) is plain in expressing that nothing in the statement is intended to create a prohibition on development as consistency with the provisions – not compliance, is required: cl 12(3)(b).
The applicant submits and I accept on its evidence that the development is a low intensity low impact use. In forming that view I find that “low intensity” refers to size, scale and the extent of activities associated with development and “low impact” refers to the magnitude of environmental impact which would be “unlikely to significantly change the amenity of the locality (see Platform Architects Pty Ltd v Northern Beaches Council [2020] NSWLEC 185 at [53]-[54]).
The planners have agreed that the redesign of the development has resolved contention 1 in respect of desired future – apart from one aspect – the APZ (JER at p 3). The assertion being that because the APZ requires some limited vegetation clearing and management, that the use has been changed to something other than low intensity and low impact and that removal of vegetation is not consistent with the character statement that “landforms and vegetation will be protected, and where possible, enhanced”. I do not accept that proposition. Leaving aside enhancement (which can be ignored as it is inconsistent with the BDAR) I find on the evidence that the development is consistent with “landforms and vegetation protection” because the proposed “building[s] will be grouped in areas that will result in the minimum amount of disturbance of vegetation and landforms”.
Ultimately, I accept that the words under review in the BC Act are not distinctly different to those in s 8.4(6) BC Act which intended to oust the operation of s 4.15 EPA Act and consequently the WLEP 2000 provisions related to the same subject matter: see Save Sydney*’*s Koalas at [137]. The same outcome follows in this case when considering the WLEP 2000 provisions including the DFC provision and the BC Act.
As the Council identifies these clauses are principles contained in Pt 4 and are intended to be given substantive operation through cl 12(1)(a) of the WLEP 2000 subject to Pt 7 of the BC Act: s 4.15(1)(a) of the EPA Act. To the extent that this is available I have carried out the Part 4 assessment, as required under s 7.13(2) where it can operate harmoniously. And, after careful consideration of all matters, I find on the evidence that the development is acceptable on its merits subject to the agreed conditions of consent in Exhibit G, as amended. In forming that view I have taken into account the planners’ agreed evidence which supports a conditional approval of the DA. I accept that the BDAR has assessed all relevant impacts and has reasonably avoided and minimised impacts, as Mr Sheather-Reid and Dr Henderson acknowledge.
The conservation outcome of a 77% retention of the existing native vegetation is as Mr Sheather-Reid and Dr Henderson state:

Vigor Master Pty Ltd v Northern Beaches Council

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English summary of this case

Catchwords

Judgment

JUDGMENT

Introduction

Decision

The proposal

Site and its Environs

Public Submissions

Actions of the Council

The Statutory Framework

Expert Evidence

Contentions

Are the WLEP 2000 and the BC Act inconsistent?

Council’s position

Applicant’s position

Finding

Conclusion

S Dixon

Senior Commissioner of the Court

Amendments

23 July 2025

29 July 2025

30 July 2025

12 August 2025

Parties

Legislation Cited (6)

Cases Cited (1)

Cited By (1)