Vigor Master Pty Ltd v Northern Beaches Council

Category: Principal judgment

Parties: Vigor Master Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation: Counsel:
J Doyle (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Vigor Master Pty Ltd (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2025/25509

Publication restriction: Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Northern Beaches Council, of Development Application DA2024/1256 which seeks consent for the construction of two boarding houses, in the form of four pavilions over a joint carpark, comprising 42 boarding rooms, and associated site works. The subject site is Lot 2506 in DP 752038 in Bundaleer Street, Belrose.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

3. The Court arranged a hearing to commence on 25 November 2025. At the commencement of the hearing, the parties advised that they had continued to conciliate and had resolved the issues in contention. They subsequently requested a further conciliation conference, which was arranged under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) and held on 26 November 2025.

4. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Council agreed to the applicant amending the development application to adequately address their contentions.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained. From this I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the owner of the land.

8. The application was adequately notified from 4 to 18 October 2024, and due to a clerical error renotified from 24 October to 21 November 2024. Six submissions were received in this time. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions.

9. The Northern Beaches Local Government Area is listed within Sch 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (NSW) (SEPP BC), and therefore Ch 4 Koala Habitat Protection 2021 applies. A Biodiversity Development Assessment Report (BDAR) accompanies the application, and determines that the site does not contain Core Koala Habitat as defined under s 4.2(1) of the SEPP BC. Subsequently, the BDAR confirms no significant impacts on koala habitat will result from the limited clearing proposed in the development.

10. The site is located within the Sydney Harbour Catchment and accordingly, Ch 6 of the SEPP BC applies. Based on the amended application and the parties’ submission, I accept that the requirements of Ch 6 relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met by the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), and is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10).

11. Pursuant to Ch 7 of the Biodiversity and Conservation Act 2016 (NSW), the BDAR confirms that the proposed vegetation clearing is below the Biodiversity Offset Scheme threshold, and that the development will not present any significant adverse impact on the natural assets of the catchment for their biodiversity, maintaining ecological processes. Therefore, no serious or irreversible impact arises from the application.

12. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (NSW) requires the consent authority to consider whether the site is contaminated, and if so, whether it will be suitable for the intended use. Based on the parties’ submissions and the information contained in the Statement of Environmental Effects by Planning Ingenuity dated 19 July 2024 (SEE) I accept that the land is currently used for the purpose of a boarding house, and that this use remains unchanged with the proposed development.

13. Pursuant to s 27 of the EPA Regulation, a BASIX certificate, that relates to the development as amended, accompanies the application.

14. The subject site is mapped as bushfire prone land and accordingly, s 4.14 of the EPA Act applies. Pursuant to the requirements of s 4.14(1), from the Bush Fire Assessment Report by Waratah Bushfire dated 11 November 2025 and the parties’ submissions, I accept that the development conforms with the specification and requirements of Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department. The recommended conditions of consent have been incorporated into Annexure A.

15. The subject site is mapped as ‘Deferred matter’ on the Land Application Map under the Warringah Local Environmental Plan 2011, and subsequently the land remains subject to the provisions of the Warringah Local Environmental Plan 2000 (WLEP). The site is located within the C8 Belrose North locality under Appendix C of the WLEP, within which development for the purposes of a boarding house is an innominate use under Category Two, and is permissible with consent.

16. Pursuant to cl 12 of the WLEP, the consent authority must be satisfied that the development is consistent with any relevant general principles of development control in Pt 4, must comply with the relevant requirements made by Pts 2 and 3, and must comply with relevant development standards set out in the Locality Statement for the C8 Belrose North Locality. From the parties’ detailed oral submission, the information within the SEE and the amended application, I accept that the requirements of cl 12 of the WLEP are met.

Conclusion

17. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

18. The Court notes:

19. Northern Beaches Council, as the relevant consent authority, approves under section 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the applicant amending Development Application no DA2024/1256, in accordance with the following documents (Amended Application):

| Plans | | Plan No. | Rev/Date: | Description | Prepared by | | DA-0-101 | J/2 December 2025 | Site Plan | Dickson Rothschild | | DA-0-209 | I/2 December 2025 | Basement Building 3 | Dickson Rothschild | | DA-0-210 | J/2 December 2025 | Ground Floor Building 3 and Basement Building 2 Plan | Dickson Rothschild | | DA-0-211 | J/2 December 2025 | Ground Floor Building 2 and First Floor Building 3 | Dickson Rothschild | | DA-0-212 | I/2 December 2025 | First Floor Building 2 and Roof Building 3 | Dickson Rothschild | | DA-0-213 | I/2 December 2025 | Roof Plan | Dickson Rothschild | | DA-0-214 | F/14 July 2025 | Section | Dickson Rothschild | | DA-0-215 | E/14 July 2025 | Section | Dickson Rothschild | | DA-0-216 | G/10 November 2025 | North & South Elevation | Dickson Rothschild | | DA-0-217 | G/10 November 2025 | East & West Elevation | Dickson Rothschild | | DA-0-300 | F/10 November 2025 | Schedule of Finishes | Dickson Rothschild | | SK102 | A/Not Dated | Building 1 Elevations (North, South, East, West) | Dickson Rothschild | | 1 | G/12 November 2025 | Site Plan | Paul Scrivener Landscape | | 2 | G/12 November 2025 | Detail Plan | Paul Scrivener Landscape | | 3 | G/12 November 2025 | Details Plan | Paul Scrivener Landscape | | 4 | G/12 November 2025 | Site Uses Plan | Paul Scrivener Landscape | | 5 | G/12 November 2025 | Planting Plan | Paul Scrivener Landscape | | 6 | G/12 November 2025 | Proposed Character Elevations | Paul Scrivener Landscape | | Reports | | Description | Date | Prepared by | | Biodiversity Development Assessment Report | 5 November 2025 | Enviro Ecology | | Bush Fire Assessment Report- addendum | 11 November 2025 | Waratah Bushfire | | Plan of Management | November 2025 | Vigor Master Pty Ltd | | Wastewater System Assessment | October 2025 | Martens |

19. The Court orders:

20. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the applicant is to pay those costs of the respondent that have been thrown away as a result of the Amended Development Application as agreed or assessed.

21. The appeal is upheld.

22. Development consent is granted to Development Application DA2024/1256, as amended, for construction of two (2) boarding houses to be constructed in the form of 4 pavilions over a joint carpark incorporating 42 boarding rooms and associated site works at Lot 2506 in DP 752038 in Bundaleer Street, Belrose, subject to the conditions of consent set out in Annexure A.

E Washington

Commissioner of the Court

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Annexure A (348 KB, pdf)