Willowvale Road Investments Pty Ltd v Northern Beaches Council

Texts Cited: Warringah Development Control Plan 2011

Category: Principal judgment

Parties: Willowvale Road Investments Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation: Counsel:
T March (Applicant)
F Berglund (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Northern Beaches Council (Respondent)

File Number(s): 2025/83854

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal by Northern Beaches Council of development application DA2024/1418 (the DA). The DA sought consent for Torrens title subdivision of one lot into two lots resulting in lot sizes of 441.5m² (excluding Right of Way) for Lot 1 and 480.1m² for Lot 2, demolition of the existing carport and driveway structures, construction of access driveway and associated right of way adjacent to western boundary, construction of double carport and hardstand area (Lot 2), and removal of three trees on the land at 37 Toronto Avenue, Cromer, 2099 (also legally known as Lot 14, Section 2, DP 1818) (the site).

2. The DA was lodged with Council on 17 October 2024 and placed on public exhibition from 29 October 2024 until 12 November 2024. No submissions were received in response to the notification.

3. On 13 January 2025, the Applicant provided amended plans and documentation to address the issues with the DA identified by the Respondent.

4. On 19 February 2025, the amended DA was referred to the Northern Beaches Local Planning Panel (NBLPP) for determination, with a staff recommendation for refusal. The NBLPP determined the application by way of refusal.

5. The Applicant filed a Class 1 Application with the Court on 3 March 2025. The Respondent filed a Statement of Facts and Contentions (SOFAC) with the Court on 25 March 2025.

Section 34AA Conciliation Conference

6. The Court arranged a mandatory conciliation conference under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) on 7 July 2025 which commenced with an on-site view under s 34 (1) of the LEC Act between the parties, and at which I presided. The on-site view included an inspection of other developments in the immediate area where secondary dwellings had been constructed, or sites had been subdivided.

7. The parties attempted to reach agreement on the issues remaining in contention at the conciliation conference and discussed further amendments to the proposed development both at the on-site view and later in Court prior to the hearing commencing.

8. However, as the parties were unable to resolve all the contentions and reach a s 34 agreement, I terminated the conciliation conference pursuant to s 34(4) of the LEC Act and proceeded forthwith to hearing.

The Amended Plans

9. At the commencement of the hearing, the Applicant tendered amended plans as Exhibit A and an amended cl 4.6 variation request, prepared by Vaughan Miligan Development Consulting Pty Ltd (undated but stated by Mr March to be the version as at 25 June 2025), as Exhibit C.

10. At the request of the Applicant, and with the agreement of the Respondent, I granted leave for the DA to be amended in accordance with the bundle of plans and documents tendered by the Applicant as Exhibit A (the further amended DA).

11. The Court, in granting the Applicant leave to rely upon the amended plans and other documents exercised, under s 39(2) of the LEC Act, the functions and discretions of the Northern Beaches Council, as the relevant consent authority, to approve the amending of the DA by the Applicant, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), in accordance with the amended plans and other documents for which leave was granted.

The site and its context

12. The Respondent provided a description of the site and the surrounding locality in the SOFAC, and the following paragraphs draw on that description.

Site Description

13. The site is located at 37 Toronto Avenue, Cromer (legally described as Lot 14, Section 2, DP 1818) and is located on the southern side of Toronto Avenue.

14. The site is regular in shape with a frontage of 20.115m along Toronto Avenue and a depth of 50.44m. The site has a surveyed area of 1,015m² in one allotment.

15. The site accommodates a two storey dwelling house at the rear of the site and a carport at the front. The rearward location of the existing dwelling house means the dwelling has a front setback of 37.8m.

16. The site slopes down approximately 8.0m from the south (rear) to the north (front).

17. The site is heavily vegetated forward of the existing house, with landscaped gardens contains grassed areas, shrubs, hedges and some trees.

Surrounding Locality

18. The adjoining and surrounding development in the vicinity of the site is characterised by one and two storey detached dwelling houses of varying architectural styles. The prevailing character of the locality is of single dwelling houses on large lots. The northern side of Toronto Avenue is characterised by irregular shaped allotments with a distinctive front lot and battleaxe rear lot pattern. However, the southern side of Toronto Avenue, including the subject site is predominately regular shaped allotments with lots averaging 1,000m2.

19. There are a number of dwelling houses in the locality with secondary dwellings, including the adjoining neighbours to the east and west (35 and 39 Toronto Avenue, respectively). Within the wider locality, there are a few examples of undersized lots resulting from land subdivisions, however these are limited and not a significant part of the character of the area. According to Council's records, there is not a recent history of approvals for undersized lots.

20. The locality is characterised by low density residential dwellings set amongst an undulating landscaped setting in which the natural landscape in the form of tree cover predominates.

Statutory Controls

Warringah Local Environmental Plan 2011

21. The Warringah Local Environmental Plan 2011 (the LEP) is the principal environmental planning instrument applying to the site.

22. The site is located within Zone R2 Low Density Residential pursuant to cl 2.2 of the LEP.

23. Clause 2.6 of the LEP relates to subdivision – consent requirements.

24. The relevant clauses of the LEP are:

25. Clause 4.1 – minimum subdivision lot size; and

26. Clause 4.6 – Exceptions to development standards (as both lots proposed to be created are less than the minimum lot size).

27. The minimum lot size development standard is 600m2 as shown on the Lot Size Map referred to at cl 2.6(2) of the LEP.

Expert Evidence

26. The Court was assisted by expert evidence in the following discipline:

27. Planning:

(a) Mr Vaughan Milligan (Consultant Planner) for the Applicant; and (b) Mr Simon Ferguson Tuor (Planner, Northern Beaches Council) for the Respondent.

27. The Joint Report of the planning experts (the Joint Expert Report) examined the amended set of plans as of 20 June 2025, when the Joint Expert Report was filed with the Court.

28. The town planning experts attended the hearing and were cross-examined on their evidence. As discussed below at [30] – [32], the only contention between the parties was the application of cl 4.6 of the LEP to vary the minimum subdivision lot size under cl 4.1 of the LEP.

Contentions relating to the Proposed Development

29. The SOFAC detailed the following two contentions that the Respondent said were relevant to the determination of the DA, prior to the most recent amendment to the DA.

Contention 1 - Lot Size and Subdivision Character

30. The Respondent contended in relation to lot size and subdivision character that:

31. The proposed subdivision does not comply with the minimum lot size development standard in cl 4.1 of the LEP and is inconsistent with the pattern, size and configuration of lots in the locality;

32. The request made pursuant cl 4.6 of the LEP to vary the minimum lot size development standard prescribed by cl 4.1 of the LEP is not well founded for the following reasons:

(a) The request has not demonstrated that compliance with the minimum lot size development standard is unreasonable or unnecessary; (b) The request does not demonstrate that there are sufficient environmental planning grounds to justify the non-compliance; and (c) The development is not consistent with the objectives of cl 4.1 (the minimum lot size development standard) and the objectives of the R2 – Low Density Residential zone in the LEP.

3. The proposed development is inconsistent with the aims of the LEP as it will not protect and enhance the residential amenity of the locality;
4. The proposed development is not suitable for the site owing to the undersized nature of the lots; and
5. Approval of the proposed development would set an undesirable precedent for land subdivisions, noting the level of consistency in the character of the locality, represented within the street block bound by Toronto Avenue and Wabash Avenue, and more broadly, as being regular lots of approximately 1,000m2.

Contention 2 – Landscaped Open Space

31. The Respondent contended in relation to lot size and subdivision character that the proposed development does not comply with the minimum required landscaped open space under the Warringah Development Control Plan 2011 (the DCP); is insufficient to provide an appropriate landscape setting for the development on Lot 2; and is not in keeping with the predominant character of the area.

32. At the conciliation conference on 7 July 2025, the Respondent indicated that Contention 2 relating to the proposed landscaped open space had been resolved with the changes proposed in the further amended DA. This left the disagreement between the parties as to whether the proposed cl 4.6 variation should be upheld.

Consideration

Clause 4.6 Variation

33. The two expert Town Planners provided evidence in Court on whether the proposed cl 4.6 variation should be upheld, and written closing arguments from the two legal representatives were provided to assist the Court. A written amended cl 4.6 variation request was submitted by the Applicant (Exhibit C) to support the further amended DA. I draw on this material in my assessment of the proposed cl 4.6 variation.

34. The Respondent states that it is not in dispute that cl 4.1 of the LEP is a development standard capable of variation under cl 4.6 of the LEP. The disagreement between the parties is as to whether the variation should be upheld. The Respondent submits it should not.

35. Clause 4.6 of the LEP at the date of the lodgement of the DA is as follows:

4.6 Exceptions to development standards

(1) The objectives of this clause are as follows—

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant has demonstrated that—

(a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and

(b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

36. The Respondent submitted that generally in relation to a cl 4.6 variation request:

37. The principles attached to cl 4.6 variation applications are well established. Such an application must not be upheld unless the decision maker is satisfied of both elements of cl 4.6(3), that is, compliance is unreasonable and unnecessary, and also that there are sufficient environmental planning grounds to justify the contravention; and

38. A clause 4.6 variation is not an entitlement but a specific exception to a control which would otherwise be applied strictly. The Applicant must satisfy the decision maker, in this case the Court, that both limbs of the test are met.

Unreasonable or unnecessary compliance with the development standard

37. In respect of whether compliance with the standard is “unreasonable or unnecessary” the parties agree it is appropriate to apply the decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LBERA 256; [2018] NSWLEC 118 (Initial Action). The Respondent took the Court to Initial Action where, summarizing the earlier decision of Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe), Preston CJ identified, at [16] to [21], five common ways in which the requirement may be satisfied.

38. In Initial Action, the approach to determining a cl 4.6 request is outlined by Preston CJ at [5] – [29]. In particular, it is stated at [15] that:

“15 The first opinion of satisfaction, in cl 4.6(4)(a)(i), is that the applicant’s written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3). These matters are twofold: first, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and, secondly, that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). The written request needs to demonstrate both of these matters”.

39. Further, in Initial Action at [17] Preston CJ stated that “[t]he first and most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard: Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42] and [43]”.

40. It is noted that the provisions of cl 4.6 in the LEP have been amended since these judgments were made. However, the approach to determining a cl 4.6 request has not changed.

41. The Respondent submits that the Applicant in its written cl 4.6 variation application relies on the first of those ways, namely that the objectives of the development standard are met, notwithstanding non-compliance with the development standard.

42. The objectives of the development standard are those set out in cl 4.1 of the LEP. I agree with the Respondent’s submission that other objectives, such as objectives of the Zone, cl 4.6 or the EPA Act, are not engaged in respect of the “first way” of establishing compliance is unreasonable or unnecessary.

Clause 4.1 of the LEP

43. Clause 4.1 of the LEP relates to minimum subdivision lot size and provides the following objectives:

4.1 Minimum subdivision lot size

(1) The objectives of this clause are as follows—

(a) to protect residential character by providing for the subdivision of land that results in lots that are consistent with the pattern, size and configuration of existing lots in the locality,

(b) to promote a subdivision pattern that results in lots that are suitable for commercial and industrial development,

(c) to protect the integrity of land holding patterns in rural localities against fragmentation,

(d) to achieve low intensity of land use in localities of environmental significance,

(e) to provide for appropriate bush fire protection measures on land that has an interface to bushland,

(f) to protect and enhance existing remnant bushland,

(g) to retain and protect existing significant natural landscape features,

(h) to manage biodiversity,

(i) to provide for appropriate stormwater management and sewer infrastructure.

44. The Respondent submits that in this case, the objectives of the minimum subdivision lot size standard are not met due to the non-compliance with the standard. The Respondent contends that, in particular, the objective found at cl 4.1(1)(a) of the LEP is not met, because the proposal is not consistent with the pattern, size and configuration of existing lots in the locality.

45. The Applicant put forward the view in the cl 4.6 variation request that in terms of the character of the locality and the pattern, size and configuration of existing lots of the locality, the proposed subdivision would be in character with the subdivision pattern of other lots in the immediate area that have a rectangular shape and battle-axe configuration in order to achieve a developable building area for a future dwelling.

46. Further, the Applicant submitted in the cl 4.6 variation request that the proposed two lot subdivision would allow for the retention of the landscaped area, and the development of the sites to retain the existing dwelling and construct a new dwelling and a driveway in a manner that would not adversely affect the amenity of the subject properties or the neighbouring sites.

47. The Respondent referred to the evidence of Mr Tuor in the Joint Expert Report and as given in oral evidence to support this argument, in particular:

48. The proposed lots are at odds with the surrounding subdivision pattern, being significantly smaller. It is agreed that the proposed lots are respectively 441.5m2 (a variation of 26.4%) and 480.1m2 (a variation of 19.98%);

49. There are only about 5 lots “in the “locality” smaller than 600m2 - 27A and 27B Toronto Avenue, 41 Toronto Avenue, 47A Toronto Avenue and 78 Toronto Avenue, which it is agreed were all approved prior to the commencement of the LEP. Further, 78 Toronto Avenue is on the northern side of Toronto Avenue where the starting lots were larger and a battleaxe pattern is more common; and

50. Two other sites, 47A and 47B Toronto Avenue were the subject of a development consent granted in 2016. One of those lots is about 574m2, a variation of less than 5%, while the other actually exceeds 600m2, although that includes access handle.

51. The Respondent submitted that secondary dwellings and dual occupancies occupying lots of 600m2 or more are not the same “pattern size and configuration” as what is proposed here, which is a Torrens title subdivision of lots of well under 600m2 by around 20-25%, on which the form of any future dwelling is unknown.

52. I am in agreement with the Respondent that there is not yet an established and recent pattern of subdivision approvals of the original lots in the locality into sites of less than 600m2 in area, and that the objective found at cl 4.1(1)(a) of the LEP is not met, because the proposal is not consistent with the pattern, size and configuration of existing lots in the locality.

53. The Respondent also examined the fifth way (referred to above at [37]) identified by Preston CJ in Initial Action, stating that Preston CJ’s observations in respect of another way In Initial Action at [21] remain relevant, particularly the sentence emphasised below:

“21 A fifth way is to establish that the zoning of the particular land on which the development is proposed to be carried out was unreasonable or inappropriate so that the development standard, which was appropriate for that zoning, was also unreasonable or unnecessary as it applied to that land and that compliance with the standard in the circumstances of the case would also be unreasonable or unnecessary: Wehbe v Pittwater Council at [48]. However, this fifth way of establishing that compliance with the development standard is unreasonable or unnecessary is limited, as explained in Wehbe v Pittwater Council at [49]-[51]. The power under cl 4.6 to dispense with compliance with the development standard is not a general planning power to determine the appropriateness of the development standard for the zoning or to effect general planning changes as an alternative to the strategic planning powers in Part 3 of the EPA Act.” (Emphasis added)

51. The Respondent submitted that the requested cl 4.6 variation is at odds with this principle, stating that if the minimum subdivision size is to change at some point in the future, that should and would be part of an orderly strategic planning process, and should not be decided on an ad hoc basis to suit this particular proposal.

52. I agree with this view. Once subdivision is allowed to readily occur utilising cl 4.6 variations of the minimum lot size, I consider that this would set a precedent for significant redevelopment in the immediate area through subdivision of the many approximately 1000m2 lots in the neighbourhood. This outcome should be as a result of a strategic planning process which could examine the cumulative effects of any such increase in the density in the neighbourhood.

Sufficient Environmental Planning Grounds

53. The Respondent submitted that in considering the second element (identified at [35] above) at cl 4.6(3)(b), in Initial Action at [23]-[24], Preston CJ held:

“23 As to the second matter required by cl 4.6(3)(b), the grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]. The adjectival phrase “environmental planning” is not defined, but would refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act.

24 The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15].”

54. The Respondent noted that the references to a written request strictly relate to previous wording of c 4.6 but the principle remains the same: it is not sufficient for an Applicant to demonstrate the development has benefits. It must establish that the contravention of the development standard is justified, and justified on environmental planning grounds.

55. “Environmental planning grounds” can be construed more broadly than the objective of the control as per cl 4.6(3)(a). As Preston CJ noted in Initial Action, it may include objects of the EPA Act but is not limited to those and could also, for example, include objects of the R2 Zone. The Respondent submits that the Applicant relies heavily in this regard on the objects at s 1.3(c) and (d) of the EPA Act which are:

“1.3 Objects of Act (cf previous s 5)

…

(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,

(c) to promote the orderly and economic use and development of land,

(d) to promote the delivery and maintenance of affordable housing”

56. The environmental planning grounds relied upon by the Applicant in the cl 4.6 variation request emphasise that the two lots as proposed will allow for dwellings which will meet the need for providing additional housing, will not impact on the amenity of neighbours, will retain the existing dwelling, and will be consistent with the general pattern of subdivision in the area.

57. The Respondent submitted that both objectives (c) and (d) of s 1.3 of the EPA Act could also be met by other means, such as by erecting a secondary dwelling on the subject site, and that alternative would be much more reflective of the existing pattern of subdivision in the locality.

58. The Respondent submitted that the Applicant’s claim to meet objective (b) of s 1.3 of the EPA Act appears to be based on maintaining the existing building. That may be desirable in itself but it is a benefit of carrying out the particular development rather than a ground justifying the contravention of the standard.

59. The Respondent concluded that in those circumstances it is difficult to see how the Applicant establishes “sufficient environmental planning grounds” for the proposed contravention of the development standard.

60. I consider that the Applicant has not established that the environmental planning grounds advanced in the written request justify the contravention of the development standard. The arguments need to not simply promote the benefits of carrying out the development as a whole, as established in in Initial Action at [24].

Conclusion

61. The Respondent submitted that:

62. The purpose of cl 4.6, as expressed in its objectives, are to provide an appropriate degree of flexibility in applying certain development standards to particular development, in order to achieve better outcomes. It has not been established the contravention would lead to better outcomes or that it is appropriate in the circumstances;

63. The Applicant’s cl 4.6 variation application does not establish either that the contravention of the standard is unreasonable or unnecessary, or that there are sufficient environmental planning grounds to justify the significant contravention of the minimum subdivision lot size standard in cl 4.1; and

64. If the cl 4.6 variation is not upheld, the development application must be refused and the appeal dismissed.

65. Having considered the evidence and submissions made in this case I have concluded that the proposed development in the further amended DA will not achieve objective (a) of the minimum subdivision area standard (at cl 4.1(a) of the LEP) “to protect residential character by providing for the subdivision of land that results in lots that are consistent with the pattern, size and configuration of existing lots in the locality”.

66. I also find that there are not sufficient environmental planning grounds to justify the proposed contravention of the minimum subdivision lot size standard in cl 4.1 of the LEP.

67. For the above reasons the appeal is dismissed.

Orders

65. The Court orders:

66. The appeal is dismissed.

67. Development consent for development application DA2024/1418 as amended for Torrens title subdivision of one lot into two lots resulting in lot sizes of 441.5m² (excluding Right of Way) for Lot 1 and 480.1m² for Lot 2, demolition of the existing carport and driveway structures, construction of access driveway and associated right of way adjacent to western boundary, construction of double carport and hardstand area (Lot 2), and removal of three trees on the land at 37 Toronto Avenue, Cromer, 2099 is refused.

68. All Exhibits are returned, except for Exhibits A, B and C.

​​​​​​​G Kullen

Acting Commissioner of the Court

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