Zarantonello v Northern Beaches Council

Texts Cited: Pittwater 21 Development Control Plan 2004

Category: Principal judgment

Parties: Selia Zarantonello (Applicant)
Northern Beaches Council (Respondent)

Representation: Counsel:
P Vergotis (Solicitor) (Applicant)
F Berglund (Respondent)
Solicitors:
Madison Marcus Law Firm (Applicant)
Northern Beaches Council (Respondent)

File Number(s): 2025/188162

Publication restriction: Nil

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicant against the respondent’s refusal of the applicant’s development application No. DA2024/1165 (Development Application) for the construction of a dwelling house including a swimming pool on land identified as Lot 6 in Deposited Plan 27991, known as 31 Alexandra Crescent, Bayview (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 Development Application

3. The Development Application was lodged with the respondent on 27 August 2024.

4. The Development Application was notified for a period of 14 days from 6 to 20 September 2024. Five submissions were received objecting to the proposal.

5. On 27 November 2024, the Development Application was referred to the Northern Beaches Council Development Determination Panel (DDP) for determination and the application was determined by way of refusal.

6. The Notice of Determination was issued by the respondent on 2 December 2024.

7. On 16 May 2025, the proceedings were commenced, being within the appeal period prescribed by s 8.10 of the EPA Act.

8. The Court arranged a conciliation conference under s 34AA(2)(a) of the LEC Act between the parties, which was held on 9 and 10 October 2025. I presided over the conciliation conference.

9. Amended plans and documents were provided to the Court as part of the conciliation process (Amended Development Application) cited at [37(1)]. The amendments can be summarised as follows:

10. increased landscaping area that complies with the requirements in cl D4.10 of the Pittwater 21 Development Control Plan (PDCP);

11. a decrease in excavation;

12. the inclusion of the demolition of the existing dwelling and a corresponding demolition plan; and

13. removal of neighbouring land from the proposal.

14. During the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

15. 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.

Jurisdictional considerations

12. 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 s34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owner’s consent

13. The Amended Development Application was submitted by the applicant, being the registered proprietor of the Subject Land. I accept the agreement of the parties that the Amended Development Application now only proposes works on the Subject Land.

Biodiversity Conservation Act 2016 and Biodiversity Conservation Regulation 2017

14. The Subject Land is mapped on the Biodiversity Values Map published under cl 7.3 of the Biodiversity Conservation Regulation 2017 (BC Regulation).

15. As part of the Subject land is included in this mapping, the clearing of native vegetation on the Subject Land is declared to exceed the threshold under cl 7.1(1)(b) of the BC Regulation. Part 7 of the Biodiversity Conservation Act 2016 (BC Act) is therefore enlivened which requires the proposal to be accompanied by a Biodiversity Development Assessment Report (BDAR).

16. A BDAR prepared by Enviro Ecology dated 2 May 2025 forms part of the Amended Development Application under s 7.7(2) of the BC Act. The BDAR:

17. Was prepared by a suitably accredited person for the purposes of the BC Act who has certified that the report has been prepared on the basis of the requirements of (and information provided under) the biodiversity assessment method as at 5 May 2025 (being the date the BDAR was prepared) as required by s 6.15 of the BC Act. For completeness I also note that Enviro Ecology has provided an addendum letter dated 9 October 2025 confirming that the findings and conclusions in the BDAR are unchanged as a result of the Amended Development Application.

18. Sets out in Table 10 the measures that the proponent of the proposed development proposes to take to avoid or minimise, and mitigate, respectively, the impacts of the proposed development on biodiversity values as required by s 6.12(c) of the BC Act (see also conditions 1, 15, 18, 37 and 46 of the Agreed Conditions).

19. Concludes that no biodiversity credits are required to offset any residential impacts of the proposed development.

State Environment Planning Policy (Sustainable Buildings) 2022

17. The Amended Development Application is accompanied by a BASIX certificate (Cert No. 1755899S_02 dated 7 March 2025) in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 and the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

State Environmental Planning Policy (Resilience and Hazards) 2021

18. I accept the parties’ submission that the requirements of the State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and the Subject Land is suitable to accommodate the development that is the subject of the Amended Development Application. This is primarily because of the Subject Land’s longstanding history of residential use with no known history of potentially contaminating uses or events.

State Environmental Planning Policy (Transport and Infrastructure) 2021

19. The parties agree that s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) relating to development likely to affect an electricity transmission or distribution network, applies to the proposed development.

20. The Development Application was referred to Ausgrid in accordance with s 2.48(2) of the TI SEPP and Ausgrid provided recommended conditions of consent via letter dated 4 September 2024. Ausgrid’s recommended conditions have been included at condition 2 of the Agreed Conditions.

Pittwater Local Environmental Plan 2014

21. The Site is zoned C4 Environmental Living under the Pittwater Local Environmental Plan 2014 (PLEP). Accordingly, dwelling houses, swimming pools and demolition works are permitted with consent in the C4 zone. I have had regard to the zone objectives which are extracted below:

• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

• To ensure that residential development does not have an adverse effect on those values.

• To provide for residential development of a low density and scale integrated with the landform and landscape.

• To encourage development that retains and enhances riparian and foreshore vegetation and wildlife corridors.

22. The parties agree that the Amended Development Application is consistent with the C4 zone objectives.

23. The parties agree and I accept that the Amended Development Application complies with the 8.5m height standard under cl 4.3 of the PLEP.

24. For the purposes of cl 7.1 of the PLEP regarding acid sulfate soils, the parties agree, and I accept, that the Subject Land is mapped as Class 5 land and is unlikely to lower the water table below 1 m on adjacent 1, 2, 3 or 4 land. The requirements in cl 7.1 of the PLEP are therefore not enlivened.

25. Pursuant to cl 7.2 of the PLEP regarding earthworks, a consent authority must consider the matters specified in cl 7.2(3) in deciding whether to grant development consent. The Amended Development Application includes:

26. a Geotechnical Investigation prepared by White Geotechnical Group dated 28 February 2025;

27. “Geotechnical Comments in regards to new plans” letter prepared by White Geotechnical Group dated 10 October 2025; and

28. Waste Management Plan dated September 2025, (collectively, Geotechnical Documents).

29. In determining the Amended Development Application, I confirm that I have considered the matters set out in cl 7.2(3) of the PLEP having regard to the Geotechnical Documents and Agreed Conditions.

30. Pursuant to cl 7.6 of the PLEP regarding biodiversity, before determining a development application for development on land to which this clause applies the consent authority must consider the matters listed in cl 7.6(3) and be satisfied of the matters listed in cl 7.6(4). Having regard to the BDAR and Agreed Conditions, I confirm that I have considered the matters listed in cl 7.6(3) and am satisfied of the matters listed in cl 7.6(4) of the PLEP.

31. Pursuant to cl 7.7 of the PLEP regarding geotechnical hazards, before determining a development application for development on land to which this clause applies, the consent authority must consider the matters listed in cl 7.7(3) and be satisfied of the matters listed in cl 7.7(4). Having regard to the Geotechnical Documents, I confirm that I have considered the matters listed in cl 7.7(3) and am satisfied of the matters listed in cl 7.7(4) of the PLEP.

32. Pursuant to cl 7.10 of the PLEP regarding essential services, the parties agree, and I accept, that all services that are essential for the proposed development are available to the Subject Land.

Pittwater 21 Development Control Plan

30. Relevant provisions of the PDCP have been considered in both the Statement of Environmental Effects prepared by Cohesive Planning dated October 2024 (SEE) (see pp 30-47) and various joint expert reports filed in these proceedings. The parties agree that the Amended Development Application is capable of being approved having regard to the relevant provisions of the PDCP.

Remaining matters under s 4.15(1) of the EPA Act

31. The parties agree that the Amended Development Application can be approved taking into consideration the matters listed in s 4.15(1)(b)-(e) of the EPA Act. Matters relevant to subsections (b), (c) and (e) are considered generally in the SEE (see pp 19-28).

32. In relation to s 4.15(1)(d), the Development Application as lodged was notified between 6 to 20 September 2024. Five submissions were received during the notification period. The matters raised in the submissions primarily related to concerns regarding:

33. the proposal being out of keeping with the low impact residential requirements in the C4 zone and Pittwater area;

34. potential view impacts;

35. overall size and scale of the development;

36. overshadowing to adjoining sites;

37. a design which does not reflect the coastal heritage and character of the area;

38. the proposed white colours of the dwelling house;

39. geotechnical risks during construction and following include potential land slippage and run off;

40. removal of several mature native trees;

41. non-compliance with landscaping controls;

42. non-compliance with height controls; and

43. extent of excavation.

44. Two of the objectors addressed the Court at the on-site view associated with the conciliation conference.

45. I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

Conclusion

35. 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.

36. 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.

37. The Court notes that:

38. The respondent, as the relevant consent authority, for the purpose of s 38 of the EPA Regulation, approves the applicant amending Development Application No. DA 2024/1165 in accordance with the following plans and documentation:

| Approved Plans | | Plan Number | Revision Number | Plan Title | Drawn By | Date of Plan | | DA02 | Rev D | Area Calculations | Progressive Plans | 10 October 2025 | | DA04 | Rev D | Site - Waste – Sediment Plan | Progressive Plans | 10 October 2025 | | DA05 | Rev D | Site Cut and Fill Plan | Progressive Plans | 10 October 2025 | | DA06 | Rev D | Demolition Plan – Lower Ground Floor | Progressive Plans | 10 October 2025 | | DA07 | Rev D | Proposed Plan - Lower Ground Floor | Progressive Plans | 10 October 2025 | | DA08 | Rev D | Demolition Plan – Ground Floor | Progressive Plans | 10 October 2025 | | DA09 | Rev D | Proposed Plan - Ground Floor | Progressive Plans | 10 October 2025 | | DA10 | Rev D | Demolition Plan – First Floor | | | | DA11 | Rev D | Proposed Plan - First Floor | Progressive Plans | 10 October 2025 | | DA12 | Rev D | Demolition Plan – Roof | Progressive Plans | 10 October 2025 | | DA13 | Rev D | Proposed Roof / Concept Stormwater Plan | Progressive Plans | 10 October 2025 | | DA14 | Rev D | Elevations – North | Progressive Plans | 10 October 2025 | | DA15 | Rev D | Elevations – South | Progressive Plans | 10 October 2025 | | DA16 | Rev D | Elevations – East | Progressive Plans | 10 October 2025 | | DA17 | Rev D | Elevations – West | Progressive Plans | 10 October 2025 | | DA18 | Rev D | Sections – A | Progressive Plans | 10 October 2025 | | DA19 | Rev D | Sections – B | Progressive Plans | 10 October 2025 | | DA20 | Rev D | Sections C & D | Progressive Plans | 10 October 2025 | | DA21 | Rev D | Section – F | Progressive Plans | 10 October 2025 | | DA22 | Rev D | Pool Plan & Section | Progressive Plans | 10 October 2025 | | DA25 | Rev D | Finishes Board | Progressive Plans | 10 October 2025 |

| Approved Reports and Documentation | | | Document Title | Version Number | Prepared By | Date of Document | | LP01, Landscape Plan – Lower Ground | Rev E | Edwina Stuart Landscape Plan | 9 October 2025 | | LP02, Landscape Plan, Ground | Rev E | Edwina Stuart Landscape Plan | 9 October 2025 | | LP03, Landscape Plan – Level 1 | Rev E | Edwina Stuart Landscape Plan | 9 October 2025 | | DWG No. C24092-01, Drainage Plan | Rev C | CAM Consulting – Structural & Civil Engineers | 7 March 2024 | | DWG No. C24092-02, Basement Drainage Plan | Rev C | CAM Consulting – Structural & Civil Engineers | 7 March 2024 | | DWG No. C24092 – 03, Ground Floor Drainage Plan | Rev C | CAM Consulting – Structural & Civil Engineers | 7 March 2024 | | DWG No. C24092 – 04, Roof Drainage Plan | Rev C | CAM Consulting – Structural & Civil Engineers | 7 March 2024 | | DWG No. C24092 – 05, Erosion and Sediment Control Plan | Rev C | CAM Consulting – Structural & Civil Engineers | 7 March 2024 | | Waste Management Plan | - | No Author | September 2025 | | Arboricultural Impact Statement for nine trees associated with 31 Alexandra Crescent, Bayview, New South Wales | - | Advanced Arborist Reporting | 6 March 2025 | | Streamline Biodiversity Development Assessment Report (Rev. 42020152_BDAR_V1.0) | Version 3.0 | Enviro Ecology | 2 May 2025 | | 31 Alexandra Crescent, Bayview – Review of Amended Architectural Plans (REV C – 9.10.25) | - | Enviro Ecology | 9 October 2025 | | BASIX Certificate (No. 1755899S_02) | - | CHAPMAN ENVIRONMENTAL SERVICES PTY LTD | 07 March 2025 | | NatHERS (Certificate No. 0009632274-01) | - | Karisma Group | 7 March 2025 | | Geotechnical Investigations (Ref. J5550A) | - | White Geotechnical Group | 28 February 2025 | | 31 Alexandra Crescent, Bayview Ref. J5550B | - | White Geotechnical Group | 10 October 2025 |

2. The above documents were provided to the Court on 10 October 2025.

Orders

38. The Court orders that:

39. The appeal is upheld.

40. Development Application No. 2024/1165, as amended, for the demolition of existing structures, the construction of a new residence with associated garaging, swimming pool and associated civil works and landscaping at Lot 6 in Deposited Plan 27991, known as 31 Alexandra Crescent, Bayview 2104, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

N Targett

Commissioner of the Court

Annexure A (456 KB, pdf)

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