Council Appeal on Oxford Falls Seniors DA Successful: Errors on Questions of Law Grounds
The Court orders:
(1) The appeal is upheld.
(2) The decision and orders of Senior Commissioner Dixon of 21 July 2025 are set aside.
(3) The proceedings are remitted to Senior Commissioner Dixon to be determined according to law and these reasons for judgment.
(4) The respondent is to pay the appellant’s costs of the appeal.
This case involved a Class 1 appeal against Council’s refusal of a DA for a senior’s living development. The site and surrounding privately owned bushland were mapped Category 1 Bushfire prone land. Accordingly, the DA proposed clearing of vegetation to establish an asset protection zone (APZ), which triggered the assessment of biodiversity impacts under the Biodiversity Conservation Act 2016 (BC Act).
Council contended in the appeal that the ’expansive area of tree removal’ proposed by the development was not consistent with the desired future character of the area under the provisions of the Warringah Local Environmental Plan 2000 (WLEP 2000). In particular, it was submitted that the following provisions of the WLEP 2000 precluded the grant of development consent:
Clause 56 (Retaining distinctive environmental features on sites), which provided that ’development is to be designed to retain and complement any distinctive environmental features of its site and on adjoining and nearby land’, and
Clause 58 (Protection of existing flora), which provided that ’development is to be sited and designed to minimise the impact on remnant indigenous flora, including canopy trees and understorey vegetation - and on remnant native ground cover species.
The Council further argued that the proposal was contrary to cl 12(3)(b) of the WLEP 2000 which required the consent authority to be satisfied that the development was consistent with the B2 Oxford Falls Valley Locality Desired Future Character Statement (Statement). The Statement required the following (among other things):
‘Future development will be limited to new detached style housing confirming with the housing density standards set out below and low intensity, low impact uses’, and
‘Buildings will be located and grouped in areas that will minimise disturbance of vegetation’.
The Applicant argued that the analysis of biodiversity impacts was the exclusive domain of Part 7 of the BC Act and prevailed over any inconsistent provisions in the Environmental Planning & Assessment Act 1979 (EPA Act) and any instrument made under that Act including the WLEP 2000. It argued clauses 56 and 58 of the WLEP 2000 were design principles only and did not require avoiding impacts on biodiversity.
Senior Commissioner Dixon accepted the Applicant’s argument, finding that there was inconsistency between the WLEP 2000 provisions and the BC Act, and that the provisions of Part 7 of the BC Act prevailed.
The Senior Commissioner held that the WELP provisions were inconsistent on the basis the Biodiversity Assessment Method (BAM) is based on a ‘no net loss’ standard whereas the provisions of the WLEP 2000 sought to require improvements in biodiversity. To that extent, they contradicted the BC Act by setting a higher bar to approval than the standard adopted in the BAM.
The Court held it was bound to apply the Applicant’s Biodiversity Assessment Report (BDAR) to its assessment of the biodiversity impacts and the BDAR demonstrated that the ecological impact of the proposed development was low (including that no threatened species would be impacted by the clearing required for the APZ).
The appeal was upheld and development consent was granted for the senior’s living development.
Vigor Master Pty Ltd v Northern Beaches Council [2025] NSWLEC 1520 by Dixon SC (21 July 2025). Read the full decision here.
Council's appeal against the decision, was heard on November 18. The appeal under s 56A(1) of the Land and Environment Court Act 1979 (NSW) is limited to errors on questions of law.
The Northern Beaches Council raised six grounds of appeal in the summons commencing the appeal. The grounds all allege the misconstruction of the provisions of the Biodiversity Conservation Act 2016 (NSW) (BC Act) (particularly, s 7.5 and s 7.13), the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) (particularly, s 1.7 and s 4.15) and Warringah Local Environmental Plan 2000 (WLEP) (particularly, cl 12, cl 56 and cl 58 and the relevant Locality Statement for Locality B2 Oxford Falls Valley). The Commissioner found that the provisions of the BC Act, by the operation of s 7.5(1), “oust the operation of s 4.15 EPA Act and consequently the WLEP 2000 provisions related to the same subject matter”: at [68]. In particular, the Commissioner found that “the assessment of biodiversity impacts under Part 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.”: at [52]. The Council contends such findings involve misconstruction of the relevant statutory provisions.
The Council contended that the Commissioner’s misconstruction of the statutory provisions caused her consideration and application of the provisions of WLEP in the determination of the development application to miscarry. The Commissioner thereby failed to take into consideration, as required by s 4.15(1) of the EPA Act, the matters of relevance to the development the subject of the development application. The misconstruction of the relevant statutory provisions was material and vitiates the Commissioner’s decision to grant development consent.
The Honourable Justice Brian John Preston AO FRSN SC, stated in his judgment
I uphold the Council’s appeal. The Commissioner did misconstrue the relevant statutory provisions of the BC Act, EPA Act and WLEP. This misconstruction was material and vitiated the Commissioner’s decision to grant development consent to the seniors living development. The decision should be set aside and the matter remitted to the Commissioner to be redetermined according to law. A case for an exclusionary remitter has not been made out.
The Honourable Justice Brian John Preston AO FRSN SC found that the consideration of the description of the desired future character in the Locality Statement for B2 Oxford Falls Valley, required by cl 12(3) of WLEP, was for the purposes of determining whether the Commissioner was satisfied that the development is consistent with that desired future character. The Commissioner did not undertake that consideration or form the requisite opinion of satisfaction before granting development consent. Secondly, the Commissioner’s consideration was infected by her conclusion that cl 12(3) of WLEP and the relevant Locality Statement have no operative effect.
Northern Beaches Council v Vigor Master Pty Ltd [2025] NSWLEC 136 (November 27 2025). Read the full decision here.
The amended development application comprises:
- Construction of a seniors living development comprising 22 independent living units (“ILU”) across 3 buildings, constructed above a single basement. This will include 28 car parking spaces.
- A community centre building to serve the residential ILU complex includes a pool, gym, theatre, meeting room/library, and kitchen/lounge/dining room. Two visitor parking spaces and garbage collection facilities are also included to service the centre.
- Lots 807, 810 and 811 in DP752038 will now be consolidated as a single lot for the whole site area (8.65 Hectares), accommodating the proposed development together with the previously approved boarding house on Lot 811. The prior approvals for a dwelling and boarding house on Lot 810 will become redundant as these are within the building footprint of the proposed ILU’s. Remnant bushland outside the construction areas and the APZ will be retained and appropriately managed as a natural bushland setting ‘backdrop’ for the structures and other improvements on the site.
- Bushfire protection clearing work and fire protection road upgrade.
- Site preparation, excavation and fill works.
- Driveway connections, ancillary site works, service connections, including retaining walls and earthworks.
- Stormwater infrastructure, including construction of on-site detention.
- Tree removal.
- Fencing and landscaping works.
- Public footpath and ancillary works along the Willandra Road frontage (subject to future ‘Section 138’ Roads Transport Act 2013 (NSW) approval).
The site is identified as being located within the B2 Oxford Falls Valley locality under WLEP 2000; and classified as bushfire-prone and riparian land containing threatened species and having Aboriginal heritage significance. It is of irregular shape with an angled frontage which allows vehicular access from Willandra Road. The total area of 86,510m² is comprised of three allotments with a maximum depth along the northern boundary of 334.21 m; and a combined width along its western boundary of 374.59 m.
The topography is varied and slopes steeply from the western boundaries toward the middle of the site, including a series of rock shelves, before flattening out toward the eastern boundary. Notwithstanding its description as a “vacant” site, some preliminary work has been commenced under earlier approvals, which includes: a concrete driveway entry point, some tree removal, excavation works, and a reshaping of landform.
The land to the east of the site is predominantly low-density residential development approved under Warringah Local Environmental Plan 2011 (WLEP 2011), in which it is noted that the Oxford Falls Valley is a “deferred matter”.
Dense bushland adjoins the site’s western boundary at 70a Willandra Road and, to the north, where residential occupancy at 78 Willandra Road is recorded.
A retirement home complex, Willandra Village, sits to the east along Willandra Road. Located south of the site at 8 Lady Penryn Drive is the Marston aged persons development comprising 34 ILUs together with a community centre. A further development, 110 m south of the site, has been approved for similar ILUs accommodation; and, nearby, about 230 m from the site, stands Willandra Bungalows.
A Rural Fire Service building on a narrow reserve adjoins Lots 801 and 807.
As the site and the surrounding privately owned bushland is designated as Category 1 Bushfire Prone Land, the development incorporates the clearing of vegetation to accommodate an Asset Protection Zone (APZ) around the built form. The proposed clearing triggered an assessment of the biodiversity impacts of the development under the Biodiversity Conservation Act 2016 (NSW) (BC Act), and the proponents Biodiversity Development Assessment Report (BDAR) assessed the need for the retirement of credits for development consent to be granted: s 7.12(2) of the BC Act.
The weight (if any) to be placed on any provision outside the BDAR –particularly cll 56 and 58 of the Warringah Local Environmental Plan 2000 (WLEP 2000), and the character statement for the site, said to be inconsistent with the BC Act, was a central issue in the proceedings.
Numerous community groups and residents objected to the proposal, including the Garigal Landcare Group, Save Manly Dam Catchment Committee.
Objectors main contentions were:
- The location is in the sensitive Wheeler Creek Catchment and it will affect the drainage lines, run off patterns and forward siltation, nutrients and weeds into lower lying bushland areas and Narrabeen lagoon
- Water flows will be intensified as the natural sponge function of the bush is removed and instead hard surfaces, without the ability to hold water, will propel the water downstream.
- The proposal is not consistent with the desired future character (DFC) for Oxford Falls Valley, B2 Locality, relevant General Principles or Schedule 5 in WLEP2000
- The development is not of low intensity and its use would highly impact on the surrounding bushland.
- Even with adjusting the APZ the location remains bushfire prone and is not suitable for seniors housing.
Eight (8) threatened fauna species have been detected on the site. These include the following entities:
- Powerful Owl (Ninox strenua),
- Glossy Black-Cockatoo (Calyptorhynchus lathami),
- Rosenberg’s Goanna (Varanus rosenbergi),
- Red-crowned Toadlet (Pseudophryne australis),
- Giant Burrowing Frog (Heleioporus australiacus),
- Large Bent-winged Bat (Miniopterus orianae oceanensis),
- Little Bent-winged Bat (Miniopterus australis),
- Grey-headed Flying-fox (Pteropus poliocephalus)
Other threatened with extinction species likely to be living here are Genoplesium baueri, Deyeuxia appressa, Eastern Pygmypossum (Cercatetus nanus), Large-eared Pied Bat (Chalinolobus dwyeri), Eastern Cave Bat (Vespadelus troughtoni) and Squirrel Glider (Petaurus norfolcensis), along with wallabies, possums and other nocturnal bird species.
The 2022 Development Proposal would have impacted on 3.16 ha of native vegetation. The updated June 2023 Development Proposal (DA2023/1932) had an adjusted asset protection zone (APZ) of 2.14 ha of native vegetation being destroyed.