The Court exercised its power under s 39(2) of the LEC Act to grant owner's consent on behalf of Council for DA works within the Barrenjoey Road reservation, finding that Council's nine grounds of opposition — including concerns about permanent private structures on public land, potential lease requirements under s 149 of the Roads Act, and precedent effects — did not justify withholding consent, particularly where Council's own Road Asset team had indicated the proposed 'landscaped lid' was acceptable in concept. On the merits, the Court found that significant excavation (approximately 2,200 m³) on the steep site was acceptable given comparable approved developments in the locality and compliance with geotechnical risk management requirements, and that plan inconsistencies between construction management documents and architectural drawings regarding excavation extent were manageable through additional consent conditions rather than constituting grounds for refusal. The Court declined to make findings on the applicant's late submission that the proposal constituted integrated development under s 4.46 of the EPA Act, noting that the cited authority (Roads & Traffic Authority v Muir Properties) did not clearly support the argument that TfNSW concurrence requirements displaced the s 4.46(3) exclusion.
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