34-35 South Steyne Pty Limited v Northern Beaches Council

Representation: Counsel:
M Staunton (Applicant)
C Gough (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Northern Beaches Council (Respondent)

File Number(s): 2025/224679

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of Modification Application No. Mod2025/0181 (the application) to modify Development Consent No. DA2022/1164 for the demolition and construction of a 3-4 storey commercial building over 2 basement levels (the consent), at 34-35 South Steyne, Manly (Lot B in DP 102407) (the site), by Northern Beaches Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 17 February 2026. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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.

3. The parties' decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the consent. There are preconditions to the exercise of power to modify the consent.

Background

4. On 18 December 2023, Development Consent No. DA2022/1164 was granted by the Northern Beaches Local Planning Panel for the demolition and construction of a commercial building at the site (the original consent).

5. The original consent has been subsequently modified on the following occasions:

6. On 7 August 2024, the original consent was modified following the Respondent's approval of Modification Application No. MOD2024/0225 for minor internal and rooftop modifications.

7. On 5 March 2025, the consent was further modified following the Respondent's approval of Modification Application MOD2024/0419 for internal and external changes, including infilling the approved lightwell, and the addition of solar panels.

Amended application

6. The application as lodged sought to:

7. increase the size and layout of the Level 3 floorplate; and

8. delete the reference to the previously proposed façade washing system on the eastern building façade.

9. The parties reached agreement to resolve the proceedings on the basis of the following amendments to the application:

10. reduction in the extent of the approved upper-level building splay and consequential changes to internal layout;

11. introduction of a small roof terrace in the north-western corner of the upper-level floor plate;

12. consequential façade changes, including external lighting changes, flowing from the revised upper-level form/terrace;

13. relocation of the PV (solar) panels and reconfiguration of rooftop plant to minimise view and visual impacts on apartments at Levels 5-7, 25 Wentworth Street Manly;

14. alter the geometry of the servery on the ground floor of the western façade including consequential alterations to the side corridor and gradients; and

15. add lighting to wash the western façade.

16. The Council, as the consent authority, consented to the amendment of the application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW), to include the following documents:

(A) A-DA-110-003 – GA Plans _ Ground Plan (Rev DA-M) dated 16 January 2026

(B) A-DA-110-006 – GA Plans _ Level 3 Plan (Rev DA-M) dated 16 January 2026

(C) A-DA-110-007 – GA Plans _ Roof Plan (Rev DA-M) dated 16 January 2026

(D) A-DA-210-001 – GA Elevation _ North & South Elevations (Rev DA-M) dated 16 January 2026

(E) A-DA-210-002 – GA Elevation _ East & West Elevation (Rev DA-M) dated 16 January 2026

(F) A-DA-310-001 – GA Sections _ Section AA, BB & EE (Rev DA-M) dated 16 January 2026

(G) A-DA-310-002 – GA Sections _ Section CC (Rev DA-M) dated 16 January 2026

(H) A-DA-310-003 – GA Sections _ Section DD (Rev DA-M) dated 16 January 2026

(I) A-DA-830-001 – Lighting _ Western Façade Lighting (Rev DA-M) dated 16 January 2026

Jurisdictional framework

9. Section 4.55(2)(a) of the EPA Act requires the Court, exercising the functions of the consent authority, to be satisfied that the consent, as modified, is substantially the same development as the development for which consent was originally granted. The major changes proposed under the application, when compared to the original consent, are as follows:

10. a reduction in the extent of the approved upper-level building splay, resulting in a recessed upper-level built form;

11. the introduction of a small roof terrace in the north-western corner of the upper-level floor plate;

12. consequential changes to the external building facades and lighting, location of roof top plant and PV panels, internal reconfiguration arising from the revised upper-level form and roof terrace; and

13. alteration to the geometry of the ground floor servery on the western façade and introduction of lighting to wash the western façade.

14. I am satisfied that the application, in terms of a qualitative and quantitative assessment, does not alter the fundamental elements of the original consent, because the use, general form and articulation of the subject development in the original consent are the same, or substantially the same.

15. Pursuant to s 4.55(2)(b) of the EPA Act, the original consent was integrated development as it required a water use approval and approval for water supply works under ss 89 and 90 of the Water Management Act 2000 (NSW) (WM Act). WaterNSW issued general terms of approval (GTAs) for the original consent. The development also required consultation with Ausgrid under s 2.48 of State Environmental Planning Policy (Transport & Infrastructure) 2021. Ausgrid provided advice in accordance with s.2.48. Condition 2 was imposed on the original consent requiring compliance with the WaterNSW GTAs and the advice from Ausgrid. This application was referred to Ausgrid. This application was not referred to WaterNSW as approvals had already been issued under s 95 of the WM Act for water use and water supply works which have been undertaken. The approvals from WaterNSW relate to the dewatering of the basement and are not affected by the proposal. The application does not seek to modify condition 2 of the original consent. To the extent that s 4.55(2)(b) of the EPA Act requires consultation with WaterNSW, the Court has power to approve the modification application under s 8.14(3)(a) of the EPA Act where that consultation has not taken place. I accept the parties’ submission that it is appropriate to exercise that power in circumstances where WaterNSW has issued the approvals proposed in the GTAs and the proposed modifications do not affect the operation of those approvals.

16. The application was notified in accordance with the requirements of s 4.55(2)(c) of the EPA Act. The Court, in the company of the parties, viewed the site from external terraces on two upper levels of a nearby residential flat building at 17-23 Wentworth Street, Manly, and heard from the resident objectors of those apartments. They are concerned that the future occupants of the commercial building, when using the proposed Level 3 roof terrace on the western corner of the site, will impact on their amenity. The Council proposed the following conditions be imposed on the modified consent to protect the amenity of the nearby residential properties:

17. Lighting on the western façade to be installed in accordance with Australian Standard 4282-1977 and limit illumination to 7am to 10pm daily (condition 68).

18. restrict the hours of use of the roof terrace (condition 69).

19. The site is zoned E1 Local Centre pursuant to the Manly Local Environmental Plan 2013 (LEP 2013). The objectives of the zone, to which regard must be had, are:

• To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area.

• To encourage investment in local commercial development that generates employment opportunities and economic growth.

• To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area.

• To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

• To minimise conflict between land uses in the zone and adjoining zones and ensure amenity for the people who live in the local centre in relation to noise, odour, delivery of materials and use of machinery.

• To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

• To create urban form that relates favourably in scale and in architectural and landscape treatment to neighbouring land uses and to the natural environment.

Conclusion

14. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 17 February 2026 and I am satisfied, on the basis of the evidence before me, that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

15. The orders of the Court are:

16. The appeal is upheld.

17. Development Consent No. DA2022/1164 for the demolition of existing structures and construction of a commercial building, at 34-35 South Steyne, Manly, is modified in the terms set out in Annexure A.

18. Development Consent No. DA2022/1164, as modified by the Court, is at Annexure B.

Susan O’Neill

Commissioner of the Court

Annexure A (167 KB, pdf)

Annexure B (369 KB, pdf)

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