Jacie Pty Ltd v Northern Beaches Council

Texts Cited: Manly Development Control Plan 2013

Category: Principal judgment

Parties: Jacie Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation: Counsel:
M Staunton (Applicant)
J Simpson (Solicitor) (Respondent)
Solicitors:
Sattler & Associates (Applicant)
Northern Beaches Council (Respondent)

File Number(s): 2024/418143

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Northern Beaches Council (the Council) of DA 2024/0472 (the Development Application) for demolition of nominated structure, retention of the front parapet to Darley Road, and construction of three storey shop top housing building (the Proposed Development) over the following parcels of land, 24A, 26, 26A, and 28 Darley Road, Manly, NSW, being Lots 2, 3, 4, and 5 in DP 222572 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on site and at Council Chambers.

3. 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, and which addressed the Council’s contentions. This decision involved Council approving an application to amend the Applicant’s plans pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the Proposed Development as amended with conditions at Annexure A.

4. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) provided to the Court. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council’s Statement of Facts and Contentions.

Satisfaction as to Jurisdiction

5. Regarding jurisdiction and taking into account the parties’ advice in the Statement, I am satisfied in regard to the following relevant matters.

6. The DA was made by the owner as applicant, Jacie Pty Limited pursuant to s 23(1)(a) of the EPA Regulation.

7. The parties agree that the environmental planning instruments and development control plan listed at par (13) of the SOFAC apply to the Development as follows:

8. State Environmental Planning Policy (Biodiversity and Conservation) 2021;

9. State Environmental Planning Policy (Resilience and Hazards) 2021;

10. State Environmental Planning Policy (Sustainable Buildings) 2022;

11. State Environmental Planning Policy (Transport and Infrastructure) 2021;

12. Manly Local Environmental Plan 2013 (MLEP);

13. Manly Development Control Plan 2013 (MDCP).

14. The land is zoned R3 Medium Density Residential under the MLEP. Demolition and development for the purpose of shop top housing is permissible in the R3 zone. The development provides for a mix of both retail and apartment style accommodation and meets the objectives of the R3 zone.

15. The parties agree that the jurisdictional requirements of the above instruments and plan have been satisfied for the reasons set out in the Statement at pars (15)-(35) which the Court accepts.

16. That includes the written request made pursuant to cl 4.6 of the MLEP for a variation to cl 4.4 as to floor space ratio for the Site which was prepared by Boston Blyth Fleming Town Planning Consultants and dated 28 February 2025. The Court accepts the reasoning provided by the parties in the Statement at par (35) and the request is upheld.

Heritage Conservation

11. In relation to cl 5.10 of the MLEP, the Land is made up of four individual heritage items under Sch 5, Pt 1 of the MLEP, being in the same sequence as their listed street addresses – Nos I124, I125, I126 and I127.

12. The DA was accompanied by a Heritage Impact Assessment by Jennifer Hill, Architectural Projects Pty Ltd (version 4 dated 18 April 2024). The DA has since been fortified with a Heritage Conservation Schedule of Works prepared by Weir Phillips Heritage and Planning (ref J7217_01 dated December 2024).

13. The parties are satisfied, and the Court accepts, that the development is consistent with the requirements and objectives of cl 5.10 of MLEP and no jurisdictional impediment arises.

Public Consultation

14. The DA in its original form was advertised and notified to adjoining and nearby landowners in accordance with the Council’s Community Participation Plan from 22 May 2024 to 5 June 2024. The Council received six submissions that related to: insufficient information, solar access, parking, construction impacts, height, noise, access, and geotechnical issues.

15. The DA, as amended, was informally notified to persons who had objected to the DA on 24 March 2025, until 31 March 2025. A number of objectors addressed the Court on site and from the adjoining residential flat building.

16. The parties have considered the submissions received in reaching agreement to grant consent in the LEC Act, s 34 Agreement. The impacts raised in the objections have as far as reasonably possible been mitigated by conditions of consent in Annexure A.

17. I am satisfied that the objectors reasonable concerns were considered by the parties, and the objectors were accorded procedural fairness.

Conclusion

18. For these reasons, based on the evidence before me, and my observations on Site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

19. 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. 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.

Notations

20. The Court notes:

(a) The following terms of the decision are:

(i) Northern Beaches Council, as the relevant consent authority, has agreed, pursuant to s 38 of the EPA Regulation, to the Applicant amending Development Application DA 2024/0472 to rely upon the following amended plans and documents (Amended Application):

(1) The following amended architectural plans prepared by Platform Architects:

| Drawing No. | Drawing Title | Revision No. | Date | | A000 | Cover Sheet | S34-1 | 28.2.25 | | A0050 | Site Analysis | S34-1 | 28.2.25 | | A0100 | Site Plan | S34-1 | 28.2.25 | | A0400 | Demolition Plan | S34-3 | 28.2.25 | | A1001 | Ground Floor Plan | S34-4 | 18.3.25 | | A1002 | First Floor | S34-3 | 28.2.25 | | A1003 | Second Floor | S34-3 | 28.2.25 | | A1004 | Roof Plan | S34-2 | 28.2.25 | | A1005 | Driveway Plan and Section | S34-2 | 28.2.25 | | A2001 | South West Elevation | S34-2 | 28.2.25 | | A2002 | North West Elevation | S34-2 | 28.2.25 | | A2003 | South East Elevation | S34-3 | 28.2.25 | | A2004 | North East Elevation | S34-2 | 28.2.25 | | A2005 | North West Elevation Entry | S34-2 | 28.2.25 | | A3001 | Section A-A | S34-2 | 28.2.25 | | A3002 | Section B-B | S34-2 | 28.2.25 | | A3003 | Section C-C | S34-3 | 28.2.25 | | A3004 | Section D-D | S34-3 | 28.2.25 | | A4001 | Window Schedule 01 | S34-1 | 28.2.25 | | A4002 | Window Schedule 02 | S34-1 | 28.2.25 | | A4003 | Window Schedule 03 | S34-1 | 28.2.25 | | A1003 | External Finishes Schedule | 1 | 16.2.24 | | A1003 | External Finishes Schedule Revision 2 | 1 | 16.2.24 |

(2) The following documents:

1. Heritage Conservation Schedule of Works – Weir Phillips Heritage and Planning (ref. J7217_01) dated December 2024;
2. Amended Statement of Environmental Effects by Boston Blyth Fleming consultant planners dated 28.2.25;
3. Amended clause 4.6 FSR by Boston Blyth Fleming consultant planners dated 28.2.25; and
4. Amended Basix Certificate No. 1737965M_03 dated 9 April 2025.

(b) The Amended Application was filed with the Court on 8 April 2025. The Amended BASIX Certificate No. 1737965M_03 dated 9 April 2025 was filed with the Court on 10 April 2025. (c) The Applicant's written request pursuant to cl 4.6 of MLEP seeking a variation of cl 4.4 – Floor Space Ratio of MLEP prepared by Boston Blyth Fleming dated 28 February 2025 is upheld.

Orders

21. The Court orders:

22. The appeal is upheld.

23. Development consent is granted to development application No. DA 2024/0472 for demolition works and construction of shop top housing development including a swimming pool at 24A, 26, 26A and 28 Darley Road, Manly NSW, subject to the conditions in Annexure A.

24. The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed within 28 days.

L Byrne

Acting Commissioner of the Court

Annexure A (443 KB, pdf)

**********