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[2026] NSWLEC 1143
General information, not legal advice.
Land and Environment Court (NSW)
2026-03-20
Targett C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Manly Land 101 Pty Ltd v Northern Beaches Council [2026] NSWLEC 1143
Hearing dates: Conciliation Conference 13 March 2026
Date of orders: 20 March 2026
Decision date: 20 March 2026
Jurisdiction: Class 1
Before: Targett C
Decision: The Court orders that:
(1) The appeal is upheld.
(2) The applicant is to pay the respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as agreed or assessed.
(3) Development Consent is granted to DA2025/0022 (as amended) for the demolition of existing structures and construction of a five-storey residential flat building containing seven apartments over basement parking, at 101 North Steyne, Manly, subject to the conditions in Annexure A.
Catchwords: APPEAL – Development application - conciliation conference – agreement between the parties - orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.46, 4.47, 8.7, 8.10, 8.11
Land and Environment Court Act 1979 (NSW), ss 17, 34
Water Management Act 2000 (NSW), s 90
Environmental Planning and Assessment Regulation 2021 (NSW), ss 29, 38
Manly Local Environmental Plan 2013, cll 4.3, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2, 6.4, 6.9, 6.12
State Environmental Planning Policy (Housing) 2021, Ch 4, ss 144, 145, 147, Sch 9
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.11, 2.12, 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48
Texts Cited: Manly Development Control Plan 2013
Category: Principal judgment
Parties: Manly Land 101 Pty Ltd (Applicant)
Northern Beaches Council (Respondent)
Representation: Counsel:
G Hugo (Solicitor) (Applicant)
M Domingo (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Northern Beaches Council (Respondent)
File Number(s): 2025/210459
Publication restriction: Nil
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 deemed refusal of the applicant’s development application No DA2025/0022 (Development Application). The Development Application sought consent for the demolition of existing structures and construction of a five-storey residential flat building over a single level basement on land identified as Lot CP in Strata Plan 4518, known as 101 North Steyne, Manly (Subject Land).
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 was lodged with the respondent on 13 January 2025.
The Development Application was publicly notified between 17 February and 17 March 2025. Six submissions were received objecting to the proposed development.
On 2 June 2025, the proceedings were commenced in relation to the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.
The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was terminated on 2 December 2025. The matter was then set down for hearing on 23 and 24 April 2026.
Prior to the hearing, the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties and requested a further s 34 conference. A signed s 34 agreement was provided to the Court on 9 March 2026 following the applicant agreeing to amend the Development Application (Amended Development Application). The signed s 34 agreement is supported by an agreed jurisdictional statement. The agreed amendments to the Development Application relevantly include:
amending the appearance of the front of the building and balconies;
amending the basement design to provide an additional level of basement and removing stacker;
reducing the size of the upper level;
providing additional setback of the balcony at the upper level;
providing additional planter boxes and privacy screen; and
amending the landscape plan.
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.
As the Amended Development Application seeks to carry out dewatering activities, a water supply work approval is required under s 90 of the Water Management Act 2000 (NSW) (WM Act).
The respondent referred the Development Application, as lodged, to Water NSW for the purposes of ss 4.46 and 4.47 of the EPA Act and s 90(2) of the WM Act.
On 3 March 2026, Water NSW issued revised General Terms of Approval in relation to the Amended Development Application which are incorporated in the agreed conditions of consent (see Condition 2).
Chapter 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) applies to the Subject Land as it is located within the “coastal use area” for the purposes of s 2.11 of the RH SEPP.
Pursuant to s 2.11 of the RH SEPP, development consent must not be granted to development on land within the “coastal use area” unless the consent authority has considered the matters in s 2.11(1)(a) and is satisfied of the matters in s 2.11(1)(b). The parties agree, and I accept that, the matters in s 2.11(1)(a) have been considered and the matters in s 2.11(1)(b) have been satisfied having regard to the fact that the proposal:
Will not impact on access to and along the foreshore as the proposed development is located entirely on a private property and will not affect the public foreshore, beach, headland or rock platform access (Survey Plan prepared by Beveridge Williams dated 4 December 2023).
Will not result in any overshadowing, wind funnelling or loss of views from public places to foreshores (see Visual Impact Assessment prepared by Urbaine Design Group dated 31 July 2025 (VIA)).
Will not result in any adverse impact to visual amenity and scenic qualities of the coast, including coastal headlands (see VIA).
Will not have an adverse impact on Aboriginal cultural heritage, practices and places or cultural and built environment heritage. There are no known Aboriginal sites within the vicinity of the property and the likelihood of surviving unrecorded sites is minimal. The proposed works include reinstatement of a stone kerb on North Steyne, and the amendments have resulted in a built form of a reduced bulk and scale that does not cause an adverse impact on the heritage significance of the other heritage items in the vicinity of the property.
Section 2.12 of the RH SEPP provides that development consent must not be granted to development on land within the coastal zone unless the consent authority is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land. The parties agree, and I accept, that the proposed development is not likely to cause an increased risk of coastal hazards on that land or other land for the reasons set out in the Coastal Engineering Advice prepared by Horton Coastal Engineering dated 13 December 2024 and conditions of consent (see Conditions 18 and 57).
Section 4.6(1) of the RH SEPP provides that a consent authority must not consent to the carrying out of any development on land unless:
4.6 Contamination and remediation to be considered in determining development application
…
(a) it has considered whether the land is contaminated, and
(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and
(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.
The Amended Development Application is accompanied by:
a Preliminary Site Investigation prepared by EI Australia dated 30 October 2024 (PSI).
Detailed Site Investigation prepared by EI Australia dated 29 September 2025 (DSI) which recommends that a Remediation Action Plan be prepared.
A Remediation Action Plan prepared by EI Australia dated 2 October 2025 (RAP) which concludes that the site can be made suitable for the proposed development.
Having regard to the PSI, DSI, RAP and Condition 1 of the Agreed Conditions, I am satisfied that s 4.6 of the RH SEPP has been satisfied.
The parties agree that Ch 4 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) applies to the Amended Development Application as the proposed development relates to residential apartment development under s 144 of the Housing SEPP.
Section 145(2) of the Housing SEPP requires the consent authority to refer the application to the design review panel for the local government area in which the development will be carried out for advice on the quality of the design of the development. On 22 August 2024, the Design and Sustainability Advisory Panel held a meeting and prepared meeting minutes and recommendations in response to the proposed development, thereby satisfying s 145(2) of the Housing SEPP.
Section 147 of the Housing SEPP requires the consent authority to have considered the matters listed in s 147(1) of the Housing SEPP (which includes the Apartment Design Guide (ADG)) before granting consent.
The parties agree, and I accept, that the Amended Development Application is satisfactory in light of the principles set out in Sch 9 of the Housing SEPP, the ADG, and the advice received from the review panel, having regard to the Amended Design Report prepared by Smart Design Studio dated 10 December 2025 (Design Report) and Amended Statement of Environmental Effects prepared by Willow Tree Planning dated 15 August 2025 (Amended SEE), which address the requirements of s 147(1) of the Housing SEPP and s 29(2)(a) to (b)(ii) and 29(3) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).
The parties agree that s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) applies to the Amended Development Application.
Pursuant to s 2.48(2) of the TI SEPP, a consent authority must give written notice to the electricity supply authority for the area in which the development is to be carried out (being Ausgrid in this case), inviting comments about potential safety risks, and take into consideration any response to the notice that is received. The Development Application was consequently referred to Ausgrid pursuant to s 2.48 of the TI SEPP.
Ausgrid provided its response (undated), stating that it had no objection to the proposal subject to the imposition of relevant conditions. Ausgrid’s conditions of consent are incorporated in the agreed conditions of consent (see Condition 2 of the Agreed Conditions).
1 Objectives of zone
• To provide for the housing needs of the community within a medium density residential environment.
• To provide a variety of housing types within a medium density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To encourage the revitalisation of residential areas by rehabilitation and suitable redevelopment.
• To encourage the provision and retention of tourist accommodation that enhances the role of Manly as an international tourist destination.
Pursuant to cl 4.3 of the MLEP relating to height of buildings, a maximum height development standard of 13m applies to the Subject Land (Height Standard). The Amended Development Application proposes a height of 16.4m. As such, the Amended Development Application seeks to vary the Height Standard and is supported by a written cl 4.6 request prepared by Willow Tree Planning dated 19 November 2025 (Height Request).
The Height Request provides a detailed assessment of the Amended Development Application’s compliance with the matters raised in cl 4.6(3) of the MLEP and concludes that:
Compliance with the Height Standard is unreasonable or unnecessary in the circumstances because the Amended Development Application achieves the objectives of the Height Standard set out in cl 4.3 of the MLEP, despite the numerical non-compliance.
There are sufficient environmental planning grounds to justify the contravention including because:
(a) The fifth storey is set back from the street to minimise the bulk of the development when viewed from the public domain. A recessed fifth storey is a prevalent form of development within the two neighbouring residential flat buildings exhibiting this built form. Therefore, the proposed built form will achieve consistency with the streetscape. (b) The proposed building height is a result of the requirement to provide entry levels that are sufficiently high to meet the Flood Planning Level (FPL).
In respect of the Height Request, the applicant has demonstrated that compliance with the Height Standard is unreasonable or unnecessary in the circumstances and there are sufficient environmental planning grounds to justify the contravention of the Height Standard in accordance with the requirements under cl 4.6(3) of the MLEP.
Pursuant to cl 4.4 of the MLEP relating to floor space ratio (FSR), a maximum FSR development standard of 1.5:1 applies to the Subject Land (FSR Standard). The Amended Development Application proposes a FSR of 1.89:1. As such, the Amended Development Application seeks to vary the FSR Standard and is supported by a written cl 4.6 request prepared by Willow Tree Planning dated 19 November 2025 (FSR Request).
The FSR Request provides a detailed assessment of the Amended Development Application’s compliance with the matters raised in cl 4.6(3) of the MLEP and concludes that:
Compliance with the FSR Standard is unreasonable or unnecessary in the circumstances because the Amended Development Application achieves the objectives of the FSR Standard set out in cl 4.4 of the MLEP, despite the numerical non-compliance.
There are sufficient environmental planning grounds to justify the contravention including because:
(a) The proposal is consistent with the underlying objectives or purpose of the FSR Standard as well as the R3 Medium Density Residential zone. (b) The recessed fifth floor level softens the visual impact of the development from street level and ensures the protection of adjoining amenity.
In respect of the FSR Request, the applicant has demonstrated that compliance with the FSR Standard is unreasonable or unnecessary in the circumstances and there are sufficient environmental planning grounds to justify the contravention of the FSR Standard in accordance with the requirements under cl 4.6(3) of the MLEP.
Although the Subject Land is not identified as a heritage item or located within a heritage conservation area, cl 5.10 of the MLEP relating to heritage conservation has been considered due to the “stone kerbs” along the site frontage being listed as a Local Heritage Item (No 12) under the MLEP. The proposed development seeks consent to decommission the vehicles crossings in this location, which would allow for the full length of the kerb to be reinstated.
Pursuant to cl 5.10(4), development consent must not be granted to development unless the consent authority has considered the effect of the proposed development on the heritage significance of the area concerned. The parties agree, and I accept, that the impact of the proposed development has been considered in accordance with cl 5.10(4) having regard to the following:
Addendum Heritage Letter prepared by NBRS dated 14 August 2025 (Addendum Heritage Letter);
Amended Architectural Plans prepared by Smart Design Studio dated 17 November 2025 (Amended Architectural Plans); and
analysis set out in the Amended SEE (see p 55).
Pursuant to cl 5.21 of the MLEP relating to flood planning, the consent authority must not grant consent unless it is satisfied of the matters in cl 5.21(2) and has considered the matters in cl 5.21(3). The parties agree, and I accept that, the matters in cl 5.21(2) and (3) have been satisfied and considered, respectively, having regard to the following documents:
Flood Assessment Report prepared by GRC Hydro dated 10 December 2024 (Flood Report);
Amended Stormwater Management Plan prepared by NDY dated 20 November 2025 (Amended Stormwater Management Plan);
Amended Architectural Plans; and
the Amended SEE (see p 55).
Pursuant to cl 6.1 of the MLEP relating to acid sulfate soils, development consent must not be granted unless an acid sulfate soils management plan (ASS Plan) has been prepared for the proposed works. As the Subject Land is mapped as a Class 4 Acid Sulfate Soils area and the proposed development seeks consent for excavation below 2m of the natural ground level to construct the basement, it is agreed that the provisions of cl 6.1 of the MLEP are engaged.
The PSI prepared as part of the proposal concludes that the Subject Land “presents a low risk of the presence of Acid Sulfate Soils and the potential for generation of acid sulfate soil conditions during the proposed development was regarded as negligible. The preparation of an acid sulfate soil management plan was considered as being unwarranted”. Accordingly, pursuant to cl 6.1(4) of the MLEP, the parties agree, and I accept, that an ASS Plan is not required in this matter.
Pursuant to cl 6.2 of the MLEP relating to earthworks, the consent authority must consider the matters specified in cl 6.2(3) when deciding whether to grant consent for earthworks. The parties agree, and I accept, that there is no impediment to the grant of development consent having regard to the matters for consideration in cl 6.2(3) on the basis of the following documents:
Amended Stormwater Management Plan;
Geotechnical Investigation prepared by EI Australia dated 3 December 2024;
Addendum Heritage Letter; and
Agreed conditions of consent.
Pursuant to cl 6.4 of the MLEP relating to stormwater management, development consent must not be granted unless the consent authority is satisfied of the matters listed in cl 6.4(3). The parties agree, and I accept, that the matters listed in cl 6.4(3) are satisfied having regard to the following documents:
Amended Stormwater Management Plan;
Flood Report;
Amended Architectural Plans; and
Agreed conditions of consent.
Pursuant to cl 6.9 of the MLEP relating to foreshore scenic protection, development consent must not be granted unless the consent authority is satisfied of the matters listed in cl 6.9(3). The parties agree, and I accept, that the matters in cl 6.9(3) are satisfied having regard to the Amended Architectural Plans.
Pursuant to cl 6.12 of the MLEP relating to essential services, development consent must not be granted unless the consent authority is satisfied that the services essential for the development are available or that adequate measures have been made to make them available. The parties agree, and I accept that, all essential services are available or will be made available having regard to the following:
Amended Architectural Plans;
Amended Stormwater Management Plan; and
Civil Plans prepared by NYD dated 20 November 2025.
The matters set out in s 4.15(1)(b), (c) and (e) of the EPA Act are addressed in the Amended SEE (see pp 59-71).
As set out at [4] above, for the purposes of s 4.15(d) of the EPA Act, the Development Application was publicly notified between 17 February and 17 March 2025. Six submissions were received objecting to the proposed development. The submissions raised concerns including:
owners’ consent;
view and privacy impacts;
solar access impacts;
construction impacts;
ADG and MDCP non-compliances;
excessive height and FSR non-compliances;
impacts on streetscape;
the proposal’s design;
Building Code of Australia and National Construction Code non-compliances; and
heritage impacts.
In addition, the Court heard from one resident at the second conciliation conference raising concerns including excessive height and FSR exceedances, streetscape impacts and a reduced front setback.
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.
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.
The Court notes that the respondent, as the relevant consent authority, has approved under s 38(1) of the EPA Regulation, the applicant amending Development Application No DA2025/0022 in accordance with the documents listed below:
| Amended Architectural Plans | | Plan name | Drawing ref | Revision | Date | Prepared by | | Site Plan | DA001 | C | 17-11-25 | Smart Design Studio | | Site Demolition Plan | DA002 | C | 17-11-25 | Smart Design Studio | | B2 Plan | DA098 | D | 17-11-25 | Smart Design Studio | | B1 Plan | DA099 | D | 17-11-25 | Smart Design Studio | | L00 Plan | DA100 | D | 17-11-25 | Smart Design Studio | | L01-L02 Plan | DA101 | D | 17-11-25 | Smart Design Studio | | L03 Plan | DA102 | D | 17-11-25 | Smart Design Studio | | L04 Plan | DA103 | F | 17-11-25 | Smart Design Studio | | Roof Plan | DA104 | E | 17-11-25 | Smart Design Studio | | Elev – N S | DA400 | D | 17-11-25 | Smart Design Studio | | Elev – E W | DA401 | D | 17-11-25 | Smart Design Studio | | Sect - A B | DA450 | D | 17-11-25 | Smart Design Studio | | Plan name | Drawing Ref | Revision | Date | Prepared by | | C000 | Cover Sheet | P4 | 23-11-2025 | NDY | | C001 | Project notes | P4 | 23-11-2025 | NDY | | C100 | Erosion and Sediment Control | P4 | 23-11-2025 | NDY | | C200 | Civil Layout Plan – Ground | P4 | 23-11-2025 | NDY | | C201 | Civil Layout Plan – Basement B1 | P4 | 23-11-2025 | NDY | | C202 | Civil Layout Plan – Basement B2 | P4 | 23-11-2025 | NDY | | C300 | Music Catchment Plan | P4 | 23-11-2025 | NDY | | C400 | Civil Detail Sheet 1 of 2 | P4 | 23-11-2025 | NDY | | C401 | Civil Detail Sheet 2 of 2 | P4 | 23-11-2025 | NDY | | Landscape Plans | | Plan name | Drawing ref | Revision | Date | Prepared by | | Cover Sheet & Design statement | LD-DA000 | Version 2 | 10 November 2025 | Land + Fort | | Planting Schedule & Legends | LD-DA001 | Version 2 | 10 November 2025 | Land + Fort | | Ground floor & Public Domain Plan | LD-DA100 | Version 2 | 10 November 2025 | Land + Fort | | Level 01-03 Typical Plan and Planting Plan | LD-DA110 | Version 2 | 10 November 2025 | Land + Fort | | Level 01-03 Typical Plan and Planting Plan | LD-DA110 | Version 2 | 10 November 2025 | Land + Fort | | Level 04 Plan and Planting Plan | LD-DA200 | Version 2 | 10 November 2025 | Land + Fort | | Site Section A | LD-DA400 | Version 2 | 10 November 2025 | Land + Fort | | Site Section B | LD-DA410 | Version 2 | 10 November 2025 | Land + Fort | | Typical Detail & Outline Specification & Maintenance | LD-DA900 | Version 2 | 10 November 2025 | Land + Fort | | Amended Reports | | Report name | Ref | Revision | Date | Prepared by | | Schedule of Amendments | - | - | 17 November 2025 | Smart Design Studio | | Clause 4.6 Variation Request Floor Space Ratio | WTJ24-187 | 3 | 19 November 2025 | Willowtree Planning | | Clause 4.6 Variation Request Height of Buildings | WTJ24-187 | 3 | 19 November 2025 | Willowtree Planning | | Stormwater Management Plan | RP240731s0025 | 2 | 20 November 2025 | NDY | | Detailed Site Investigation | E26499.E02 | 1 | 29 September 2025 | EI Australia | | Remedial Action Plan | E26499.E06 | 0 | 2 October 2025 | EI Australia | | Design Verification Statement | - | - | 10 December 2025 | Smart Design Studio | | Operational Waste Management Plan | 6366 | G | 15 January 2026 | Elephants Foot | | Amended BASIX plans | Certificate No. 17785022M02 | - | 7 January 2026 | |
The Court orders that:
The appeal is upheld.
The applicant is to pay the respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as agreed or assessed.
Development Consent is granted to DA2025/0022 (as amended) for the demolition of existing structures and construction of a five-storey residential flat building containing seven apartments over basement parking, at 101 North Steyne, Manly, subject to the conditions in Annexure A.
Annexure A (414 KB, pdf)
**********
Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip” rule), amendment is made to a typographical error in paragraph 51 of the judgment and Condition 1 of Annexure A.
Manly Land 101 Pty Ltd
Northern Beaches Council [2026] NSWLEC 1143