18 Victoria Pty Ltd v Northern Beaches Council [2026] NSWLEC 1399

Catchwords: APPEAL – development application – residential flat building – conciliation conference – agreement between the parties – orders Land and Environment Court New South Wales Medium Neutral Citation: 18 Victoria Pty Ltd v Northern Beaches Council [2026] NSWLEC 1399 Hearing dates: Conciliation conference 14 April, 24 April, 27 May 2026 Date of orders: 1 July 2026 Decision date: 01 July 2026 Jurisdiction: Class 1 Before: Creagh AC Decision: The Court orders that: (1) The Applicant is to pay the Respondent ’ s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed amount of $3,100 within 28 day s of the receipt of an invoice . (2) The appeal is upheld. (3) The written request pursuant to cl 4.6 of the Manly Local Environment Plan 2013 to vary the development standard for the height of building control contained within s 180(2)(b) of the State Environmental Planning Policy (Housing) 2021 , as prepared by Minto Planning Services, dated 24 April 2026, is upheld. (4) Development Application No DA 2025 / 1157 , as amended , for demolition works and construction of a residential flat building containing basement parking at 18 -20 Victoria Parade, Manly, is determined by the grant of consent subject to the conditions set out in Annexure A. Catchwords: APPEAL – development application – residential flat building – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7, 8.15 Land and Environment Court Act 1979 (NSW), s 34 Environmental Planning and Assessment Regulation 2021 (NSW) , s s 27, 29, 38 Manly Local Environmental Plan 2013 cll 2.7 , 4.3, 4.6, 5.10, 6.1, 6.2, 6.4, 6.9, 6.12 State Environmental Planning Policy (Biodiversity and Conservation) 2021 , ss 6.6, 6.8 State Environmental Planning Policy (Housing) 2021, ss 145, 147, 174 , 175, 177, 180 State Environmental Planning Policy ( Resilience and Hazards) 2021 , s 4.6 State Environmental Planning Policy ( Sustainable Buildings) 2022 , s 2.1 State Environmental Planning Policy (Transport and Infrastructure) 2021 , s 2.48 Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 Category: Principal judgment Parties: 18 Victoria Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) M Cottom (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Northern Beaches Council (Respondent) File Number(s): 2025/00413489 Publication restriction: No JUDGMENT COMMISSIONER : This appeal concerns a development application for demolition of existing structures and construction of a residential flat building above basement parking at 18 -20 Victoria Parade , Manly . Pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), the appeal was commenced against the deemed refusa l of the development application . In exercising the functions of the consent authority in relation to the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. As required under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) , the Court arranged a conciliation conference between the parties . The conference was held on 14 April 2026 , was adjourned for the preparation of additional documentation, then continued on 24 April and 27 May 2026 . I presided over the conciliation conference. During the course of conciliation , the parties reached an agreement based on amended plans and documents . The Council, as the consent authority, agreed to the amendment of the development application according to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg ulation) . The amended plans and documents are: Amended Architectural Plans Drawing ref Plan name Revision Date Prepared by DA000 Cover Page D 24.04.2026 DKO Architecture DA001 Development Summary D 10.04.2026 DKO Architecture DA100 Site Photos A 31.07.2025 DKO Architecture DA101 Heritage Buildings A 31.07.2025 DKO Architecture DA102 Site and Location Plan A 31.07.2025 DKO Architecture DA103 Site Analysis Plan A 31.07.2025 DKO Architecture DA104 Survey Plan B 31.03.2026 DKO Architecture DA105 Demolition Plan A 31.07.2025 DKO Architecture DA106 Site Plan E 24.04.2024 DKO Architecture DA107 Site Front Setback Analysis B 10.04.2026 DKO Architecture DA200/1 Sub-Floor Service B 24.04.2026 DKO Architecture DA200 Basement E 24.04.2026 DKO Architecture DA201 Ground Floor E 24.04.2026 DKO Architecture DA202 Level 1-3 D 10.04.2026 DKO Architecture DA203 Level 4 Sub-Pent E 24.04.2026 DKO Architecture DA204 Level 5 Penthouse D 10.04.2026 DKO Architecture DA205 Roof E 24.04.2026 DKO Architecture DA300 North-West Elevations D 10.04.2026 DKO Architecture DA301 South-West Elevations D 24.04.2026 DKO Architecture DA302 South-East Elevations D 24.04.2026 DKO Architecture DA303 North-East Elevations D 24.04.2026 DKO Architecture DA304 Section AA C 10.04.2026 DKO Architecture DA305 Section BB C 10.04.2026 DKO Architecture DA310 Materials and Finishes Schedule D 24.04.2026 DKO Architecture DA311 Detail Section B 24.04.2026 DKO Architecture DA400 Shadow Diagrams C 10.04.2026 DKO Architecture DA401 Shadow Diagrams C 10.04.2026 DKO Architecture DA402 EOTS C 10.04.2026 DKO Architecture DA403 EOTS C 10.04.2026 DKO Architecture DA500 GFA Diagrams E 24.04.2026 DKO Architecture DA501 Solar Access Diagrams E 24.04.2026 DKO Architecture DA502 Cross vent Diagrams E 24.04.2026 DKO Architecture DA503 Deep Soil Diagrams E 24.04.2026 DKO Architecture DA504 COS E 24.04.2026 DKO Architecture DA505 Unit Mix E 24.04.2026 DKO Architecture DA506 Adaptable Apartment E 24.04.2026 DKO Architecture DA507 Adaptable Apartment D 10.04.2026 DKO Architecture DA508 Liveable Apartment E 24.04.2026 DKO Architecture DA509 Liveable Apartment C 10.04.2026 DKO Architecture DA510 Heigh Plane C 10.04.2026 DKO Architecture DA511 Height Plane Calculations D 24.04.2026 DKO Architecture Amended Landscape Plans Drawing Ref Plan name Revision Date Prepared by LP01 Landscape Plan: Ground D 23.04.2026 Landscape Architecture Pty Ltd LP02 Landscape Plan: Level 4 D 23.04.2026 Landscape Architecture Pty Ltd LP03 Landscape Plan: Roof D 23.04.2026 Landscape Architecture Pty Ltd LP04 Schedule D 23.04.2026 Landscape Architecture Pty Ltd LP05 Sections + Images D 23.04.2026 Landscape Architecture Pty Ltd Amended Reports Architectural Design Verification Statement prepared by DKO Architecture dated 24 April 2026 Clause 4.6 Variation Request – Height of Buildings – prepared by Minto Planning Services dated 24 April 2026 Geotechnical and Acid Sulfate Soil Assessment prepared by Geo-Environmental Engineering dated 23 April 2026 Additional Geotechnical and Acid Sulfate Soil Assessment prepared by Geo-Environmental Engineering dated 25 May 2026 BASIX Assessment Report prepared by ADP dated 23 April 2026 Concept Stormwater Plan dated April 2026 A signed s 34 agreement was filed on 2 June 2026 . The parties ’ agreement is for the grant of consent to the application, as amended, subject to conditions. The provision of a signed s 34 agreement meets the first condition to the exercise of power and obligation of a commissioner to dispose of the proceedings in accordance with the decision of the parties (this being the test applied by s 34(3) of the LEC Act): see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 ( McMillan ) at [51]. The signed s 34 agreement wa s supported by a Jurisdictional Note that sets out the jurisdictional prerequisites to the exercise of the power to grant consent. Pursuant to s 4.15(1) of the EPA Act, I have considered the content of the Jurisdictional Note and the documents it refers to, in addition to the Class 1 Application and its attachments and the documents referred to in condition 1 of Annexure A . I am satisfied that the decision to grant development consent to the amended application , subject to conditions of consent , is one the Court could have made in the proper exercise of its functions, this being the second test applied by s 34(3) of the LEC Act : see McMillan at [4], [51]. I formed this state of satisfaction on the basis that : Landowner ’ s consent was provided by the owner s at the time the development application was lodged. The d emolition sought by the application is permissible with consent pursuant to cl 2.7 of the Man l y Local Environment Plan 2013 ( M LEP) . T he development application was referred to the relevant design advisory panel for advice, and I accept that Council has considered the matters under s s 145(2) and 147 (1) (a)-(c) of the State Environmental Planning Policy ( Housing ) 2021 (SEPP Housing) pertaining to design review and design quality . A BASIX certificate (dated 23 April 2026) accompanies the amended application in compliance with the requirements of s 27 (1) of the EPA Regulation . I am also therefore satisfied of the requirement in s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022 . A n A rchitectural D esign V erification S tatement (DKO Architecture, 24 April 2026) is included in the amended application, and a Design Report in the Class 1 Application , thus I am satisfie d of the requirements under the EPA Regulation s 29(1)-(2) related to residential apartment development. T he site is zoned R3 Medium Density Residential under the MLEP . D evelopment for the purposes of a residential flat building is permissible with consent , pursuant to s 174 of SEPP Housing . The Jurisdictional Note, amended application and landscape plans indicate a deep soil area of 10.1% of the total site area , with trees selected according to the “ Tree Canopy Guide for Low and Mid Rise Housing ” . I therefore accept that Council have considered the matters pursuant to s 177 of SEPP Housing. The site is located with in 400 m of the Manly Town Centre, thus the development standards for residential flat buildings in a low and midrise housing “ inner area , ” as set out in s 180 of SEPP Housing , apply. The floor space ratio (FSR) for the amended development is 2.1:1, which compl ies with the development standard for a maximum FSR of 2.2:1, as set out in s 180(2)(a) SEPP Housing . Th e c ontravention of the maximum building height of 22 m set out under both s 175 (2) and s 180(2)(b) of SEPP Housing can be justified on the grounds articulated in the written request included in the amended documents ( Minto Planning Services, 24 April 2026 ) pursuant to cl 4.6 of the M LEP . The amended development exceeds the 22 m development standard by 2.3 m , this exceedance facilitating lift and stair access to private and communal open space and other amenity at roof top level , with the s ix storeys of habitable accommodation contained below the 22 m maximum building height limit. Th e height exceedance is set back from the street and contained to a minor portion of the overall proposed building floorplate. I am satisfied that the applicant has demonstrated sufficient environmental planning grounds to justify the breac h. I am also satisfied th e a pplicant has demonstrated that compliance with the standard is unreasonable and unnecessary given the proposal is consistent with the objectives of cl 4.3 of the MLEP , notwithstanding the non-compliance . With reference to the Jurisdictional Note , the stormwater drainage plans submitted as part of the Class 1 Application, and the agreed conditions of consent, I accept that Council have considered the relevant issues related to the location of the site in the Sydney Harbour Catchment pursuant to Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 , and that pursuant to ss 6.6(2) and 6.8(2) , the development is unlikely to have an adverse impact on water quality , quantity , and flooding . Ausgrid has provided its consent for the proposed development, subject to conditions, in accordance with s 2.48(2) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 . P ursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 , I accept that Council have considered the Applicant ’ s Statement of Environmental Effects (SEE) submitted as part of the Class 1 Application, which state s the site — which historically has been used for residential purposes — is unlikely to be contaminated. I accept that Council has considered the impact of the development on the heritage significance of the Manly Town Centre Heritage Conservation Area and local heritage items in the vicinity of the development site, pursuant to the relevant matters contained cl 5.10 of the MLEP. Although the site is identified as “ Class 4 ” on the MLEP Acid Sulfate Soils Map , engaging cl 6.1 of the MLEP , information contained in the Jurisdictional Note, geotechnical and acid sulfate soi l assessments provided as part of the Class 1 and amended application s state that the likelihood of encountering acid sulfate soils during excavation is low . With reference to the Jurisdictional Note , reports submitted as part of the Class 1 Application , and plans and assessments provided as part of the amended application , I accept that Council have considered the earthworks proposed to facilitate the development in relation to cl 6.2(3) of the M LEP . With reference to the stormwater management plans submitted as part of the amended application and the inclusion of onsite stormwater detention, I am satisfied in relation to the matters pursuant to cl 6.4(3) of the M LEP . With reference to the SEE, amended architectural plans and Jurisdictional Note , I accept that Council has considered the impact of the development on matters related to foreshore scenic protection set out under cl 6.9 (3) of the MLEP. As per the information provided in the SEE and Jurisdictional Note, t he essential services nominated under cl 6.12 of the MLEP are already provided to the development site. As I am satisfied that the decision of the parties is one that the Court could have made in the exercise of its functions, u nder s 34(3) (a) of the LEC Act, I must dispose of the proceedings in accordance with the parties ’ decision . The LEC Act s 34(3)(b) also requires that I set out the terms of the decision in writing. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgement on the matters that were originally in dispute between the parties, or any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. The Court orders that: The Applicant is to pay the Respondent ’ s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed amount of $3,100 within 28 days of the receipt of an invoice. The appeal is upheld. The written request pursuant to cl 4.6 of the Manly Local Environment Plan 2013 to vary the development standard for the height of building control contained within s 180(2)(b) of the State Environmental Planning Policy (Housing) 2021, as prepared by Minto Planning Services, dated 24 April 2026, is upheld. Development Application No DA2025/1157, as amended, for demolition works and construction of a residential flat building containing basement parking at 18-20 Victoria Parade, Manly, is determined by the grant of consent subject to the conditions set out in Annexure A . L Creagh Commissioner of the Court Annexure A (509 KB, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 July 2026