34-35 South Steyne Pty Limited v Northern Beaches Council [2026] NSWLEC 1189

Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Land and Environment Court New South Wales Medium Neutral Citation: 34-35 South Steyne Pty Limited v Northern Beaches Council [2026] NSWLEC 1189 Hearing dates: Conciliation Conference on 17 February 2026 Date of orders: 09 April 2026 Decision date: 09 April 2026 Jurisdiction: Class 1 Before: O’Neill C Decision: The orders of the Court are: (1) The appeal is upheld. (2) 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. (3) Development Consent No. DA2022/1164, as modified by the Court , is at Annexure B. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.55, 8.9, 8.14 Land and Environment Court Act 1979 (NSW), s 34 Water Management Act 2000 (NSW), ss 89, 90, 95 Environmental Planning and Assessment Regulation 2021 (NSW), s 113 Manly Local Environmental Plan 2013 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48 Category: Principal judgment Parties: 34-35 South Steyne Pty Limited (Applicant) Northern Beaches Council (Respondent 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 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 D evelopment C onsent No. DA2022/1164 for the demolition and construction of a 3-4 storey commercial building over 2 basement level s (the consent) , at 34-35 South Steyne , Manly ( Lot B in DP 10 2 407 ) (the site), by Northern Beaches Council (the Council). 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 202 6 . 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. 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 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) . The o riginal c onsent has been subsequently modified on the following occasions: On 7 August 2024, the o riginal c onsent was modified following the Respondent's approval of M odification A pplication No. MOD2024/0225 for minor internal and rooftop modifications. On 5 March 2025, the c onsent was further modified following the Respondent's approval of M odification A pplication MOD2024/0419 for internal and external changes , including infilling the approved lightwell, and the addition of solar panels. Amended application The application as lodged s ought to: increase the size and layout of the Level 3 floorplate; and delete the reference to the previously proposed fa çade washing system on the eastern building fa çade. T he parties reached agreement to resolve the proceedings on the basis of the following amendments to the application: r eduction in the extent of the approved upper-level building splay and consequential changes to internal layout; i ntroduction of a small roof terrace in the north-western corner of the upper-level floor plate; c onsequential fa çade changes, including external lighting changes, flowing from the revised upper-level form/ terrace; r elocation 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; a lter the geometry of the servery on the ground floor of the western fa çade including consequential alterations to the side corridor and gradients; and a dd lighting to wash the western fa çade. 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 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: a reduction in the extent of the approved upper-level building splay, resulting in a recessed upper-level built form; t he introduction of a small roof terrace in the north-western corner of the upper-level floor plate; c onsequential 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 a lteration to the geometry of the ground floor servery on the western fa çade and introduction of lighting to wash the western fa çade. I am satisfied that the application , in terms of a qualitative and quantitative assessment, do es 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. Pursuant to s 4.55(2)(b) of the EPA Act, t he 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 S tate 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. Th is application was referred to Ausgrid . Th is 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 propos al . 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. 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 the ir amenity. The Council proposed the following conditions be imposed on the modified consent to protect the amenity of the nearby residential properties: Lighting on the western fa çade to be installed in accordance with Australian Standard 4282-1977 and limit illumination to 7am to 10pm daily (condition 68). restrict the hours of use of the roof terrace (condition 69) . 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 I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 17 February 202 6 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 The orders of the Court are: The appeal is upheld. 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. 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) ********** 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: 09 April 2026