Miller v Northern Beaches Council

[2025] NSWLEC 1571

Land and Environment Court

New South Wales

Medium Neutral Citation:

Miller v Northern Beaches Council [2025] NSWLEC 1571

Hearing dates:

Conciliation conference on 11 June 2025

Date of orders:

12 August 2025

Decision date:

12 August 2025

Jurisdiction:

Class 1

Before:

Thorpe AC

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the agreed amount of $4000 within 28 days of the date of these orders.

(2) The appeal is upheld.

(3) The request pursuant to clause 4.6 of the Manly Local Environmental Plan 2013 to vary the development standard for height contained within clause 4.3 thereof, as prepared by Boston Blyth Fleming, is upheld.

(4) The request pursuant to clause 4.6 of the Manly Local Environmental Plan 2013 to vary the development standard for floor space ratio contained within clause 4.4 thereof, as prepared by Boston Blyth Fleming, is upheld.

(5) Development Application DA2024/1503, as amended, for the demolition of the existing residential flat building and construction of a residential flat building with a pool and basement carpark and strata subdivision at 3 Fairlight Crescent, Fairlight NSW, is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential development contravention of development standards – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979 (NSW), s 34

Environmental Planning and Assessment Regulations 2021 (NSW), s 38, Sch 7

Manly Local Environmental Plan 2013, cll 4.3, 4.6, 5.10, 6.2, 6.4, 6.9, 6.12

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, 6.3, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.28, 6.32

State Environmental Planning Policy (Housing) 2021, Ch 4, ss 144, 145, 147

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.12, 2.13, 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Texts Cited:

Apartment Design Guide 2015

Manly Development Control Plan 2013

Category:

Principal judgment

Parties:

Claire Miller (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
A Gough (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
SG Law (Respondent)

File Number(s):

2025/11276

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of development application DA2024/1503 (DA) by Northern Beaches Council (Council).

2. The DA, as amended, seeks consent for demolition of an existing residential flat building, construction of a new residential flat building, strata subdivision and associated works at 3 Fairlight Crescent, Fairlight, legally identified as Lot B in Deposited Plan 190358 (site).

Conciliation and agreement between the parties

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (NSW) (Court Act), at which I presided. The conference was held on 11 June 2025.

4. Through the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. Under s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions.

5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a jurisdictional statement that sets out the matters the Court must consider prior to the grant of development consent. I have considered the contents of the statement together with the documents referred to therein, the Class 1 Application and its attachments (Class 1), and the documents in Annexures A and B. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

6. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg). The plans and documents comprising the amended application are listed under condition 1 of the conditions of consent at Annexure A and contained in Annexure B.

Jurisdictional considerations

7. As the presiding Commissioner I am satisfied that the decision to grant development consent to the DA, as amended and subject to conditions of consent, is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). I am satisfied that each of the jurisdictional preconditions identified by the parties is met, as set out below.

8. The parties advise that all required notification and referral has been undertaken and that due consideration has been given to submissions. A total of 20 submissions were received, with 19 objecting and 1 supporting the DA. The parties advise that the submissions have been considered, and the relevant matters addressed, noting that the amended DA reduces the proposed height, floor space ratio (FSR) and excavation, and increases the proposed setbacks, landscaped areas and open space.

State Environmental Planning Policy (Housing) 2021

Chapter 4 – design of residential apartment development

9. Chapter 4 provides planning controls and mandatory considerations applicable to residential apartment development. Pursuant to s 144(2)(a), Ch 4 applies because the DA seeks consent for a residential flat building.

10. Pursuant to s 145(2), Council’s Design and Sustainability Advisory Panel has considered the DA and provided advice on the quality of the design. The recommendations of the design review panel have been taken into consideration in the amended DA (s 147(1)(c)).

11. Pursuant to ss 147(1)(a) and (b), a statement addressing the design quality of the amended DA in accordance with the design quality principles and the consistency of the amended DA with the Apartment Design Guide has been provided (Tab 5 of Annexure B). I am satisfied that adequate regard has been given to the design quality principles and the relevant objectives specified in the Apartment Design Guide, as required under s 147.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

12. Parts 6.2 and 6.3 apply because the site is identified as being within the Sydney Harbour Catchment, the Foreshores and Waterways Area, and the Rocky Foreshores and Significant Seagrasses Area.

13. In relation to Pt 6.2, the parties agree, and I am satisfied, based on the stormwater plans (Tab 2, Annexure B), that the DA includes appropriate controls for treatment and control of stormwater runoff, designed to improve the quality of stormwater and minimise pollutant transfer to receiving waters (s 6.6). The parties agree that the matters set out in ss 6.7, 6.8, 6.9 and 6.10 have been appropriately addressed. I have considered the mandatory matters including aquatic ecology matters, impacts on periodic flooding that benefits wetlands and other riverine ecosystems, impacts on recreational land uses in the Sydney Harbour Catchment, adverse environmental impacts on any adjacent or downstream local government areas, potential release of pollutants, impacts on water quality or the natural recession of water, and impacts on public access. I am satisfied that the requirements of these provisions are met.

14. In relation to Pt 6.3, the parties are satisfied and I accept that the relevant matters in s 6.28 and 6.32 have been considered, and I am satisfied that the requirements of those provisions are met.

State Environmental Planning Policy (Sustainable Buildings) 2022

15. An updated BASIX Certificate accompanies the amended DA as required by s 2.1 of the State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) and Sch 7 of the EPA Reg (tabs 6 and 7, Annexure B). This includes an embodied energy report, in accordance with s 2.1(5).

State Environmental Planning Policy (Resilience and Hazards) 2021

16. Chapter 2 applies because the site is within the Coastal Environment Area and Coastal use area. Pursuant to s 2.12 and noting the Geotechnical Report (tab 8, Annexure B), I am satisfied that the DA is not likely to cause increased risk of coastal hazard. No coastal management program applies to the site (s 2.13). The requirements of Ch 2 are satisfied.

17. Pursuant to s 4.6(1), a consent authority must be satisfied that appropriate consideration has been given as to whether the site is contaminated, the suitability of the site for the proposed development and whether satisfactory measures have been put into place to remediate the land should it be required to do so. As set out in the Statement of Environmental Effects (tab 4, Class 1), the site is not identified as contaminated nor in the vicinity of any sites on the NSW Environmental Protection Agency's list of notified sites. The parties are satisfied and I accept that the requirements of s 4.6 are met.

Manly Local Environmental Plan 2013

18. The site is located within Zone C4 Environmental Living. The parties agree and I accept that the DA is permissible with consent and consistent with the relevant zone objectives.

19. The site is subject to a maximum building height control of 8.5 m pursuant to cl 4.3 of Manly Local Environmental Plan 2013 (MELP). The DA has a maximum height of 9.7 m and is supported by a Clause 4.6 Variation Request prepared by Boston Blyth Fleming (tab 4, Annexure B). Having read the written request I am satisfied that the requirements of cl 4.6 of MLEP are met for the following reasons:

1. The building height of the proposed development is consistent with that of surrounding development and development within the visual catchment of the site;

2. The roof form has been designed to minimise impacts upon harbour views enjoyed by surrounding properties;

3. The proposed building height does not contribute to unacceptable streetscape impacts nor unacceptable impacts on surrounding development.

20. Therefore, for the reasons stated in the written request the height variation is upheld.

21. The site is subject to a maximum FSR of 0.6:1. The DA exceeds this, proposing an FSR of 0.93:1. The applicant relies on the Clause 4.6 Variation Request prepared by Boston Blyth Fleming (tab 4, Annexure B). I am satisfied that the written request is adequate to justify the contravention for the following reasons:

1. The proposed building density and bulk does not obscure any identified important landscape and townscape features including the heritage listed foreshore reserve and the adjacent rock pool;

2. The proposed development does not result in any unreasonable impacts upon neighbouring properties with regards to overshadowing, visual or acoustic privacy;

3. The proposed built form included recessed elements, varied setbacks, building separation, differing materials and landscaping, and will not be overly dominant as seen from the street, the waterway or adjoining properties.

22. Therefore, for the reasons stated in the written request the height variation is upheld.

23. The site is not a heritage item or located within a heritage conservation area, but it is within the vicinity of three heritage items. The DA includes a heritage impact statement (Tab 4, Class 1) which concludes that the DA would have a neutral impact on the adjacent items and their setting. The parties agree and I am satisfied that the requirements of cl 5.10 are met.

24. I have considered the matters at cl 6.2, including the Amended Geotechnical Report prepared (Tab 8, Annexure B). The parties agree and I am satisfied that the requirements of cl 6.2 are met.

25. Based on the amended stormwater plans (tab 2, Annexure B), the parties agree, and I am satisfied that the requirements of cl 6.4 are met.

26. Clause 6.9 applies because the site is mapped under the foreshore scenic protection area. The parties agree and I am satisfied that the DA meets the requirements of that clause.

27. Pursuant to cl 6.12, I am satisfied that all essential services are available to the site.

Other considerations

28. The parties have considered the likely impacts of the DA and the suitability of the site for the DA and agree that the proposal, as amended, is acceptable and in the public interest.

29. While not a jurisdictional matter, the parties are satisfied that the DA, as amended, either complies with the relevant controls in Manly Development Control Plan 2013 or that sufficient justification has been provided in relation to any non-compliances.

Conclusion

30. Based on the above details, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the Court Act. It follows that I am in turn required to dispose of the proceedings in accordance with the parties’ decision.

31. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

32. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation:

33. The Court notes that:

1. Northern Beaches Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant's amendment to Development Application DA2024/1503, which includes the documents set out in Annexure B.

2. The Applicant provided the documents set out in Annexure B to the Court on the date of this agreement.

TAB	DOCUMENT	DATE
1.	• Architectural Plans (Up to Rev s34-2) prepared by Platform Architects • DA0000: Cover Page (Rev s34-2 dated 25 June 2025) • DA0050: Site Analysis (Rev s34-1 dated 25 June 2025) • DA0100: Site Plan (Rev s34-1 dated 25 June 2025) • DA0400: Demolition Plan (Rev s34-2 dated 25 June 2025) • DA0500: Excavation Plan (Rev s34-2 dated 25 June 2025) • DA 1001: Basement Plan (Rev s34-2 dated 25 June 2025) • DA1002: Ground Level Plan (Rev s34-2 dated 25 June • 2025) • DA1003: Level 1 Plan (Rev s34-2 dated 25 June 2025) • DA1004: Level 2 Plan (Rev s34-2 dated 25 June 2025) • DA1005: Level 3 Plan (Rev s34-2 dated 25 June 2025) • DA 1006: Roof Floor Plan (Rev s34-2 dated 25 June 2025) • DA 1950: Adaptable & Post-Adaptation Floor Plan (Rev s34-1 dated 25 June 2025) • DA2001: Street, North West and South East Elevation (Rev s34-2 dated 25 June 2025) • DA2002: South West and North East Elevation (Rev s34-2 dated 25 June 2025) • DA3000: Sections 1 &2 (Rev s34-2 dated 25 June 2025) • DA3001: Driveway Detail (Rev s34-1 dated 25 June 2025) • DA3002: Sewer Sections (Rev DA 1 dated 14 October 2024) • DA4000: Window Schedule (Rev s34-1 dated 25 June 2025) • DA5000: External Finishes Schedule (Rev DA1 dated 14 October 2024) • DA5100: GFA Summary (Rev s34-2 dated 25 June 2025) • DA5200: Open Space Summary (Rev s34-2 dated 25 June 2025) • DA5201: Landscaping Summary (Rev s34-2 dated 25 June 2025) • DA5300: Shadow Diagrams (Rev s34-2 dated 25 June 2025) • DA5301: Shadow Diagrams (Rev s34-2 dated 25 June 2025) • DA5302: Elevational Shadow Diagrams Sheet 1 (Rev s34-2 dated 25 June 2025) • DA5303: Elevational Shadow Diagrams Sheet 2 (Rev s34-2 dated 25 June 2025) • DA5400: Building Envelope Analysis (Rev s34-2 dated 25 June 2025) • DA5500: Height Breach Analysis (Rev s34-2 dated 25 June 2025)	Various dates
2.	Stormwater Plans (Up to Rev C) Prepared by Telford Civil • 000 - Cover Sheet Plan (Rev B dated 7 July 2025) • 101 - Basement Level 1 Sheet 1 (Rev C dated 7 July 2025) • 102 - Basement Level 1 Sheet 2 (Rev B dated 4 July 2025) • 103 - Stormwater Concept Plan Ground Level (Rev C dated 7 July 2025) • 104 - Stormwater Concept Plan Level 1 (Rev C dated 7 July 2025) • 105 - Stormwater Concept Plan Level 2 (Rev C dated 7 July 2025) Various dates • 106 - On-site Detention Details and Calculations (Rev B dated 4 July 2025) • 107 - Storage Tank Details Sheet (Rev C dated 7 July 2025) • 108- Catchment Plan and MUSIC Results (Rev C dated 7 July 2025) • 109 - Sediment & Erosion Control Plan & Details Sheet 1 (Rev A dated 26 June 2025) • 110 - Sediment & Erosion Control Plan & Details Sheet 2 (Rev A dated 26 June 2025) • 111 - Miscellaneous Details Sheet (Rev B dated 7 July 2025)	Various dates
3.	Amended Landscape Plans (Rev C) prepared by Danger Barin Smith Pty Ltd • DA Cover Page • Ground Floor Landscape • First Floor Landscape • Second Floor Landscape • Third Floor Landscape • Details	25 June 2025
4.	Updated Clause 4.6 Variation Requests (Height and FSR) prepared by Boston Blyth Fleming	-
5.	Housing SEPP Design Verification Statement prepared by Platform Architects	3 July 2025
6.	BASIX Assessment Report and Certification by Integrated Group Services	4 July 2025
7.	BASIX Certification No. 1770195M_03 by Integrated Group Services	4 July 2025
8.	Geotechnical Investigation Report prepared by Douglas Partners Pty Ltd	25 June 2025
9.	Updated Visual and View Impact Assessment prepared by Bonus and Associates	20 June 2025
10.	Statement of Advice regarding proposed parking arrangements prepared by Stanbury Traffic	4 July 2025
11.	Aboriginal Due Diligence Report prepared by Everick Heritage	4 July 2025

Orders:

34. The Court orders that:

1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the agreed amount of $4000 within 28 days of the date of these orders.

2. The appeal is upheld.

3. The request pursuant to clause 4.6 of the Manly Local Environmental Plan 2013 to vary the development standard for height contained within clause 4.3 thereof, as prepared by Boston Blyth Fleming, is upheld.

4. The request pursuant to clause 4.6 of the Manly Local Environmental Plan 2013 to vary the development standard for floor space ratio contained within clause 4.4 thereof, as prepared by Boston Blyth Fleming, is upheld.

5. Development Application DA2024/1503, as amended, for the demolition of the existing residential flat building and construction of a residential flat building with a pool and basement carpark and strata subdivision at 3 Fairlight Crescent, Fairlight NSW, is determined by the grant of consent subject to the conditions at Annexure A.

A Thorpe

Acting Commissioner of the Court

Annexure A (429 KB, pdf)

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Decision last updated: 12 August 2025