Background
Para-ere Holdings appealed Northern Beaches Council’s deemed refusal of DA2025/1662 for 22 Raglan Street, Manly. The proposal concerned alterations, additions and a change of use to an already approved mixed-use development, resulting in shop-top housing and associated works. The application was publicly exhibited, attracting nine objections, and the council’s design panel made 29 recommendations and did not support the original proposal in its then form.
After a court-arranged conciliation conference ended, the parties reached a s 34 agreement following amendments to the application. The amendments included changes to the façade to better address the heritage setting, reduced building bulk and balcony extent, and a greater front setback for the tower element. The proposal included affordable housing and relied on the Housing SEPP’s 30% floor-space-ratio and height bonuses.
The Court’s Holding
Commissioner Targett upheld the appeal and granted development consent for the amended DA, subject to conditions. Under s 34(3) of the Land and Environment Court Act 1979 (NSW), the Court was satisfied that the parties’ agreed outcome was one it could make in the proper exercise of its functions.
The Court accepted that the amended development met the relevant jurisdictional requirements. In particular, it accepted that the affordable-housing provisions permitted a maximum FSR of 2.86:1 and a maximum height of 31.2 metres, while the proposal’s FSR was 2.77:1. It also accepted the parties’ position on contamination, Sydney Harbour catchment controls, flood planning, heritage, acid sulfate soils, earthworks, stormwater, design and affordable-housing management. The applicant was ordered to pay the council $10,540 in agreed thrown-away costs within 28 days. The Commissioner expressly did not undertake a merits assessment of the issues originally disputed.
Key Takeaways
- A Class 1 appeal can be resolved by a s 34 agreement where the agreed decision is within the Court’s power.
- Affordable-housing bonuses under the Housing SEPP supported the approved height and FSR beyond the local planning controls.
- The Court’s consent implemented the parties’ agreement; it was not an independent merits ruling on the objections.
Why It Matters
The decision illustrates how amended plans and a negotiated agreement can resolve a deemed-refusal appeal, even after community objections and adverse design-panel feedback on the original scheme.
It also shows the practical effect of the Housing SEPP affordable-housing incentives for shop-top housing: the applicable state standards and bonuses displaced lower local height and FSR controls, subject to satisfaction of the statutory criteria and conditions of consent.