Alan Do Rozario v Manly Council - [2006] NSWLEC 370

Land and Environment Court

of New South Wales

CITATION: Alan Do Rozario v Manly Council [2006] NSWLEC 370

PARTIES: APPLICANT:
Alan Do Rozario
RESPONDENT:
Manly Council

FILE NUMBER(S): 10102 of 2006

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Density, bulk and side setbacks
Overshadowing
Overdevelopment
Character of Area

LEGISLATION CITED: Manly Local Environmental Plan 1988, (MLEP)
Manly Development Control Plan for the Residential Zone 2001, Amendment 1, (RDCP)
Manly Development Control Plan for Energy Efficient Buildings, (DCPEEB)
Environmental Planning and Assessment Act 1979, ss 79C and 97

CASES CITED: Allan Robert Cooley and Janet Louise Patterson v City of Sydney Council [2006] NSWLEC 55;
Saxer v North Sydney Municipal Council (1988) 25 APAD 311;
Meriton v Sydney City Council [2004] NSWLEC 313

DATES OF HEARING: 16/06/2006

EX TEMPORE JUDGMENT DATE: 06/16/2006

LEGAL REPRESENTATIVES: APPLICANT:
Mr A Sattler, solicitor
SOLICITORS:
Sattler & Associates Pty Limited
RESPONDENT:
Ms C Schofield, solicitor
SOLICITORS:
Pike Pike and Fenwick Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

16 June 2006

10102 of 2006 – Alan Do Rozario v Manly Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of Manly Council (the council) to refuse a development application to demolish the existing dwelling, to Torrens title subdivide and to erect two attached dwelling houses on Lot 16, DP1069173, being No 141 Balgowlah Road, Balgowlah.

2 I visited the land in company with the parties on the morning of the on-site hearing.

3 I concluded on-site that the application should succeed as the proposal complies with the council’s requirements including floor space ratio (FSR) and the side setbacks comply on one interpretation and by bifurcating the driveway the street tree is retained. This judgment reflects that finding.

The land

4 The land is situated on the southern side of Balgowlah Road between Hill and Boyle Streets. It has a street frontage of 12.190m, a depth of around 40.23m and an area of 490.4m2. It slopes down to the street with a fall of about 2m (10.68m AHD in SW corner to 8.79m AHD in NE corner).

5 Erected on the land is a single-storey brick detached dwelling with a pitched tiled roof and driveway to open parking along the eastern side of the dwelling.

6 The subject land is in the vicinity of mainly residential development, comprising a mix of with single-storey dwellings adjoining to the east and west, Manly West Public School to the south, a residential flat building nearby to the east and Manly Golf Club links and industrial properties to the north on the other side of the road.

7 A Butterfly tree, Bauhinia variegata is growing in the council’s verge in the centre of the frontage. This tree is estimated around 30 to 40 years old, and has been pruned to avoid the overhead wires. The height of this tree has been estimated to be around 4m with a spread of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWLEC 370
Decision Date: 16/06/2006

CaseChat Overview and Summary

In Alan Do Rozario v Manly Council, the applicant sought approval for a development application involving the demolition of an existing dwelling and the construction of two attached dwelling houses. The respondent, Manly Council, initially denied the application, which led the applicant to appeal to the Land and Environment Court. The applicant, Alan Do Rozario, contested the council’s decision, arguing that the refusal was unreasonable and that the application should be approved under the provisions of the Environmental Planning and Assessment Act 1979. The primary legal issues before the court were whether the council's decision to refuse the development application was legally sound and whether the applicant's proposal complied with relevant planning and environmental laws.

The court examined the statutory and policy framework governing the development application, including zoning provisions, environmental impact considerations, and the merits of the applicant’s proposal. It assessed the evidence presented by both parties and evaluated the council’s reasoning for its decision. The court found that the council's refusal was not supported by sufficient evidence and that the applicant's proposal was consistent with the objectives of the relevant planning instruments. Consequently, the court determined that the appeal should be upheld, and the development application should be approved subject to certain conditions.

Following its analysis, the court concluded that the appeal was well-founded and that the applicant's proposal met the necessary criteria for approval. The court's decision was grounded in the statutory framework and the principles of reasonableness and fairness in administrative law. The court ordered that the appeal be upheld, the development application be approved, and that the decision be subject to specific conditions designed to mitigate any adverse environmental or planning impacts. The court also directed that certain exhibits be returned to the parties, excluding those that were deemed irrelevant or unnecessary for the appeal’s resolution.

Orders

Orders of the court

56 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No 222/05 lodged with the respondent council on 2 June 2005, to demolish the existing dwelling, to Torrens title subdivide the land and to erect two attached dwelling houses on Lot 16, DP1069173, being No 141 Balgowlah Road, Balgowlah, is approved subject to Conditions 1 to 73 in Annexure A.

3. The exhibits except for Exhibits A, E, 8, 10, 11 and 14 are returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Alan Do Rozario v Manly Council [2006] NSWLEC 370
PARTIES:	APPLICANT: Alan Do Rozario RESPONDENT: Manly Council
FILE NUMBER(S):	10102 of 2006
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Density, bulk and side setbacks Overshadowing Overdevelopment Character of Area
LEGISLATION CITED:	Manly Local Environmental Plan 1988, (MLEP) Manly Development Control Plan for the Residential Zone 2001, Amendment 1, (RDCP) Manly Development Control Plan for Energy Efficient Buildings, (DCPEEB) Environmental Planning and Assessment Act 1979, ss 79C and 97
CASES CITED:	Allan Robert Cooley and Janet Louise Patterson v City of Sydney Council [2006] NSWLEC 55; Saxer v North Sydney Municipal Council (1988) 25 APAD 311; Meriton v Sydney City Council [2004] NSWLEC 313
DATES OF HEARING:	16/06/2006
EX TEMPORE JUDGMENT DATE:	06/16/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr A Sattler, solicitor SOLICITORS: Sattler & Associates Pty Limited RESPONDENT: Ms C Schofield, solicitor SOLICITORS: Pike Pike and Fenwick Lawyers