Allen Jack & Cottier v Manly Council - [2006] NSWLEC 288

Land and Environment Court

of New South Wales

CITATION: Allen Jack & Cottier v Manly Council [2006] NSWLEC 288
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Allen Jack & Cottier
RESPONDENT
Manly Council

FILE NUMBER(S): 11025 of 2005

CORAM: Tuor C

KEY ISSUES: Development Application :- Conditions of consent
heritage impact
dedication of land for road widening

LEGISLATION CITED: Manly Local Environmental Plan 1988

DATES OF HEARING: 29/05/2006

EX TEMPORE JUDGMENT DATE: 05/29/2006

LEGAL REPRESENTATIVES: APPLICANT
Mrs ML Taylor, solicitor
of Norman Waterhouse, Lawyers

RESPONDENT
Ms C Bracks, solicitor
of Abbott Tout, Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

29 May 2006

11025 of 2005 Allen Jack & Cottier v Manly Council

JUDGMENT

1 COMMISSIONER: On 6 February 2005, Manly Municipal Council (the council) approved a development application (DA 508/04) for alterations and additions to an existing cottage and construction of a residential flat building at 118 North Steyne, Manly (the site). This is an appeal against conditions imposed on the consent.

2 This judgment is a record of findings, which were given on site. Council provided a position paper at the hearing prepared by Mr D May, Manager Development Assessment. The applicant filed a position paper prepared by Mr S Davies, heritage consultant and Ms K Mount Stephens, architect for the proposal. These experts provided evidence on site.

3 The site, its context, the history of the application and the planning controls are set out in the Statement of Basic Facts. The cottage is listed as a heritage item under Manly Local Environmental Plan 1988 (LEP 1988)

Conditions

4 The majority of the conditions were resolved by the parties. The following conditions remained in dispute:

5 Condition ANS02

The rear chimney and fireplace should be retained or rebuilt in order to retain the character and aesthetic appearance of the cottage and the plans are to be notated accordingly prior to the submission of the Construction Certificate.

6 The condition requires either the retention or rebuilding of the chimney which council considers to be an important streetscape element and part of the significance of the item.

7 I find that the imposition of the condition is not reasonable. It requires either the retention or rebuilding of both the chimney and the fireplace. The rear of the cottage has been approved for demolition and it would not be feasible to retain the chimney and the fireplace. The rebuilding of the fireplace in its current location would require replanning of the new addition as it would block a hallway off the laundry. If only the chimney were to be rebuilt this would impose structural constraints. The contribution that the chimney makes to the streetscape and the significance of the item does not warrant it being rebuilt considering the constraints it would impose on the development and that two other chimneys are being retained in the front section of the house.

8 Condition…

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.

Keep reading for free

Create a free CaseChat account to read Allen Jack & Cottier v Manly Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWLEC 288
Decision Date: 29/05/2006

CaseChat Overview and Summary

In the case of Allen Jack & Cottier v Manly Council, the Land and Environment Court of New South Wales heard an appeal against the conditions imposed by Manly Council on a development application concerning alterations and additions to an existing cottage and the construction of a residential flat building at 118 North Steyne, Manly. The applicant, Allen Jack & Cottier, contested several conditions attached to the approval of their development application, which had been granted by the council on 6 February 2005. The key legal issues before the court were whether the conditions imposed on the consent were reasonable and aligned with the planning and heritage considerations applicable to the site.

The court examined the reasonableness of three specific conditions: ANS02, which required the retention or rebuilding of the rear chimney and fireplace; ANS03, which mandated the deletion of a proposed balcony with a louvred shutter; and DA353, which sought the dedication of a portion of the site for road widening. The applicant argued that the conditions were unreasonable due to practical constraints and the potential negative impact on the heritage significance of the cottage. The council defended the conditions on the grounds of maintaining the streetscape, preserving the roof's form, and facilitating road realignment.

The court found that Condition ANS02 was unreasonable as it would not be feasible to retain or rebuild the chimney and fireplace given the proposed demolition of the rear of the cottage and the structural constraints involved. Similarly, Condition ANS03 was deemed unreasonable as the proposed recessed balcony with an openable screen would not significantly alter the roof's form and would provide an acceptable view from the bedroom. Lastly, Condition DA353 was also found to be unreasonable as the council's request for land dedication was not supported by the planning framework or heritage considerations.

In summary, the court upheld the appeal and approved the development application with specific conditions as outlined in Annexure "A". The court's decision provided clarity on the reasonable application of conditions in relation to heritage preservation and planning considerations, leading to a fair resolution for both parties.

Orders