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 ANS03

The proposed the balcony with louvred shutter off the proposed bedroom in the-roof space is to be deleted in order to maintain the existing roof which is an important element of the cottage and the plans are to be notated accordingly prior to the submission of the Construction Certificate.

9 Council agreed that a balcony off the bedroom in the roof to take advantage of the views was a reasonable expectation in this location. It opposed alteration to the form of the roof such as a dormer window and did not support a recessed balcony, without screening. The form of the roof is identified in the statement of significance as part of the significance of the item. The proposal provides a recessed balcony with a louvred screen which when closed will maintain the appearance and form of the roof.

10 The parties agreed that the screen could be openable but held different opinions as to the manner in which this should occur. The applicant proposed that the screen should lift up whereas council considered that it should slide. Due to the slope of the roof the applicant stated that while a sliding screen was feasible it would reduce the size of the opening and be more difficult to detail to work efficiently.

11 I find that on the basis that the parties agree that a balcony is acceptable and that the screen can be openable, either option would have an acceptable impact on the significance of the item. There is therefore no planning or heritage basis to amend the proposal as required by the condition.

12 Condition DA353

The applicant/owner shall enter into a legal agreement to transfer to Council at no cost that portion of the site affected by the road widening of North Steyne. This legal agreement, to be prepared at the applicant’s/owners expense by Council’s Solicitors, is required to be executed prior to the issue of a Construction Certificate and the transfer is to occur prior to the occupation of the building.

13 The council’s position paper refers to a Road Widening Plan which has applied to North Steyne since the 1950s. This road widening is not reflected in LEP 1998 or in a s94 plan. The basis for seeking the dedication of the land is that “council has made significant concessions to the applicant” in granting the consent. This is not a basis for requiring dedication of land. The development is a significant redevelopment of the site but this does not of itself generate the need for the road realignment or enable dedication of land.

14 On heritage grounds the dedication is not supported as it would reduce the curtilage of the house to the front steps, removing its front garden. While council has indicated that the land would be used to provide a landscaped buffer between the road and the house, no plans were provided which illustrated how this would occur. I am satisfied that the retention of the land as part of the front garden of the item would provide a landscape buffer and not preclude a footpath being designed to meander around the site.

15 The imposition of the condition is not reasonable.

Orders

16 For the above reasons the Orders of the Court are:

1. The appeal is upheld.
2. The development application (DA 508/04) for alterations and additions to the existing timber cottage and erection of a six (6) storey residential flat building with basement parking at 118 North Steyne, Manly, is approved subject to the conditions at Annexure “A”.
3. The exhibits, except exhibits 1 and B, may be returned.

__________________
Annelise Tuor
Commissioner of the Court

27/06/2006 - judgment not attached - Paragraph(s) 1-16