Beluga Property v Manly Council - [2008] NSWLEC 1392

Land and Environment Court

of New South Wales

CITATION: Beluga Property v Manly Council [2008] NSWLEC 1392

PARTIES:
Applicant:
Beluga Property Pty Ltd
Respondent:
Manly Council

FILE NUMBER(S): 10705 of 2008

CORAM: Roseth SC

KEY ISSUES: Development Application :- variation of DCP controls, innovative design

DATES OF HEARING: 1 October 2008

DATE OF JUDGMENT:
8 October 2008

LEGAL REPRESENTATIVES: Applicant:
Mr D Brigden, solicitor of Holding Redlich Solictors
Ms C Schofield, solicitor of Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

8 October 2008

10705 of 2008 Beluga Property Pty Ltd v Manly Council
JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Manly Council (the council) of a development application to consolidate lots 1 and 2 DP 602702, construct three three-storey dwelling houses and subdivide the consolidated land into three allotments after the construction of the dwellings, at 10 and 10A Addison Road, Manly.

2 The two allotments form a trapezoidal shape on the southeast side of Addison Road. The site’s frontage is 30.5m; its width is 24m; its area is 1,552m2. The rear boundary adjoins Little Manly Cove. The site has a level platform towards the street and a tiered cliff face towards the water. It is vacant, two dwellings having recently been demolished on it. The only vegetation is a cheese tree near the street.

3 Adjoining the site to the northeast are two detached houses, 12 and 14 Addison Road. Adjoining to the southwest is an apartment building, 8 Addison Road. Addison Road is a cul-de-sac and the site is near the cul-de-sac end. At the end of the cul-de-sac, No 1 is a tall white apartment building, which, because of its unusual circular shape, is a landmark on Sydney Harbour. The building is now a heritage item. No 2 Addison Road, known as the Mandalay Private Hospital and a more traditional old building, is also a heritage item. There are several apartment buildings in the street, ranging from three to eight storeys high. There are also detached houses of one and two storeys.

4 The site is habitat for Little Penguins and Long Nosed Bandicoots, both of which are threatened species.

5 The applicant proposes to

· amalgamate the two existing allotments;

· erect three detached dwelling houses; and

· subdivide the amalgamated site into three allotments.

6 Parking for two cars for each house is at grade near the street frontage. No basement excavation is proposed. The cliff face is kept clear of development.

7 The council, and the Court on appeal, refused a development application for the site in 2005. The council approved an application in 2006 for a two-storey apartment building containing six dwellings, with rooms in the roof and over basement parking. That consent is extant.

8 The applicant lodged the subject application in February 2008. The proposal was notified several times and the council received representations from six households. Since the council considered the…

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: [2008] NSWLEC 1392
Decision Date: 8 October 2008

CaseChat Overview and Summary

Beluga Property Pty Ltd appealed the Manly Council's refusal of a development application to consolidate lots, construct three three-storey dwelling houses, and subsequently subdivide the consolidated land into three allotments. The site, located at 10 and 10A Addison Road, Manly, is a trapezoidal shape with a frontage of 30.5m and a width of 24m, totalling 1,552m². The site is adjacent to Little Manly Cove and is currently vacant with minimal vegetation. The key issues in contention were whether the subdivision pattern was inconsistent with existing patterns, the character and streetscape impact, compliance with the Residential Development Control Plan (DCP), and the appearance from the foreshore.

The applicant's proposal included three detached three-storey houses, with parking for two cars per house at grade level near the street. The cliff face was to remain clear of development. The council had previously refused a similar application in 2005 and approved a two-storey apartment building in 2006. The applicant lodged the current appeal in February 2008, which the council subsequently refused in September 2008. The applicant appealed this decision to the Land and Environment Court.

The court found that the proposed allotments, though narrower than most in the area, were not significantly different from some existing allotments, and the subdivision after building completion allowed for a fair assessment of environmental performance. The court held that the proposal provided an innovative form of medium-density housing and did not compromise neighbours' amenity to a greater extent than the previously approved apartment building. The proposal complied with the Residential DCP in most respects, with any non-compliances justified to accommodate the innovative housing form. The court also found that the proposal did not adversely impact the streetscape or the view from Little Manly Point and the harbour.

The court concluded that the appeal was upheld, and the development application was approved subject to the conditions outlined in Annexure A. The exhibits were returned, except for specific ones mentioned in the judgment.

Orders