Blackmore Design Group v Manly Council - [2008] NSWLEC 1330

Land and Environment Court

of New South Wales

CITATION: Blackmore Design Group v Manly Council [2008] NSWLEC 1330

PARTIES:
Applicant:
Blackmore Deign Group Pty Ltd
Respondent:
Manly Council

FILE NUMBER(S): 10408 of 2008

CORAM: Roseth SC

KEY ISSUES: Development Application :-

DATES OF HEARING: 21 August 2008

DATE OF JUDGMENT:
26 August 2008

LEGAL REPRESENTATIVES: Applicant:
Mr M Staunton, barrister
Respondent:
Ms C Schofield, solicitor of Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

26 August 2008

10408 of 2008 Blackmore Design Group 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 demolish the existing buildings and erect a five-storey retail/commercial/residential building on lot 1 DP 176052, lot 1 DP 934215 and lot 1 DP 902233, known as 53, 55 and 57 Pittwater Road, Manly.

2 The site is on the western side of Pittwater Road, between Denison and Carlton Streets. The rear boundary is to Kangaroo Lane. The site is flat and its area is 908m2. The existing buildings occupy the entire site and are vacant.

3 The adjoining site to the north is 59 Pittwater Road, where a Salvation Army building stands. To the north of that is another Salvation Army building that is a heritage item. The adjoining site to the south is 51 Pittwater Road, a residential flat development called the Manly Mews.

4 The surrounding area is a mix of terrace houses, single dwellings, shops and offices. There are also apartment buildings of three and five storeys and a four-storey former hotel.

5 The applicant proposes to demolish the existing buildings on the site and erect a partly two-storey and partly five-storey building containing shops, offices and apartments. The two-storey element faces Pittwater Road, while the five-storey element is to the rear.

6 The applicant lodged the development application in December 2007. Following notification, the council received 20 objections. The applicant lodged the appeal in April 2007. On 18 June 2008 the Court held a conciliation conference, pursuant to s34 of the Land and Environment Court Act 1979, at which five objectors (Mr R Lovett, Mr Eric and Mrs Elana Tu, Mr Paul Stevenson and Mr John Thompson) from Manly Mews were heard. The Owners’ Corporation for Manly Mews had retained a planning expert, Mr Ross Fleming, who also attended the conference. While the parties reduced their differences, they did not reach agreement. A further conference was held on 9 July 2008, at which there was still no agreement, however, the parties agreed to the Commissioner disposing of the proceedings as long as it would be after a further hearing. That hearing took place on 21 August 2008. At the hearing the applicant tendered a letter from Mr Fleming stating that the residents of Manly Mews were satisfied with the amended proposal.

7 State Environmental Planning…

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 1330
Decision Date: 26 August 2008

CaseChat Overview and Summary

Blackmore Design Group brought an action against the Manly Council in the Supreme Court of New South Wales. The dispute involved the approval of plans submitted for a development project. The Council had initially rejected the plans, prompting Blackmore Design Group to seek judicial review of the Council's decision. The legal issues at the heart of this matter were whether the Council's rejection of the plans was lawful and whether the applicant should be allowed to rely on amended plans. The court had to determine if the Council's decision was based on proper consideration of the relevant planning laws and if there were grounds for allowing the amended plans to be submitted.

In examining the case, the court considered the statutory framework governing planning approvals and the procedural fairness owed to applicants. It assessed whether the Council had adhered to the relevant legislative requirements and whether the rejection was supported by appropriate reasons. The court also evaluated the merits of permitting the submission of amended plans, taking into account the principles of procedural fairness and the need for a clear and transparent planning process. The court concluded that the Council's decision was procedurally flawed and that allowing the amended plans would not prejudice the Council's ability to properly assess the development application. Therefore, the court found in favour of the applicant.

The court granted the applicant leave to rely on amended plans, which meant that Blackmore Design Group could submit revised plans for the development project. This decision allowed the applicant to address the concerns raised by the Council and potentially secure approval for their project. The court's ruling was grounded in the need to ensure that the planning process was fair and that all relevant considerations were properly evaluated. The final orders of the court provided clarity and a path forward for the applicant, enabling them to proceed with their development in accordance with the amended plans.

Orders

Orders of the court

1. The applicant is granted leave to rely on amended plans.

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

Full text does not contain this section.

CITATION:	Blackmore Design Group v Manly Council [2008] NSWLEC 1330
PARTIES:	Applicant: Blackmore Deign Group Pty Ltd Respondent: Manly Council
FILE NUMBER(S):	10408 of 2008
CORAM:	Roseth SC
KEY ISSUES:	Development Application :-
DATES OF HEARING:	21 August 2008
DATE OF JUDGMENT:	26 August 2008
LEGAL REPRESENTATIVES:	Applicant: Mr M Staunton, barrister Respondent: Ms C Schofield, solicitor of Pike Pike & Fenwick