Bradley & Anor v Manly Council & Anor - [2007] NSWLEC 491

Land and Environment Court

of New South Wales

CITATION: Bradley & Anor v Manly Council & Anor [2007] NSWLEC 491

PARTIES:
APPLICANTS:
Gavin James Bradley and Sharyn Margery Bradley
FIRST RESPONDENT:
Manly Council
SECOND RESPONDENT:
Director General of the Department of Planning

FILE NUMBER(S): 10859 of 2006

CORAM: Lloyd J

KEY ISSUES: Development Application :- appeal - lodging house - residential dwelling - absence of concurrence - availability of sufficient comparable accommodation - financial viability - impact upon the stock of boarding house accommodation - room sizes for boarding houses - social and economic effects on the general community

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C
Land and Environment Court Act 1979 s 38(6)
Local Government Act 1919 Part XI
Public Health Act 1991
Public Health (General) Regulation 2002 cl 22(1)
State Environmental Planning Policy No. 10 - Retention of Low-Cost Rental Accommodation cl 7
Manly Local Environmental Plan 1988

CASES CITED: BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237;
Carstens v Pittwater Council (1999) 111 LGERA 1

DATES OF HEARING: 23/05/07; 24/05/2007 and 25/05/2007

DATE OF JUDGMENT:
10 August 2007

LEGAL REPRESENTATIVES:
APPLICANTS:
A E Galasso SC
SOLICITORS:
Deacons
FIRST RESPONDENT:
P C Tomasetti (barrister)
SOLICITORS
Pike Pike & Fenwick
SECOND RESPONDENT:
C J Leggat SC
SOLICITOR:
Christine Hanson
Department of Planning

JUDGMENT:

- 22 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Friday, 10 August 2007

LEC No. 10859 of 2006

Bradley & Anor v Manly Council & Anor [2007] NSWLEC 491

JUDGMENT

1 HIS HONOUR: The property at No. 51 Wood Street, Manly contains a Late Victorian two-storey masonry dwelling constructed around 1891. The dwelling is identified as an item of environmental heritage with local significance although no issues were raised in relation to the impact on the heritage significance of the dwelling. Over time the dwelling has been adapted and used as a private hospital, boarding house and a short-term budget guesthouse. The guesthouse provided, at low cost, a right to occupy a room with shared facilities, such as communal kitchen, bathrooms, laundry and other conveniences. The building is, however, unoccupied at present and has been unoccupied for some time.

Background facts

2 On or about 26 June 1984, Manly Council granted development consent for the use of the building as a “lodging house”, subject to a number of conditions. Condition 8 states:

Compliance with any further conditions of Council’s Health and Building Surveyor pertaining to those matters contained in Part XI of the Local Government Act [1919] or any Ordinance made thereunder.

3 On the same date, 26 June 1984, the council granted building approval under Part XI of the Local Government Act 1919 for alterations and additions to the subject building for use as a lodging house, subject to conditions. Conditions 15 of the building approval states:

(i) An application for a licence pursuant to the provisions of Ordinance 42 (Boarding Houses and Houses let in Longings) being…

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: [2007] NSWLEC 491
Decision Date: 10 August 2007

CaseChat Overview and Summary

Gavin James Bradley and Sharyn Margery Bradley, the applicants, sought an appeal against a decision of the Manly Council to refuse their development application to change the use of a boarding house to two residential dwellings. The applicants argued that the decision should be overturned as it was unreasonable and based on an incorrect interpretation of the relevant State Environmental Planning Policy. The Manly Council and the Director-General of the Department of Planning, the respondents, maintained that the decision was appropriate and in accordance with the relevant policy. The appeal raised three issues: whether the policy applied to the development, whether the development should be approved having regard to the policy, and issues raised by objectors. The Court found that the policy applied, that the development should be approved, and that the objectors' concerns were not valid. The Court found that the applicants' proposed use of the building was not financially viable. The Court also found that the loss of the existing units of low-rental accommodation on the site would be significant, but that there was sufficient comparable accommodation in the locality. The Court found that the development was not likely to cause adverse social and economic effects on the general community and that adequate arrangements had been made to assist any displaced residents. The Court found that the cumulative impact of the loss of low-rental residential accommodation in the council's area would not result in a significant reduction in the stock of that accommodation. The Court found that the structural soundness of the building was not an issue. The Court concluded that the considerations listed under sub-cl 7(4) were not determinative and must be balanced against the other considerations in the policy and the general considerations under s 79C(1) of the EP&A Act. The Court found that it would be unrealistic and contrary to the objectives of the Act to require an owner of a property to put it to an uneconomic use. The Court found that the continued use of the subject building for its approved use as a lodging house was not financially viable and that determining weight should be given to the objective of the promotion of the orderly and economic use of land. The Court found that there being no general merit considerations which might justify a refusal of the application, the appeal was allowed and development consent was granted to the applicants' development application, subject to conditions. The Court deleted two conditions relating to the keeping of domestic pets and the use of the property for holiday letting, as there was no evidence to support the imposition of such conditions. The Court amended a condition relating to the provision of a rainwater tank and added a condition requiring the window to the upper level bathroom at the eastern elevation to be provided with obscure glass.

Orders