Codling v Manly Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Codling v Manly Council [2011] NSWLEC 1180
Hearing dates:	7 April 2011
Decision date:	07 April 2011
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	Appeal upheld
Catchwords:	DEVELOPMENT APPLICATION - function centre - conditions
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Codling v Manly Council [2010] NSWLEC 1299 Codling v Manly Council [2011] NSWLEC 57
Category:	Principal judgment
Parties:	John Codling (Applicant) Manly Council (Respondent)
Representation:	Solicitors Mr S Patterson (Applicant) Ms C Schofield (Respondent)
File Number(s):	10420 of 2010

EX TEMPORE Judgment

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) from the determination by Manly Council to refuse consent to Development Application 25/2009 for the fit out and minor alterations and additions to level 1 of the Manly Bathers Pavilion.

1. The background to the matter is as follows. The development application was lodged in February 2009 and amended by the applicant in May 2009. The Manly Independent Assessment Panel determined to refuse consent on 23 September 2009 and the applicant commenced proceedings in this Court. The contentions raised by the Council were first, that the proposed function centre on level 1 comprises a "water-based restaurant and entertainment facility" which is a use for a purpose which is not permissible under the applicable zoning under the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, and that consequently the proposed function centre use was prohibited. The second contention as put by the Council in its Statement of Facts and Contentions was that if the Court decides that the proposed development is permissible, the respondent raises no merit issues but reserves the right to formulate proposed conditions of consent.

1. The hearing of the matter commenced on site, and eight resident objectors gave evidence, including two whose primary concern was as penguin protectors for a small colony of Little Penguins nesting in the foreshore area adjacent to the Manly Bathers Pavilion. The evidence heard on site was generally consistent with, and supportive of, the 71 written submissions received by the Council during the course of its consideration of the application.

1. The nature of the written submissions, and the evidence given on site, is summarised at paragraphs [24]-[25] of my decision at first instance in this matter ( Codling v Manly Council [ 2010] NSWLEC 1299):

24 The Council publicly notified the amended development application and received 71 written submissions. Those submissions raised concerns as to noise impact on adjoining residences and the penguin habitat; inadequate parking; increase in pedestrian traffic using the boardwalk; impact of construction work on penguin habitat and disturbance to the penguin colony during nesting and the breeding season; impact on public use of the boardwalk; impact on the penguin habitat from smokers and from light; impact of deliveries; heritage impact; and an increase in anti-social behaviour in adjoining streets.

25 The hearing commenced on site where evidence was given by eight…