Codling v Manly Council - [2010] NSWLEC 1299

Land and Environment Court

of New South Wales

CITATION: Codling v Manly Council [2010] NSWLEC 1299

PARTIES:
APPLICANT
John Codling
RESPONDENT
Manly Council

FILE NUMBER(S): 10420 of 2010

CORAM: Pearson C

KEY ISSUES: DEVELOPMENT APPLICATION :-

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Environmental Planning and Assessment Model Provisions 1980
Standard Instrument (Local Environmental Plans) Order 2006
Manly Local Environmental Plan 1988

CASES CITED: Shire of Perth v O'Keefe (1963) 110 CLR 528
Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400
Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305
Matic v Mid Western Regional Council [2008] NSWLEC 113
Optima Developments Pty Ltd v Lake Macquarie City Council [2003] NSWLEC 224
Solicitor General for New South Wales v Foodbarn Pty Ltd (1972) 32 LGRA 130
Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404
Maxnox Pty Ltd v Hurstville City Council (2006) 145 LGERA 373

DATES OF HEARING: 20, 21 October 2010

DATE OF JUDGMENT:
1 December 2010

LEGAL REPRESENTATIVES: APPLICANT
Mr G Newport
Instructed by Mr S Patterson
Wilshire Webb Staunton Beattie
RESPONDENT
Ms S Duggan SC
Instructed by Ms C Schofield
Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

1 December 2010

10420 of 2010 Codling v Manly Council
JUDGMENT

1 Commissioner: This is an appeal pursuant to s97(1) of the Environmental Planning and Assessment Act 1979 (the Act) from the determination by Manly Council (the Council) to refuse consent to Development Application 25/2009 for the “fitout, minor alterations and additions to Level 1 of the Manly Bathers Pavilion”.

2 The development application was lodged in February 2009. The applicant lodged amended plans in May 2009. A report to the Manly Independent Assessment Panel dated 17 September 2009 recommended deferred commencement approval of the application. On 23 September 2009 the Manly Independent Assessment Panel refused consent, on the ground that “the Council has no power to approve the application pursuant to the Existing Use provisions of the Environmental Planning and Assessment Act 1979 and Regulations”.

3 The issue between the parties is whether the proposed development is permissible under the applicable planning controls. It is common ground that if it is, there are no merits issues that would warrant refusal, and the parties have reached agreement on the conditions to be imposed. Those conditions include conditions relating to sound proofing and operation of external doors and windows, operation of louvres, implementation of a construction management plan, limitation of hours of construction work, provision of an external smoking area, and implementation of a Little Penguin monitoring program.

The site and its locality

4 The Manly Bathers Pavilion is located on the western side of Manly Cove. The site on which it is located comprises of two allotments, lots 1 and 2 in DP 1019352, is irregular in shape, and has a total area of approximately 1,712sqm. Most of the site is located beyond the mean high water…

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.

Keep reading for free

Create a free CaseChat account to read Codling v Manly Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] NSWLEC 1299
Decision Date: 1 December 2010

CaseChat Overview and Summary

The applicant, John Codling, appealed against the decision of the Manly Council to refuse consent to a development application for the fitout, minor alterations and additions to Level 1 of the Manly Bathers Pavilion. The primary issue for the court to decide was whether the proposed development was permissible under the applicable planning controls. The court had to determine whether the proposed development was a permissible "land/water interface development" under the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. The applicant argued that the proposed use was permissible under the innominate purpose of "commercial premises." The council submitted that the proposed use for a function centre was a "water-based restaurant and entertainment facility," which is a prohibited use in the W2 zone. The court considered the evidence and submissions from both parties and concluded that the proposed use of level 1 for a function centre was a "water-based restaurant and entertainment facility," which is a prohibited use in the W2 zone. The court also found that the use for the purpose of a conference facility was permissible as an innominate use but would be ancillary to the function centre. As neither proposed use was ancillary to the other, the court concluded that development consent could not be granted. The court dismissed the appeal and refused the development application.

Orders