Dixon v Manly Council

[2005] NSWLEC 575

Land and Environment Court

of New South Wales

CITATION:

Dixon v Manly Council [2005] NSWLEC 575

PARTIES:

APPLICANT
Ken and Susie Dixon

RESPONDENT
Manly Council

FILE NUMBER(S):

10622 of 2005

CORAM:

Murrell C

KEY ISSUES:

Development Application :- over-development - height - bulk - streetscape - character of area

DATES OF HEARING:

30/09/2005

EX TEMPORE JUDGMENT DATE:

09/30/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr K Webber, solicitor

RESPONDENT
Ms L Finn, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

30 September 2005

10622 of 2005 Ken and Susie Dixon v
Manly Council

JUDGMENT

1 This matter has come before me this morning as an appeal under s 97 of the Environmental Planning and Assessment Act. The Court has the benefit of a site inspection and an extensive walk of the area and the Court is today assessing the amended plan. Together with the amended plan there has been a concept landscape plan submitted by the applicant, and also a materials, finishes and colours schedule to provide further details to the architectural plan, Exhibit A, prepared by Add-Style Home Additions.

2 The Council today informed the Court that it has no objection to the development noting that there has been an amended plan to these proceedings. It is also noted that there are no objections to the proposal.

3 The site is known as 67 Ernest Street, Balgowlah Heights, and is located on the southern side of the street at the south eastern corner of the intersection with Lewis Street. The site has a primary frontage to Ernest Street of 18 m and a secondary frontage to Lewis Street of approximately 11½ m.

4 The site is generally rectangular in shape and from the site inspection it could be seen that the area of the site, being 419 sq m, is considerably smaller than many sites in the area. Therefore one cannot expect the same size dwelling as occurs on many of the other larger allotments and the size of the dwellings should generally be commensurate with the size of the lots.

5 The subject proposal slightly exceeds council’s floor space ratio control but there are no adverse impacts in terms of overshadowing to adjoining properties. Also with the amended plan, the bulk of the proposed development and the height of the proposal is considered appropriate in the context of the streetscape and area.

6 The subject site is within the Residential 2(a) area under the Manly Local Environmental Plan and single dwellings are permissible with consent. The proposal is for alterations and addition to the existing single storey dwelling to allow a second storey addition. The main issue in the proceedings was that of streetscape. The amended plans have the effect of ameliorating the height of the dwelling for the second storey addition at the corner above the garage area. This is achieved by relocating the gable at that point in a westerly direction such that it is a smaller gable and therefore the roof line above the garage at this point where the corner second storey element sits will have a roof that runs back from the streets and therefore the impact of the height and bulk is reduced on the streetscape.

7 I am satisfied that the proposal is one that will sit comfortably in the streetscape. I have had the benefit of also appreciating the change occurring in the area in terms of alterations and additions to other dwellings and I am of the view that the proposal will not be an aberration, it will not represent an over development and it will not represent a dwelling that is larger for its site than many dwellings that are currently being altered some with extensive additions being made to dwellings.

8 The area is one that is steeply sloping and the site is located towards the crest of the hill and views towards Manly can be achieved from many dwellings in the area, in particular the second floor of such dwellings.

9 The Court is satisfied that the amended plan achieves the objectives of the council’s planning controls and in that regard it is appropriate that the Court grant consent to the proposed development.

10 As I stated the issues initially in the proceedings related to the floor space ratio and I am satisfied the proposal is not an overdevelopment. Whilst it may not strictly comply, it is satisfactory and the height in terms of the proposal has been ameliorated by the amendments to the plan from a streetscape point of view. In my assessment the proposal will sit comfortably in the streetscape on a corner site. On the opposite corner there is also a proposal for alterations and additions to the dwelling, although it is noted that those alterations and additions are for a much larger allotment.

11 The proposal must also comply with the aims and objectives of Council’s Development Control Plan and the LEP and in that regard the Court has the benefit of reading the various controls and instruments and the development with the amendments as now proposed is one that is not inconsistent or incompatible with those provisions.

12 Therefore on the basis of the evidence to the Court of the amended plan and with the benefit of a site inspection and council’s planning framework and regime being clearly articulated to the Court at the on site meeting, the formal orders of the Court are:

1. The appeal in respect of the property known as No. 67 Ernest Street, Balgowlah Heights, is upheld.
2. The development application submitted to Manly Council and as amended, and shown in Exhibits A, B and C, is approved subject to the conditions in Annexure A.
3. The exhibits retained for the Court file are: Exhibits A; B; C; 1 and 2.
____________________
J S Murrell
Commissioner of the Court
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