Finlay v Manly Council - [2006] NSWLEC 224

Land and Environment Court

of New South Wales

CITATION: Finlay v Manly Council [2006] NSWLEC 224

PARTIES:
APPLICANT
John Finlay
RESPONDENT
Manly Council

FILE NUMBER(S): 11354 of 2005

CORAM: Moore C

KEY ISSUES: Development Application :-
Views
.

LEGISLATION CITED: Manly Development Control Plan for the Residential Zone 2001
Manly Local Environmental Plan 1988
.

CASES CITED: Tenacity Consulting v Waringah [2004] NSWLEC 140;
Savage v Manly Council [2005] NSWLEC 131;
Zhang v Canterbury City Council (2001) 115 LGERA 373;
.

DATES OF HEARING: 13 March 2006

EX TEMPORE JUDGMENT DATE: 03/13/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr A Sattler, solicitor
Sattler & Associates
RESPONDENT
Ms C Schofield, solicitor
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

13 March 2006

05/11354 John Finlay v Manly Council

JUDGMENT
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Manly Council (the council) of Development Application 361 of 2005 for the erection of an opening and closing roof structure - known as a Vergola - (with side enclosures) at the uppermost residential level of Unit 1, 73 Fairlight Street, Fairlight (the site).

2 Above the uppermost residential level on the site, there is a further level upon which is located a swimming pool and further outdoor living area. It was not necessary for the purposes of this appeal to inspect that area.

3 I had the opportunity of inspecting the site and also to inspect three of the bedrooms on the upper-level and the outdoor living area on the lower level of the adjacent property to the north (which is 75 Fairlight Street).

4 A number of matters are put in contention in the appeal. Several preliminary matters require determination in order to define the parameters within which I am to decide this matter.

5 They relate to a number of questions of interpretation and number of assumptions of fact.

6 First, there was an initial issue as to whether or not the proposed structure was an enclosure within the meaning of the Manly Development Control Plan for the Residential Zone 2001 (the DCP).

7 I ruled that, as it was not intended to have any material across the western face of the proposed structure, the structure was not an enclosure for the purposes of the DCP.

8 That finding has two effects. The first is that this proposed structure does not, in my assessment, bring into play the provision of the DCP which indicates that the council does not approve of the enclosure of verandas and similar areas.

9 The second is that the area of the floor under the proposed structure does not become incorporated into calculation of the floor space ratio of the existing building. Although the existing building, “as approved”, is in excess of the permitted floor…

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: [2006] NSWLEC 224
Decision Date: 13/03/2006

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard an appeal from John Finlay against the Manly Council's refusal of a development application to construct a Vergola structure at his residence. The primary legal issues revolved around whether the proposed structure constituted an enclosure under the Manly Development Control Plan and if it complied with the council's planning regulations aimed at minimizing disruption to views and maintaining sunlight for neighboring properties. The court also had to determine whether certain existing structures on the applicant's property were lawfully erected.

The court ruled that the proposed Vergola was not an enclosure as it was not intended to have material covering its western face. However, the side structures supporting the Vergola were deemed walls, resulting in a height exceedance. The court found that the proposed structure would cause a moderate impact on the views of neighboring properties, particularly affecting the views from the master bedroom and the second bedroom of the property directly to the north. This impact, combined with the non-compliance regarding wall height, led the court to conclude that the proposal's impact was unreasonable. Consequently, the court dismissed the appeal and refused the development application, highlighting that the glass walls of the structure, while beneficial for the applicant, were the primary reason for the refusal.

Orders