Lane v Manly Council - [2009] NSWLEC 1329

Land and Environment Court

of New South Wales

CITATION: Lane v Manly Council [2009] NSWLEC 1329

PARTIES:
APPLICANTS
Tom Lane
Emma Lane
RESPONDENT
Manly Council

FILE NUMBER(S): 10997 of 2008

CORAM: Murrell C

KEY ISSUES: DEVELOPMENT APPLICATION :- erection of residential flat building in open space zone; existing use rights; impact on adjoining open space, street and foreshore; and view loss.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Manly Local Environmental Plan 1988
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

CASES CITED: Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587
Ashfield Municipal Council v L Armstrong [2003] NSWCA 353
Ashfield Municipal Council v Armstrong [2002] NSWCA 269
Royal Agricultural Society of NSW v Sydney City Council [1987] NSWCA
Shire of Perth v O'Keefe and Anor [1968 Vol 110 CLR] WASC

DATES OF HEARING: 31 March 2009, 1 April 2009 & 21 April 2009 (outstanding documents filed)

DATE OF JUDGMENT:
7 October 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr P Rigg (solicitor)
SOLICITOR
Deacons
RESPONDENT
Mr S Griffiths (solicitor)
SOLICITOR
Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

7 October 2009

10997 of 2008 Tom and Emma Lane v Manly Council
JUDGMENT

1 The applicant in these proceedings is seeking to demolish the existing structures on the site known as number 38 Stuart St Manly and erect a building containing two residential units with a garage and a swimming pool. The subject site is zoned open space under the Manly Local Environmental Plan and the applicant relies on existing use rights

2 The proposal is referred to in the development application form as: demolition of an existing residential flat building and construction of a 2 and 3 storey residential flat building comprising two units including double garage, swimming pool and associated site landscaping.

3 The application involves the demolition of the existing 2-storey four unit residential flat building, removal of trees and construction of a 3-storey building comprising one x four bedroom unit and one x two bedroom unit with a double garage and elevated access way/driveway bridge.

4 The ground floor is set one storey below the street level at RL 3.3 m and is comprised of the living areas of the larger of the two units. The ground floor includes living area and dinning area, kitchen, staircase, lift, study, plant room, laundry and bathroom. The side setbacks at this level are generally between 920 mm to 2.12 mm on the south east side boundary and 900 mm to 1.9 mm on the north west side boundary.

5 The second floor includes four bedrooms, bathrooms, foyer area, lift and staircase. Separate stairs provide access to the two bedroom unit on the third storey. Adjoining the living area of the top floor unit there is a deck of 5.3 by 1.5 facing the beach and Harbour and there is also a deck adjoining the bedroom of 2.2 by 5.3 facing the street. At Figure 5 shows the elevations of the proposed building.

Site…

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: [2009] NSWLEC 1329
Decision Date: 7 October 2009

CaseChat Overview and Summary

Tom and Emma Lane are seeking to demolish the existing structures on their property at 38 Stuart St Manly and construct a two unit residential flat building with a garage and a swimming pool. The site is zoned open space under the Manly Local Environmental Plan 1988 and the Lanes rely on existing use rights. The key issues before the court were whether the proposal could rely on existing use rights, whether the proposal would have excessive bulk and height, whether the proposal would have inadequate setbacks, whether the proposal would adversely impact on the adjoining open space, street and foreshore, and whether the proposal would result in view loss. The court found that the proposal was a residential flat building and was entitled to rely on existing use rights. The court also found that the proposal would not have excessive bulk and height, would have adequate setbacks, would not adversely impact on the adjoining open space, street and foreshore, and would result in only minor view loss. The court granted consent subject to conditions including a requirement to delete existing stairs to the beach, a maximum height of 1.2 m for the side boundary fence with number 36, and a requirement to amend the landscape plan to show certain red markings.

Orders