Lord v Manly Council - [2010] NSWLEC 1223

Land and Environment Court

of New South Wales

CITATION: Lord v Manly Council [2010] NSWLEC 1223

PARTIES:
APPLICANT
Gary Lord
RESPONDENT
Manly Council

FILE NUMBER(S): 10068 of 2010

CORAM: Tuor C

KEY ISSUES: DEVELOPMENT APPLICATION :- new dwelling house
Compliance with floor space ratio, building wall height , number of storeys and setback controls in development control plan
Impact on residential amenity, particularly view loss

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Manly Local Environmental Plan 1988

DATES OF HEARING: 8 -10 June 2010

DATE OF JUDGMENT:
19 August 2010

LEGAL REPRESENTATIVES: APPLICANT
Mr A Galasso, SC
Instructed by Mr Sattler
of Sattler & Associated Pty Ltd

RESPONDENT
Ms C Schofield, solicitor
of Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

19 August 2010

10068 of 2010 Lord v Manly Council
JUDGMENT

1 Commissioner: This is an appeal against the refusal by Manly Council (the council) of a development application (103/09) to demolish an existing dwelling, swimming pool and garage and construct a new dwelling, double garage, swimming pool and landscaping works at 71 Bower Street, Manly (the site).

2 Council contends that the proposal has unacceptable visual bulk, view loss, privacy and overshadowing impacts due to its non compliance with the number of storeys, wall height, floor space ratio (FSR) and setback controls in Manly Development Control Plan for the Residential Zone 2007 Amendment 1 (the DCP).

The site and its locality

3 The site is located on the southern, upper side of Bower Street. It is trapezoid in shape and has a frontage of 16.365m to Bower Street and Montpelier Place, a depth of about 45.8m and a site area of 699sqm.

4 The site slopes down approximately 5.5m from Montpelier Place to Bower Street and has a moderate fall from east to west.

5 The site is developed with a two storey brick dwelling with a pitched tile roof. There is a swimming pool at the northern part of the site and two single garages that are accessed off a right of way from Montpelier Place.

6 Adjoining development to the east is a three storey house (69 Bower Street) and to the west is a two storey house (73 Bower Street). To the south, on the opposite side of Montpelier Place are recently completed houses that are two stories above basement car parking and storage.

7 The locality is a mixture of older residential flat buildings and detached houses.

Planning controls

8 The site is within Zone 2 Residential under Manly Local Environmental Plan 1988 (LEP1988). The proposal is permissible with consent.

9 The site is within a Foreshore Scenic Protection Area. Clause 17 of LEP 1988 requires that the development not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area.

10 The site is within Density and Height subzone 5 in the DCP. The DCP includes controls for FSR (cl 3.4), Building Height (cl 3.5), Setbacks (cl 3.6), Swimming pools and Spas (3.8), Sunlight…

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: [2010] NSWLEC 1223
Decision Date: 19 August 2010

CaseChat Overview and Summary

Gary Lord (Applicant) appealed against the Manly Council's (Council) refusal of a development application to demolish an existing dwelling, swimming pool and garage and construct a new dwelling, double garage, swimming pool and landscaping works at 71 Bower Street, Manly. The Council refused the application on the grounds of non-compliance with the floor space ratio (FSR), building wall height, number of storeys and setback controls in the Manly Development Control Plan for the Residential Zone 2007 Amendment 1 (DCP). The Council also contended that the proposal would have unacceptable visual bulk, view loss, privacy and overshadowing impacts. The Applicant argued that the proposal would not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area and would provide an appropriate transition in height between 69 and 73 Bower Street. The Court found that the proposal would exceed the numerical FSR control but would meet the objectives of the FSR control. The Court found that the proposal did not comply with the maximum wall height and the number of storeys in the DCP. The Court found that the proposal did not comply with the side setback control but that the variation in cl 3.6.5(a) did not apply. The Court found that the proposal would impact on the views to the properties in Montpelier Place, particularly Nos 7 an 8 but that reasonable view sharing is achieved with a reduction in the overall height of 600mm. The Court found that the proposal would not have an unacceptable impact on views from 69 and 73 Bower Street and that the privacy issues are addressed through privacy screens and are reasonable in the context of the site. The Court found that the proposal would not adversely impact on the scenic quality of the Foreshore Scenic Protection Area. The Court approved the development application subject to conditions.

Orders