Luxe Manly Pty Ltd v Manly Council - [2016] NSWLEC 1167

Land and Environment Court

New South Wales

Medium Neutral Citation: Luxe Manly Pty Ltd v Manly Council [2016] NSWLEC 1167
Hearing dates: 4, 5 February 2016, submissions 19 February 2016
Date of orders: 06 May 2016
Decision date: 06 May 2016
Jurisdiction: Class 1
Before: Pearson C
Decision:
1. Leave is granted to the applicant to amend the development application to rely on the plans filed on 8 March 2016, being DA02, DA03, DA04, DA05, DA06, DA07, DA08, DA09, DA11, DA12, DA13, DA14, DA15, DA17, DA100, and DA22, all Issue F;
2. In accordance with s97B(2) of the Environmental Planning and Assessment Act 1979 the applicant is to pay the costs of the respondent thrown away as a consequence of the amendment of the application in order (1), in the agreed sum of $1;
3. In accordance with s97B(2) of the Environmental Planning and Assessment Act 1979 the applicant is to pay the costs of the respondent thrown away as a result of the amendment of the development application on 4 February 2016 to rely on the plans in exhibit F, being DA02, DA07, DA08, DA09, DA11, DA12, all Issue D1, as agreed or assessed;
4. The appeal is dismissed;
5. Development Application DA 243/14 for the consolidation of three lots and construction of two residential flat buildings at 138-139 North Steyne and 30 Bonner Avenue Manly is refused; and
6. The exhibits are returned except for exhibits A, F, G, 1, 6 and 8.

Catchwords: DEVELOPMENT APPLICATION: Site consolidation and construction of two residential flat buildings –Height – Impact on views – Bulk and scale – Setbacks - Privacy
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environmental Court Act 1979
State Environmental Planning Policy No 65 – Design Quality of Apartment Development
Manly Local Environmental Plan 2013
Cases Cited: Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153
Gillespies v Warringah Council (2002) 124 LGERA 147
Lane Cove Council v Orca Partners Management Pty Ltd (No 2) [2015] NSWLEC 52, (2015) 208 LGERA 114
Moskovich v Waverley Council [2016] NSWLEC 1015
Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7
Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21
Tenacity Consulting v Waverley Council [2004] NSWLEC 140
Category: Principal judgment
Parties: Luxe Manly Pty Ltd (Applicant)
Manly Council (Respondent)
Representation: Counsel:
Mr T To (Applicant)
Solicitors:
Beatty Legal Pty Ltd (Applicant)
Mr S Griffiths, Pikes and Verekers (Respondent)

File Number(s): 10797 of 2015

Judgment

This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of Development Application DA 243/14 for the consolidation of three lots and construction of two residential flat buildings at 138-139 North Steyne and 30 Bonner Avenue Manly (the site).
The application was lodged with the Council on 28 November 2014, and refused by the…

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: [2016] NSWLEC 1167
Decision Date: 06 May 2016

CaseChat Overview and Summary

The case of Luxe Manly Pty Ltd v Manly Council involved the applicant, Luxe Manly Pty Ltd, seeking approval for a development application to consolidate three lots and construct two residential flat buildings. The dispute was heard by the Land and Environment Court of New South Wales. The respondent, Manly Council, opposed the application and sought to have it dismissed.

The primary legal issue before the court was whether the applicant's development application should be amended to rely on specific plans filed on 8 March 2016, and whether the applicant should be required to pay costs associated with the amendment. The court was also required to decide on the overall merits of the development application, including whether it should be refused as proposed.

The court granted leave for the applicant to amend its development application to include the specified plans. It determined that the applicant should pay the costs associated with the amendment as per section 97B(2) of the Environmental Planning and Assessment Act 1979. The court dismissed the appeal and refused the development application in its current form. It concluded that the proposed development did not meet the necessary criteria for approval and ordered the return of exhibits, except for specified ones.

Orders

Orders of the court

1. Leave is granted to the applicant to amend the development application to rely on the plans filed on 8 March 2016, being DA02, DA03, DA04, DA05, DA06, DA07, DA08, DA09, DA11, DA12, DA13, DA14, DA15, DA17, DA100, and DA22, all Issue F;

2. In accordance with s97B(2) of the Environmental Planning and Assessment Act 1979 the applicant is to pay the costs of the respondent thrown away as a consequence of the amendment of the application in order (1), in the agreed sum of $1;

3. In accordance with s97B(2) of the Environmental Planning and Assessment Act 1979 the applicant is to pay the costs of the respondent thrown away as a result of the amendment of the development application on 4 February 2016 to rely on the plans in exhibit F, being DA02, DA07, DA08, DA09, DA11, DA12, all Issue D1, as agreed or assessed;

4. The appeal is dismissed;

5. Development Application DA 243/14 for the consolidation of three lots and construction of two residential flat buildings at 138-139 North Steyne and 30 Bonner Avenue Manly is refused; and

6. The exhibits are returned except for exhibits A, F, G, 1, 6 and 8.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Luxe Manly Pty Ltd v Manly Council [2016] NSWLEC 1167
Hearing dates:	4, 5 February 2016, submissions 19 February 2016
Date of orders:	06 May 2016
Decision date:	06 May 2016
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	1. Leave is granted to the applicant to amend the development application to rely on the plans filed on 8 March 2016, being DA02, DA03, DA04, DA05, DA06, DA07, DA08, DA09, DA11, DA12, DA13, DA14, DA15, DA17, DA100, and DA22, all Issue F; 2. In accordance with s97B(2) of the Environmental Planning and Assessment Act 1979 the applicant is to pay the costs of the respondent thrown away as a consequence of the amendment of the application in order (1), in the agreed sum of $1; 3. In accordance with s97B(2) of the Environmental Planning and Assessment Act 1979 the applicant is to pay the costs of the respondent thrown away as a result of the amendment of the development application on 4 February 2016 to rely on the plans in exhibit F, being DA02, DA07, DA08, DA09, DA11, DA12, all Issue D1, as agreed or assessed; 4. The appeal is dismissed; 5. Development Application DA 243/14 for the consolidation of three lots and construction of two residential flat buildings at 138-139 North Steyne and 30 Bonner Avenue Manly is refused; and 6. The exhibits are returned except for exhibits A, F, G, 1, 6 and 8.
Catchwords:	DEVELOPMENT APPLICATION: Site consolidation and construction of two residential flat buildings –Height – Impact on views – Bulk and scale – Setbacks - Privacy
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environmental Court Act 1979 State Environmental Planning Policy No 65 – Design Quality of Apartment Development Manly Local Environmental Plan 2013
Cases Cited:	Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153 Gillespies v Warringah Council (2002) 124 LGERA 147 Lane Cove Council v Orca Partners Management Pty Ltd (No 2) [2015] NSWLEC 52, (2015) 208 LGERA 114 Moskovich v Waverley Council [2016] NSWLEC 1015 Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Tenacity Consulting v Waverley Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Luxe Manly Pty Ltd (Applicant) Manly Council (Respondent)
Representation:	Counsel: Mr T To (Applicant) Solicitors: Beatty Legal Pty Ltd (Applicant) Mr S Griffiths, Pikes and Verekers (Respondent)
File Number(s):	10797 of 2015