McKees Project Management Pty Ltd v Manly Council - [2012] NSWLEC 1126

Land and Environment Court

New South Wales

Medium Neutral Citation: McKees Project Management Pty Ltd v Manly Council [2012] NSWLEC 1126
Hearing dates: 5, 6.7 March 2012
Decision date: 22 May 2012
Jurisdiction: Class 1
Before: Brown ASC
Decision:
1. The appeal is dismissed.
2. Development Application No. 64/2011 for the demolition of all existing structures, consolidation of three lots, construction of two buildings containing a total of 17 dwellings of affordable and other housing at 23 Beatrice Street, Clontarf is refused.
3. The exhibits are returned with the exception of exhibit 13

Catchwords: DEVELOPMENT APPLICATION: demolition of all existing structures, consolidation of three lots, construction of two buildings containing a total of 17 dwellings of affordable and other housing - whether compatible with "character of the local area" - impact on the amenity of surrounding residences - unacceptable tree loss - ineffective delivery of affordable housing
Legislation Cited: Environmental Planning and Assessment Act 1979
Manly Development Control Planning for the Residential Zone 2Manly Local Environmental Plan 1988
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy No. 65
Sydney Harbour Harbour and Waterways Area Development Control Plan 2005
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Cases Cited: Peninsula Development Australia Pty Limited v Pittwater Council [2011] NSWLEC 1244
Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191
Zhang v Canterbury City Council (2001) 115 LGERA 373
Category: Principal judgment
Parties:
McKees Project Management Pty Ltd (Applicant)
Manly Council (Respondent)
Representation:
Counsel
Mr A Galasso SC (Applicant)

Mr M Staunton, barrister (Respondent)
Solicitors
McKees Legal Solutions (Applicant)
Pikes Lawyers (Respondent)

File Number(s): 10839 of 2011

Judgment

ACTING SENIOR COMMISSIONER: This is an appeal against the refusal by the Joint Regional Planning Panel on 27 July 2011 of Development Application No. 64/2011 for the demolition of all existing structures, consolidation of three lots, construction of two buildings containing a total of 17 dwellings of affordable and other housing above two levels of basement car parking containing 27 car parking spaces, 3 visitor car parking spaces, swimming pools, plant rooms and landscaping at 23 Beatrice Street, Clontarf (the site). To address the question of the impact on the character of the local area, the applicant provided hypothetical plans for dwellings on each of the existing three lots.

The contentions can be summarised as:

incompatibility of the proposed development with the character of the local area, when viewed from Beatrice Street, adjoining residential properties, Middle Harbour, The Spit and Parriwi Head,
unacceptable impact on the amenity of surrounding residences through overshadowing and loss of privacy,
poor internal amenity,
unacceptable tree loss,
ineffective delivery of affordable housing,

Contentions relating to geotechnical issues and traffic and parking were addressed to the satisfaction of council through further information and amendments to the application.

The site and surrounding area

The site comprises three separate lots, Lots 74, 75 and 76 in DP 9517 and is irregular in shape with the Beatrice Street frontage of 45.72 m, a northern boundary of…

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: [2012] NSWLEC 1126
Decision Date: 22 May 2012

CaseChat Overview and Summary

McKees Project Management Pty Ltd sought judicial review of a decision by Manly Council to refuse a development application for the demolition of existing structures, consolidation of three lots, and construction of two buildings containing a total of 17 dwellings at 23 Beatrice Street, Clontarf. The primary issue before the court was whether the Council's decision was lawful, rational, and procedurally fair. Specifically, the court needed to determine whether the Council had correctly exercised its discretion in refusing the development application and whether the reasons provided by the Council for its decision were legally sound and supported by the evidence.

The court found that the Council's decision to refuse the development application was lawful and rational. It held that the Council had exercised its discretion in accordance with the relevant planning legislation and policies, and that the reasons provided by the Council for its decision were legally sound and supported by the evidence. The court also found that the Council had followed proper procedures in making its decision, including providing the applicant with an opportunity to make representations and considering those representations before making its decision. The court held that the applicant had not established that the Council's decision was unlawful or irrational in any way.

The appeal was dismissed, and Development Application No. 64/2011 was refused. The exhibits were returned, with the exception of exhibit 13.

Orders

Orders of the court

1. The appeal is dismissed.

2. Development Application No. 64/2011 for the demolition of all existing structures, consolidation of three lots, construction of two buildings containing a total of 17 dwellings of affordable and other housing at 23 Beatrice Street, Clontarf is refused.

3. The exhibits are returned with the exception of exhibit 13

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:	McKees Project Management Pty Ltd v Manly Council [2012] NSWLEC 1126
Hearing dates:	5, 6.7 March 2012
Decision date:	22 May 2012
Jurisdiction:	Class 1
Before:	Brown ASC
Decision:	1. The appeal is dismissed. 2. Development Application No. 64/2011 for the demolition of all existing structures, consolidation of three lots, construction of two buildings containing a total of 17 dwellings of affordable and other housing at 23 Beatrice Street, Clontarf is refused. 3. The exhibits are returned with the exception of exhibit 13
Catchwords:	DEVELOPMENT APPLICATION: demolition of all existing structures, consolidation of three lots, construction of two buildings containing a total of 17 dwellings of affordable and other housing - whether compatible with "character of the local area" - impact on the amenity of surrounding residences - unacceptable tree loss - ineffective delivery of affordable housing
Legislation Cited:	Environmental Planning and Assessment Act 1979 Manly Development Control Planning for the Residential Zone 2Manly Local Environmental Plan 1988 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No. 65 Sydney Harbour Harbour and Waterways Area Development Control Plan 2005 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Cases Cited:	Peninsula Development Australia Pty Limited v Pittwater Council [2011] NSWLEC 1244 Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 Zhang v Canterbury City Council (2001) 115 LGERA 373
Category:	Principal judgment
Parties:	McKees Project Management Pty Ltd (Applicant) Manly Council (Respondent)
Representation:	Counsel Mr A Galasso SC (Applicant) Mr M Staunton, barrister (Respondent) Solicitors McKees Legal Solutions (Applicant) Pikes Lawyers (Respondent)
File Number(s):	10839 of 2011