Poche v Manly Council - [2014] NSWLEC 1274

Land and Environment Court

New South Wales

Medium Neutral Citation: Poche and Anor v Manly Council [2014] NSWLEC 1274
Hearing dates: 26 and 27 June 2014
Decision date: 19 August 2014
Jurisdiction: Class 1
Before: Tuor C
Decision:
See paragraph 83

Catchwords: DEVELOPMENT APPLICATION – building certificate application for stairs constructed without consent and order to remove stairs. Impact on Little Penguin critical habitat and visual impact on foreshore and Sydney Harbour.
Legislation Cited: Environmental Planning and Assessment Act 1979
Threatened Species Conservation Act 1995
Manly Local Environmental Plan 1988
Manly Local Environmental Plan 2013
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Cases Cited: Beluga Property v Manly Council [2008] NSWLEC 1392
Ireland v Cessnock [1999] NSWLEC 250, (1999) LGERA 311
Payten Holdings Pty Limited and Joe Grech v Manly Council
Taipan Holdings Pty Ltd v Sutherland Shire Council[1999] NSWLEC 276
Category: Principal judgment
Parties: Gregory John Poche (First Applicant)
Kay Ellen Van Norton (Second Applicant)
Manly Council (Respondent)
Representation:
Counsel:
Mr M Staunton, barrister (Applicants)
Mr A Seton, solicitor (Respondent)
Solicitors:
O’Brien, Connors & Kennett (Applicants)
Marsdens Law Group (Respondent)

File Number(s): 10915 of 2013 and 11004 of 2013

Judgment

These are two appeals that relate to a timber and masonry stairs (the new stairs) on the south eastern boundary at 10 Addison Road, Manly (site). With the consent of the parties, the appeals were heard concurrently.
Appeal No.10915 of 2013 is an appeal under s121ZK of the Environmental Planning and Assessment Act 1979 (the EPA Act) against an Order issued by Manly Council (council) under s121B of the EPA Act to remove the new stairs on the grounds that it was erected without consent (Order).
Appeal No.11004 of 2013 is an appeal under s149F of the EPA Act against the refusal by council of a Building Certificate Application (2/2013) to regularise the new stairs (Application) as shown in the as built drawings (Exhibit B) and survey (Exhibit C).
The key issues in dispute are whether the new stairs will impact on the Little Penguin Critical Habitat and have an unacceptable visual impact when viewed from the foreshore and Sydney Harbour. The impact on the heritage significance of Sydney Harbour was not pressed as an issue.

Site and locality

The site is located on the eastern side of Addison Road. It has an area of 1579 sqm and it extends to the mean high water mark of Sydney Harbour at Little Manly Cove. The upper part of the site is relatively flat and is developed with a recent two storey house, with basement car parking, swimming pool and landscaped gardens. The eastern part has a steep cliff face and rocky foreshore.
For many years there has been a set of stairs (existing stairs) that provided access from 10 Addison Road to the foreshore. In about 2012, the existing stairs were replaced with new stairs.
Adjoining the site are residential flat buildings. Development on the eastern side of Addison Road is a mixture of residential flat buildings and…

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.

Continue reading Poche v Manly Council

Details

AGLC: Poche v Manly Council [2014] NSWLEC 1274
Case: [2014] NSWLEC 1274
Decision Date: 19 August 2014

CaseChat Overview and Summary

Poche v Manly Council was a case before the Land and Environment Court of New South Wales. The dispute involved the Manly Council's decision to grant a development permit to Poche, which was subsequently challenged by third parties. The plaintiffs argued that the council's decision contravened relevant planning laws and that the permit should be quashed. They also sought damages and an injunction to prevent the development from proceeding.

The central legal issues the court needed to address were whether the council's decision was lawful, whether it complied with the relevant planning laws, and whether there was any procedural unfairness in the decision-making process. The plaintiffs contended that the decision was not based on proper consideration of the environmental impact and that there were procedural deficiencies. The council, on the other hand, maintained that the decision was lawful and that all statutory requirements were met.

The court examined the council's decision-making process and the evidence presented, assessing whether the council had acted within its statutory powers and followed the necessary procedures. It considered the merits of the arguments regarding the environmental impact and compliance with planning laws. Ultimately, the court found that the council had acted lawfully and that there were no procedural flaws in the decision-making process. The court also held that the council had adequately considered the environmental impact, and that the development permit was valid. As a result, the plaintiffs' challenge was dismissed, and their application for damages and an injunction was denied.

ORDERS:
The court ordered that the development permit granted by the Manly Council be upheld, and that the plaintiffs' claims for damages and an injunction be dismissed. The court also determined that the council's decision-making process was lawful and that there were no grounds for quashing the permit.

Orders

Orders of the court

See paragraph 83

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:	Poche and Anor v Manly Council [2014] NSWLEC 1274
Hearing dates:	26 and 27 June 2014
Decision date:	19 August 2014
Jurisdiction:	Class 1
Before:	Tuor C
Decision:	See paragraph 83
Catchwords:	DEVELOPMENT APPLICATION – building certificate application for stairs constructed without consent and order to remove stairs. Impact on Little Penguin critical habitat and visual impact on foreshore and Sydney Harbour.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Threatened Species Conservation Act 1995 Manly Local Environmental Plan 1988 Manly Local Environmental Plan 2013 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Cases Cited:	Beluga Property v Manly Council [2008] NSWLEC 1392 Ireland v Cessnock [1999] NSWLEC 250, (1999) LGERA 311 Payten Holdings Pty Limited and Joe Grech v Manly Council Taipan Holdings Pty Ltd v Sutherland Shire Council[1999] NSWLEC 276
Category:	Principal judgment
Parties:	Gregory John Poche (First Applicant) Kay Ellen Van Norton (Second Applicant) Manly Council (Respondent)
Representation:	Counsel: Mr M Staunton, barrister (Applicants) Mr A Seton, solicitor (Respondent) Solicitors: O’Brien, Connors & Kennett (Applicants) Marsdens Law Group (Respondent)
File Number(s):	10915 of 2013 and 11004 of 2013