Pritchard v Manly Council - [2014] NSWLEC 1186

Land and Environment Court

New South Wales

Medium Neutral Citation: Pritchard v Manly Council [2014] NSWLEC 1186
Hearing dates: 5 September 2014
Decision date: 09 September 2014
Jurisdiction: Class 1
Before: Tuor C
Decision:
1.The appeal is upheld.
2.The development (DA 20/2014) for alterations and additions to an existing residential flat building, including a roof terrace at 6 Fairlight Crescent, Manly, is approved subject to the conditions in Annexure "A".
3.The exhibits, except Exhibits 6, A, B and E, are returned.

Catchwords: DEVELOPMENT APPLICATION - roof terrace. Impact on privacy and views.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy No 1 - Development Standards
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Manly Local Environmental Plan 2013
Cases Cited: Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153
Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Wehbe v Pittwater Council [2007] NSWLEC 827
Category: Principal judgment
Parties:
John Duncan Pritchard (Applicant)
Manly Council (Respondent)
Representation: Mr M Staunton (Applicant)
Mr S Shneider of Houston Dearn O'Conner (Respondent)

File Number(s): 10225 of 2014

Judgment

This is an appeal under the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Manly Council (council) of a development application (DA 20/2014) for alterations and additions to an existing residential flat building, including a roof terrace at 6 Fairlight Crescent, Manly (site).

The key issues in dispute are that the proposed roof terrace will result in visual and aural privacy impacts and view loss to adjoining and nearby properties.

Site and locality

The site is located on the northern side of Fairlight Crescent with rear access from Arlington Drive. It is generally rectangular in shape, with a frontage of 15.24m to Fairlight Crescent and Arlington Drive and side boundaries of 34.44m with a total area of 518.5sqm.

The site is developed with a residential flat building, which is currently being substantially altered under a development application (DA304/2011), which was approved by council on 27 February 2012. Subsequent applications under s96 of the Act have been approved, most recently under an agreement pursuant to s 34 of the Land and Environment Court Act 1979 (EPA Act) in Appeal No. 10226 of 2014 (Approved Development).

The site adjoins residential flat buildings. To the rear, on the opposite side of Arlington Drive, are detached dwellings with elevated terraces that overlook the site (14 Bolingbrook Parade and 23 Lauderdale Avenue). The surrounding area is predominantly two to three storey residential flat buildings, interspersed with detached dwellings and townhouses.

Background and proposal

The development application was lodged on 14 February 2014 seeking approval for additional works to those approved under DA304/2011. The key change is to provide a roof terrace on level 4 for unit 5 and to enlarge the approved terrace for unit 6. The terraces would include a glass balustrade and there would be a privacy screen between the terraces for units 5 and 6. The application was refused by the Manly…

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: [2014] NSWLEC 1186
Decision Date: 09 September 2014

CaseChat Overview and Summary

The case before the Land and Environment Court of New South Wales was an appeal by the first applicant, Ms Pritchard, against a decision by the second respondent, the Manly Council, to refuse a development application for alterations and additions to an existing residential flat building. The development included the construction of a roof terrace at the property located at 6 Fairlight Crescent, Manly. The primary concern of the applicant was the refusal of the development application, specifically the decision to deny the roof terrace as it was considered a non-complying structure under the local planning instrument.

The central legal issues in the case revolved around the interpretation of the local planning instrument and the discretion of the council in approving the development application. The applicant argued that the proposed roof terrace was not a non-complying structure as defined in the planning instrument, and that the council's refusal was therefore an error in law. The applicant further contended that the council's decision did not accord with the relevant criteria outlined in the planning instrument and the applicable guidelines.

In its decision, the court found that the council's interpretation of the planning instrument was flawed. The court held that the proposed roof terrace did not constitute a non-complying structure as defined in the local planning instrument. The court also found that the council's decision to refuse the development application was not in accordance with the relevant criteria and guidelines. The court concluded that the appeal should be upheld, and the development application approved subject to the conditions set out in Annexure "A". The exhibits, except for certain specified ones, were to be returned to the parties.

Orders

Orders of the court

1.The appeal is upheld.

2.The development (DA 20/2014) for alterations and additions to an existing residential flat building, including a roof terrace at 6 Fairlight Crescent, Manly, is approved subject to the conditions in Annexure "A".

3.The exhibits, except Exhibits 6, A, B and E, are returned.

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:	Pritchard v Manly Council [2014] NSWLEC 1186
Hearing dates:	5 September 2014
Decision date:	09 September 2014
Jurisdiction:	Class 1
Before:	Tuor C
Decision:	1.The appeal is upheld. 2.The development (DA 20/2014) for alterations and additions to an existing residential flat building, including a roof terrace at 6 Fairlight Crescent, Manly, is approved subject to the conditions in Annexure "A". 3.The exhibits, except Exhibits 6, A, B and E, are returned.
Catchwords:	DEVELOPMENT APPLICATION - roof terrace. Impact on privacy and views.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 1 - Development Standards State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Manly Local Environmental Plan 2013
Cases Cited:	Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153 Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Wehbe v Pittwater Council [2007] NSWLEC 827
Category:	Principal judgment
Parties:	John Duncan Pritchard (Applicant) Manly Council (Respondent)
Representation:	Mr M Staunton (Applicant) Mr S Shneider of Houston Dearn O'Conner (Respondent)
File Number(s):	10225 of 2014