Savage M v Manly C - [2005] NSWLEC 131

Land and Environment Court

of New South Wales

CITATION:
Savage M v Manly C [2005] NSWLEC 131

PARTIES:
APPLICANT
Matthew Savage
RESPONDENT
Manly Council

FILE NUMBER(S):
11282 of 2004

CORAM:
Murrell C

KEY ISSUES:
Development Application :- Alterations and Additions to an existing residential flat building.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Manly Local Environmental Plan 1988
Manly Development Control Plan for Residential Zone dated 2001

CASES CITED:
Zhang v Canterbury City Council [2001] NSWCA 167;
Tenacity v Warringah City Council [2004] NSWLEC 140

DATES OF HEARING: 24/02/2005
25/02/2005

EX TEMPORE JUDGMENT DATE:
02/25/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr A. Pickles, barrister
with Mr M. Savage, solicitor
of Savage Lawyers
RESPONDENT
Mr R. K. Graham, solicitor
with Ms B. Warry
of Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

25 February 2005

11282 of 2004 Matthew Savage v Manly Council
JUDGMENT

1 This is a verbal judgment for an appeal under s.97 of the Environmental Planning and Assessment Act, against Manly Council’s deemed refusal of a development application for alterations and additions to an existing residential flat building at the property known as No. 92 Bower Street Manly.

2 A Court appointed expert, was agreed to between the applicant and the council and Mr Grech provided expert advice on matters raised in the statement of issues that was filed by the council. Mr Grech recommended a number of amendments to the plans and yesterday when we met on site the applicant had prepared a revised set of plans which partially met some of Mr Grech’s requirements.

3 This is a matter, which involves views which are always highly prized in a waterfront area and I will describe the site. The site has vehicle access from Bower Street and it also has pedestrian access to Marine Parade, Marine Parade being largely for pedestrian access although there is emergency vehicle and some vehicle assess provided as we saw yesterday on the site inspection and there is a sea wall to the sea. The locality is one that can be described as ‘magical’ and it has magnificent vistas to the north and the north facing aspect of this property is certainly ideal in terms of development. The site provides many opportunities and of course there are constraints in terms of development of sites such as this.

4 The Court must have regard to the planning regime of the council in determining an appeal for a development application. In this regard I have looked at the council’s planning regime in terms of the site being zoned residential under the Manly Local Environmental Plan 1988 and there are no requirements as such in the Manly LEP apart from the objectives of the zone and the relevant ones in these proceedings are:

(c) To allow a variety of housing types while maintaining the existing character of residential areas throughout the Manly Council area;

(d) To ensure that building form including alterations and additions does not degrade 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: [2005] NSWLEC 131
Decision Date: 02/25/2005

CaseChat Overview and Summary

In this case, the applicant, Matthew Savage, appealed against the Manly Council's deemed refusal of a development application for alterations and additions to an existing residential flat building located at 92 Bower Street, Manly. The key legal issues that the Court was required to decide involved the interpretation and application of the planning regime of the Manly Council, specifically the Manly Local Environmental Plan 1988 and the Manly Development Control Plan for Residential Zones dated 2001, as amended in 2003. The Court had to assess whether the proposed development complied with the planning objectives and controls, and whether it would maintain the existing character of residential areas, not degrade the amenity of surrounding residents or the existing quality of the environment, and improve the quality of residential areas by encouraging landscaping and greater flexibility in designing both new developments and renovations.

The Court found that the proposed development, with the amended plans, would be consistent with the objectives of the planning regime. The amendments included a greater setback from the foreshore, a reduction in the top floor's bulk, and a 0.45:1 floor space ratio. The Court considered that the proposed development must be an exemplary development in its own right and have regard to the impacts on adjoining properties. The Court was satisfied that the amended proposal would provide for a balanced development that would maintain the amenity and views of adjoining properties while providing development potential of the site. The Court also found that the proposal would not interfere with the architectural integrity of the development and would represent a balanced development that would be an asset to the area.

The final orders of the Court were as follows: 1. The appeal in respect of the property at No. 92 Bower Street, Manly, was upheld. 2. The development application submitted to Manly Council, as amended, was approved subject to a deferred commencement and other conditions contained in Annexure A. 3. The exhibits, with the exception of Exhibits B, C, and S, were returned to the parties.

Orders