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Stockland Development Pty Ltd v Manly Council

Stockland Development Pty Ltd v Manly Council

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Land and Environment Court

of New South Wales

CITATION: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 revised - 01/10/2004

PARTIES: Stockland Development Pty Ltd (Appl)
Manly Council (Resp)

FILE NUMBER(S): 10428 of 2004

CORAM: McClellan CJ

KEY ISSUES: Development Application :- Residential and commercial development
Floor space ratio
Height controls
Correct approach to consideration of and the weight to be given to development control plans
Development control plans
Correct approach to consideration of and the weight to be give to detailed planning policies adopted by a council

LEGISLATION CITED: Environmental Planning & Assessment Act 1979

CASES CITED: Boyce v Burwood Municipal Council (1964) 10 LGRA 280;
Crusade Constructions Co Pty Ltd v Sutherland Shire Council (1961) 6 LGRA 372;
Foreman v Sutherland Shire Council (1964) 10 LGRA 261;
Hunter District Industries Pty Ltd v Newcastle City Council (1957) 2 LGRA 240;
JOL Pty Ltd v Waverley Municipal Council (1971) 22 LGRA 152;
North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 ;
North Sydney Council v Ligon 302 Pty Ltd (No 2) (1996) 93 LGERA 23;
Re Drake (No 2) (1979) 2 ALD 634 ;
Regent Project (No 6) Pty Ltd v Hornsby Shire Council (1970) 20 LGRA 316;
Leeroy Television Service Pty Ltd v Leichhardt Municipal Council (1970) 21 LGRA 40;
Segal v Waverley Council [2004] NSWLEC 363;
Shellcove Gardens Pty Ltd v North Sydney Municipal Council (1961) 6 LGRA 93 ;
Smith v Wyong Shire Council (No 2) (1980) 41 LGRA 202;
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195;
Willoughby Municipal Council v Manchil Pty Ltd (1974) 29 LGRA 303;
Zhang v Canterbury City Council (2001) 115 LGERA 373

DATES OF HEARING: 26-30 July 2004

EX TEMPORE
JUDGMENT DATE : 08/03/2004

LEGAL REPRESENTATIVES:

M G Craig QC/I J Hemmings (Appl)
Mallesons Stephen Jaques (Sol - Appl)
D P F Officer QC/C J Leggat/B J Saunders (Resp)
Abbott Tout (Sol - Resp)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

McCLELLAN J

TUESDAY 3 AUGUST 2004

10428/04 STOCKLAND DEVELOPMENT PTY LTD v MANLY COUNCIL
JUDGMENT

1 HIS HONOUR: Before the Court is an application to redevelop the site which is generally known as the Balgowlah or Totem Shopping Centre. The shopping centre and the additional lands, the subject of the application, comprise the majority of an entire suburban block in Balgowlah bounded by Sydney Road, Condamine and Griffiths Streets and Woodland Street North. Adjoining suburbs include Manly Vale to the north, Clontarf, Balgowlah Heights and Seaforth to the south, and Manly and Fairlight to the east.

2 The site is irregular in shape and has a total area of approximately 2.8 hectares. The site slopes from the south-western corner at Woodland Street North down to the north-eastern corner at Condamine Street. The level changes from approximately RL45.7 AHD to RL24.62 AHD. This has been calculated as a fall of approximately 13 metres in a northerly direction along the Condamine Street frontage 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.

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Details

Case: [2004] NSWLEC 472
Decision Date: 08/03/2004

CaseChat Overview and Summary

In Stockland Development Pty Ltd v Manly Council, the Land and Environment Court of New South Wales addressed an application to redevelop the Balgowlah or Totem Shopping Centre, located in Balgowlah, Sydney. The applicant proposed a significant redevelopment involving the demolition of existing buildings and construction of a new shopping centre with commercial, residential, and parking facilities. The proposal included two major supermarkets, specialty shops, a public plaza, a rebuilt Masonic Club, and approximately 794 car parking spaces, with residential dwellings and facilities above a concrete podium. The key legal issues were the floor space ratio, height controls, and the appropriate approach to considering development control plans and urban design policies. The court held that the Urban Design Controls, which were developed after extensive consultation and detailed consideration, should be given significant weight. The court found that the proposal exceeded the height controls and floor space ratios, leading to unacceptable impacts on the surrounding residential properties. The high-quality architecture of the proposal did not justify the departure from the carefully considered controls. The court refused the appeal, finding the proposal unsuitable due to its disregard for the adopted controls and the resulting negative impacts on the neighbourhood.

Orders