TMG Developments Pty Limited v Manly Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

TMG Developments Pty Limited v Manly Council [2013] NSWLEC 1099

Hearing dates:

29 and 30 May 2013

Decision date:

31 May 2013

Jurisdiction:

Class 1

Before:

Moore SC

Decision:

The appeal will be upheld when revised plans and conditions reflecting the decision are provided (See directions at [64])

Catchwords:

DEVELOPMENT APPLICATION: View impact; definition of "public water transport facility"; parking; trading hours

Legislation Cited:

Environmental Planning and Assessment Act 1979
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Manly Development Control Plan

Cases Cited:

Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Zhang v Canterbury City Council [2001] NSWCA 167, (2001) 51 NSWLR 589

Category:

Principal judgment

Parties:

TMG Developments Pty Limited (Applicant)

Manly Council (Respondent)

Representation:

Counsel
Mr Galasso SC (Applicant)

Mr Pickles (Respondent)
Solicitors
Lindsay Taylor Lawyers (Applicant)

Pikes & Verekers (Respondent)

File Number(s):

10864 of 2012

Judgment

1. SENIOR COMMISSIONER: In 1940, the Port Jackson and Manly Steamship Company adopted the description of Manly, what it described as Australia's premier seaside resort, as being "seven miles from Sydney and one thousand miles from care". For those arriving at that time, and more so now, on vessels to the wharf that that company would have used, there are a variety of options for temporal nourishment to supplement the spiritual nourishment provided by Manly.

1. In these proceedings, an application by TMG Developments to supplement the options for temporal nourishment at Manly Wharf is in contest. Development Application 142 of 2011 was determined, under delegation by the Manly Independent Assessment Panel, by refusal. That application was described, in the development application itself, as the proposed development of the existing roof of Manly Wharf's eastern wing (to consist of four restaurants and their associated amenities and services).

1. The relevant planning regime for this location comes through the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. Clause 2 of the plan sets out a variety of general aims in 2(1) and then, with respect to the Foreshores and Waterways Area, an area within which Manly Wharf is located (as the relevant map extract from the plan demonstrates), adopts a range of principles to be observed - one of which set out in cl 2(2)(b), is that the public good has precedent over the private good wherever and whatever change is proposed for Sydney Harbour or its foreshores.

1. Whilst in these proceedings a number of submissions were made to me by Mr Galasso SC, counsel for the applicant, that to some extent there should be an implication of public good in the proposed development of these restaurants and that that should be something to be considered in the context of that clause, I am satisfied that, in reality, that with which I am required to deal is a competition between private goods - that is the good that is proposed by the applicant, and each of the relevant goods (to which I will come later) being those that flow…