Wilson v Manly Council - [2009] NSWLEC 1013

Land and Environment Court

of New South Wales

CITATION: Wilson v Manly Council [2009] NSWLEC 1013
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Andrew J Wilson
RESPONDENT
Manly Council

FILE NUMBER(S): 10861 of 2008

CORAM: Hoffman C

KEY ISSUES: DEVELOPMENT APPLICATION :- alterations and additions increases existing non-compliance with height, side setback, storey controls with impacts of bulk, overlooking, domination, shadows, visual and acoustic privacy, amenity and view loss on neighbours, public interest

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Manly Local Environmental Plan 1988
Manly Development Control Plan for the Residential Zone 2007
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

CASES CITED: Pafburn v North Sydney Council [2005] NSWLEC 444
Tenacity Consulting v Warringah Council [2004] NSWLEC 140

DATES OF HEARING: 3 December 2008

DATE OF JUDGMENT:
21 January 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr J. Hones, solicitor
of Hones la Hood Solicitors
RESPONDENT
Mrs L. Finn, solicitor
of HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

21 January 2009

10861 of 2008 Andrew J Wilson v Manly Council
JUDGMENT

1 Commissioner: This is a Class 1 Appeal No. 10861 of 2008 between Wilson and Manly Council in regard to the refusal of DA 437/07 for alterations and additions to a multi level house at No. 129 Seaforth Crescent, Balgowlah.

The site

2 The subject site is Lot 1 of Deposited Plan 850323 and is commonly known as No. 129 Seaforth Crescent, Seaforth.

3 The subject site is located on the western side of Seaforth Crescent. It is irregular in shape with a 5.26 metre frontage to Seaforth Crescent, a depth of 75.5 metres along the site’s northern boundary, a dog-leg of 6.1 metres and 3.59 metres around a neighbouring lot at the street front and then 65.365 metres along the sites southern boundary. The site area is 750.2 sqaure metres. The site splays out a little and has a 13.075 metre rear or western boundary.

4 The land falls steeply from the street to the rear of the site. The total fall is about 45 metres over a distance of 75m giving a slope of 56% or 1:1.8. Some cross fall is evident. Vegetation on the site is confined to between the dwelling and the site's rear boundary.

5 The subject house has minimal side setbacks, due to the narrowness of the site. Due to this narrowness and the size of the house, it is about 27 metres long. Due to this length and the steepness of the land slope, even with 6 floor levels the lowest floor is still elevated about 7 metres above the ground at the western end. It is supported on steel columns and beams.

6 Within the steel framing there is a suspended timber deck under the western end of the house. It is about 3 metres above ground at one end, but touches the ground at the other end where it…

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: [2009] NSWLEC 1013
Decision Date: 21 January 2009

CaseChat Overview and Summary

The case of Wilson v Manly Council was heard in the Land and Environment Court of New South Wales, where the applicant, Andrew J Wilson, sought to appeal the refusal of a development application for alterations and additions to a multi-level house at No. 129 Seaforth Crescent, Balgowlah. The site in question is located on the western side of Seaforth Crescent and is irregular in shape with a 5.26-metre frontage. The subject site is zoned 'Residential' pursuant to the Manly Local Environmental Plan 1988 (LEP). The proposal included alterations and additions to the existing multi-level dwelling, including additional decks.

The key issues in this case were whether the proposal complied with height, side setback, and storey controls, as well as the impacts of bulk, overlooking, domination, shadows, visual and acoustic privacy, amenity, and view loss on neighbours and the public interest.

The court found that the proposal would intensify existing non-compliances with respect to wall height and side setbacks, resulting in adverse privacy impacts on the adjoining neighbours, diminished quality of views from adjoining properties, and increased overshadowing and loss of solar access. The court also found that the proposal was not in the public interest, as it would exacerbate existing non-compliances with the applicable controls, resulting in further negative impacts on neighbours.

The court granted consent in part, approving only certain parts of the proposal, including the enlargement of the Entry and planter box, the En-Suite, WC, and walk-in-robe, and the north side extension of Bedroom 4. The court imposed several conditions on the approved works, including requirements for privacy screens, deletion of certain decks, and compliance with various planning and building regulations.

In conclusion, the court found that the proposal, as a whole, was not in the public interest due to its significant negative impacts on neighbouring properties and the environment. The court granted consent only for certain parts of the proposal, subject to the specified conditions, to ensure that the approved works align with the legislative planning purposes and intended outcomes.

Orders