Wynne v Manly Council - [2005] NSWLEC 763

Land and Environment Court

of New South Wales

CITATION:
Wynne v Manly Council [2005] NSWLEC 763

PARTIES:
APPLICANT
Penny and Charles Wynne
RESPONDENT
Manly Council

FILE NUMBER(S):
10832 & 10833 of 2005

CORAM:
Bly C

KEY ISSUES:
Development Application :- Detached two storey dwelling houses - floor space ratio

LEGISLATION CITED:
Manly Local Environment Plan 1988
Development Control Plan - Residential Zone 2001

CASES CITED:
Datum Pty Ltd v Botany Bay City Council [2003] NSWLEC 62

DATES OF HEARING: 08/12/2005

EX TEMPORE JUDGMENT DATE:
12/08/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr A Galasso, barrister
RESPONDENT
Mr R Graham, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

8 December 2006

10832 and 10833 of 2005 Penny and Charles Wynne v
Manly Council
JUDGMENT

This decision was given extemporaneously. It has been revised and edited prior to publication.

1 These two appeals relate to development applications for the erection of a single two-storey detached dwelling house on each of the properties at No. 8 Yatama Street and No. 11 Benelong Street in Seaforth. The sites are zoned No. 2 Residential under Manly Local Environment Plan 1988. The LEP does not contain any development standards relevant to these applications. It does, however, contain policies and strategies as well as objectives for the No. 2 Zone.

2 The policies and strategies of the plan under the heading Residential and Community Life describe the maintaining, protecting and increasing the municipality’s permanent residential population and a description of the nature and intended future of residential areas within the municipality by means of density and other controls. These controls are to be found in Development Control Plan - Residential Zone 2001 (“the DCP”).

3 The objectives of the No. 2 Zone relate to the setting aside of land to be used for housing and associated facilities. In particular the objectives refer to the allowance of a variety of housing types while maintaining the existing character of residential areas throughout the municipality and ensuring that building form including alterations and additions does not degrade the amenity of surrounding residents or the existing quality of the environment. The objectives also require the improvement of the quality of residential areas by encouraging landscaping and permitting greater flexibility of design in both new development and renovations.

4 The setback requirements in the DCP are variably infringed to a limited degree by these proposals but these non-compliances were not pressed as matters of any serious concern.

5 The principle issue in this case involves the requirements in cl 3.3 of the DCP that deal with floor space ratio (“FSR”). Being in Density Sub-zone 5 the two sites attract a maximum FSR of 0.45:1. It is now agreed that both proposals will have a FSR of 0.66:1 and the exceedance of the FSR equates to approximately 100 sq m of floor space in each case. In order to determine whether or not the proposed exceedances are reasonable, it is appropriate in my view to take into…

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.

Keep reading for free

Create a free CaseChat account to read Wynne v Manly Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] NSWLEC 763
Decision Date: 12/08/2005

CaseChat Overview and Summary

The appeals in Wynne v Manly Council were brought by Penny and Charles Wynne, who sought to develop two residential properties in Seaforth, New South Wales. The Manly Council had rejected their development applications, leading the applicants to appeal the decision to the Land and Environment Court of New South Wales. The central issue in these appeals was whether the proposed two-storey detached dwellings exceeded permissible floor space ratios (FSR) as stipulated in the Development Control Plan - Residential Zone 2001, and if so, whether the exceedance was reasonable given the context and objectives of the local planning framework.

The court examined the objectives of the FSR standards, focusing on controlling building bulk and ensuring consistency with the character of the residential areas. Despite the proposed FSR of 0.66:1 exceeding the allowable 0.45:1, the court found that the non-compliance was reasonable. The court considered the mixed character of the residential area, which included a variety of building forms, and noted the council's past approvals for similar exceedances. It concluded that the proposed developments, though exceeding the FSR, were in line with the desired character of the area and would not degrade the surrounding amenity. Additionally, the court adjusted several conditions of the consents, including those related to tree protection and access, to better align with the evidence and previous court decisions.

In its judgment, the court upheld the appeals, allowing the development applications, subject to the amended conditions. The court emphasised that its decision was based on the merits of the applications, not on the precedent set by the council's past approvals. The applicants' objections to the amount of section 94 contributions were withdrawn without prejudice to their right to seek further review under section 96 of the Environmental Planning and Assessment Act 1979.

Orders