Benson McCormack Pty Ltd v Manly Council [2015] NSWLEC 1019

Benson McCormack Pty Ltd v Manly Council [2015] NSWLEC 1019

Development consent was refused because the residential flat building element presenting to Sydney Road was not compatible with the current or likely future character of the local area, being strongly discordant in bulk, form and streetscape presentation, and because the boarding house element's non-compliant 7 m rear setback caused additional overshadowing of the private open space at 4 Bentley Street such that the Court could not be satisfied the DCP overshadowing control was met. These defects made the proposal unacceptable and warranted dismissal of the appeal.

Jurisdiction
Australia
Judgment Date
16 February 2015
Procedural Posture
Class 1 Development Application Appeal / Principal Judgment After Hearing
Outcome
Appeal dismissed and development consent refused.
Legal Topics
['development Consent' 'affordable Rental Housing' 'boarding House' 'residential Flat Building' 'compatibility With Character of Local Area' 'setbacks' 'overshadowing' 'solar Access']
['planning and Environment Law'] ['development Consent' 'affordable Rental Housing' 'boarding House' 'residential Flat Building' 'compatibility With Character of Local Area' 'setbacks' 'overshadowing' 'solar Access']

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Procedural Posture

Class 1 Development Application Appeal / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the design of the proposed affordable rental housing residential flat building and boarding house was compatible with the character of the local area under State Environmental Planning Policy (Affordable Rental Housing) 2009.' 'Whether the proposed front and rear setbacks were acceptable having regard to the Manly Development Control Plan 2013.' 'Whether the proposed development would cause unacceptable overshadowing of adjoining private open space, particularly at 4 Bentley Street.']

Ratio Decidendi

Development consent was refused because the residential flat building element presenting to Sydney Road was not compatible with the current or likely future character of the local area, being strongly discordant in bulk, form and streetscape presentation, and because the boarding house element's non-compliant 7 m rear setback caused additional overshadowing of the private open space at 4 Bentley Street such that the Court could not be satisfied the DCP overshadowing control was met. These defects made the proposal unacceptable and warranted dismissal of the appeal.

Court Disposition

Appeal dismissed and development consent refused.

Orders

  • ['The appeal is dismissed;' 'Development Application No. 130/2014 for the erection of an affordable rental housing residential flat building and a boarding house (together with the stratum subdivision of the resultant development into two lots) at 323 and 325 Sydney Road, Balgowlah is determined by the refusal of...