Lozevski v Manly Council [2007] NSWLEC 446

Lozevski v Manly Council [2007] NSWLEC 446

The proposal was unacceptable because its non-complying elements, particularly the third floor and floor space above the DCP controls, caused unreasonable view impacts and did not promote view sharing. The existing floor space ratio could justify a variation only if there were no net negative view impacts. The suggested amendments were untested, unlikely to remove the impacts, and would require renewed assessment, so an adjournment was not appropriate.

Jurisdiction
Australia
Judgment Date
20 July 2007
Procedural Posture
Appeal Against Refusal of a Development Application / Judgment and Final Orders
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application' 'view Impact' 'floor Space Ratio' 'wall Height' 'development Control Plan Compliance' 'residential Development']
['planning and Environment Law'] ['development Application' 'view Impact' 'floor Space Ratio' 'wall Height' 'development Control Plan Compliance' 'residential Development']

Case Brief

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Procedural Posture

Appeal Against Refusal of a Development Application / Judgment and Final Orders

Legal Issues

  1. 1 ['Whether the proposed six-level residential building should be approved despite non-compliance with wall height and floor space ratio controls.' 'Whether the proposal would cause unreasonable view impacts on neighbouring properties.' 'Whether other impacts, including bulk, excavation, swimming pools, open space, setbacks, overlooking, overshadowing and design, justified refusal.' 'Whether the proceedings should be adjourned to allow amended drawings to be prepared.']

Ratio Decidendi

The proposal was unacceptable because its non-complying elements, particularly the third floor and floor space above the DCP controls, caused unreasonable view impacts and did not promote view sharing. The existing floor space ratio could justify a variation only if there were no net negative view impacts. The suggested amendments were untested, unlikely to remove the impacts, and would require renewed assessment, so an adjournment was not appropriate.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development application to demolish the existing buildings and erect a six-level building containing four apartments on lot 27 DP 3806, known as 110-112 Bower Street, Manly is determined by refusal.' 'The exhibits are returned.']