Lozevski v Manly Council [2008] NSWLEC 1379

Lozevski v Manly Council [2008] NSWLEC 1379

Although no single DCP noncompliance was separately fatal, the interrelated breaches concerning floor space ratio, open space, excavation and setbacks, together with associated amenity impacts from a non-complying building, demonstrated overdevelopment of the site. The proposed development was not suitable development in accordance with the Residential zone objectives, particularly as to residential character and quality of the environment, so cl 10(3) of the Manly Local Environmental Plan 1988 required refusal.

Jurisdiction
Australia
Judgment Date
25 September 2008
Procedural Posture
Development Application Appeal / Judgment After Hearing
Outcome
Appeal dismissed; development application refused.
Legal Topics
['residential Flat Building' 'development Application' 'development Control Plan Compliance' 'floor Space Ratio' 'dwelling Density' 'wall Height and Number of Storeys' 'open Space and Landscaping' 'excavation' 'setbacks' 'privacy' 'views' 'residential Amenity']
['environmental and Planning Law' 'development Control' 'land and Environment Court Merits Appeal'] ['residential Flat Building' 'development Application' 'development Control Plan Compliance' 'floor Space Ratio' 'dwelling Density' 'wall Height and Number of Storeys' 'open Space and Landscaping' 'excavation' 'setbacks' 'privacy' 'views' 'residential Amenity']

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Procedural Posture

Development Application Appeal / Judgment After Hearing

Legal Issues

  1. 1 ['Whether consent should be granted for demolition of existing residential flat buildings and erection of a new residential flat building containing four dwellings with basement car parking at 110-112 Bower Street, Manly.' 'Whether the proposal complied sufficiently with the Manly Local Environmental Plan 1988 and Development Control Plan for the Residential Zone 2007 - Amendment 1.' 'Whether departures from controls for floor space ratio, density, wall height, number of storeys, setbacks, open space and excavation caused unacceptable impacts on bulk, views, privacy, overshadowing, streetscape and residential amenity.' 'Whether the cumulative noncompliances meant the proposal was an overdevelopment of the site and unsuitable having regard to the residential zone objectives.']

Ratio Decidendi

Although no single DCP noncompliance was separately fatal, the interrelated breaches concerning floor space ratio, open space, excavation and setbacks, together with associated amenity impacts from a non-complying building, demonstrated overdevelopment of the site. The proposed development was not suitable development in accordance with the Residential zone objectives, particularly as to residential character and quality of the environment, so cl 10(3) of the Manly Local Environmental Plan 1988 required refusal.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.']