Seldon v Manly Council [2012] NSWLEC 1084

Seldon v Manly Council [2012] NSWLEC 1084

The appeal was upheld in part because, after considering the evidence, site inspection and Tenacity view-sharing principles, the Court preferred the applicant planner's position that further setbacks from the foreshore and western boundary were unnecessary. The difference in view loss from 7 King Avenue between the competing setback proposals was largely inconsequential and at most less than minor; the proposed development reduced the existing breach of the foreshore building line and its low-profile design was acceptable when viewed from the water; agreed privacy conditions, 8 m separation and landscaping adequately addressed amenity; and concerns about seagrass overshadowing were not...

Jurisdiction
Australia
Judgment Date
20 March 2012
Procedural Posture
Class 1 Development Application Appeal / Appeal Against Conditions of Consent for Construction of a Dwelling House After Development Consent Was Granted
Outcome
The appeal is upheld, in part.
Legal Topics
['development Consent Conditions' 'foreshore Building Line and Setbacks' 'view Impacts' 'amenity Impacts' 'drainage Easement Relocation' 'privacy Conditions']
['environmental Planning and Development' 'land and Environment Court Proceedings'] ['development Consent Conditions' 'foreshore Building Line and Setbacks' 'view Impacts' 'amenity Impacts' 'drainage Easement Relocation' 'privacy Conditions']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal / Appeal Against Conditions of Consent for Construction of a Dwelling House After Development Consent Was Granted

Legal Issues

  1. 1 ['Whether conditions requiring relocation of a drainage easement and stormwater works should be imposed or amended.' 'Whether conditions requiring translucent glazing and awning-style opening windows to address privacy impacts should be imposed or amended.' 'Whether the proposed dwelling should be set back further from the foreshore and western boundary.' 'Whether the breach of the foreshore building line under the Manly Development Control Plan for the Residential Zone 2007 could be supported in the circumstances.']

Ratio Decidendi

The appeal was upheld in part because, after considering the evidence, site inspection and Tenacity view-sharing principles, the Court preferred the applicant planner's position that further setbacks from the foreshore and western boundary were unnecessary. The difference in view loss from 7 King Avenue between the competing setback proposals was largely inconsequential and at most less than minor; the proposed development reduced the existing breach of the foreshore building line and its low-profile design was acceptable when viewed from the water; agreed privacy conditions, 8 m separation and landscaping adequately addressed amenity; and concerns about seagrass overshadowing were not...

Court Disposition

The appeal is upheld, in part.

Orders

  • ['The appeal is upheld, in part.' 'DA 143/2011 for the construction of a dwelling house at 3 King Avenue Balgowlah is approved subject to the conditions in Annexure A.' 'The exhibits are returned with the exception of exhibits 2, B and D.']