Highbury Group Pty Ltd v Manly Council [2014] NSWLEC 1094

Highbury Group Pty Ltd v Manly Council [2014] NSWLEC 1094

The Court upheld the appeal and approved the modifications because the proposed changes met the relevant height and FSR objectives despite numerical non-compliance, did not materially increase the height and bulk of the northern elevation so as to warrant refusal, maintained an appropriate visual relationship with the existing character and landscape, and the additional unit and increased density produced no identified unacceptable amenity impacts and were consistent with nearby residential flat buildings and townhouses.

Jurisdiction
Australia
Judgment Date
20 May 2014
Procedural Posture
Class 1 Application Under S 96(8) of the Environmental Planning and Assessment Act 1979 to Modify Development Consent Under S 96(2) / Principal Judgment After Hearing
Outcome
Appeal upheld; modification application approved subject to changes to the conditions of development consent.
Legal Topics
['residential Flat Building' 'height, Floor Space Ratio and Density Controls' 'visual Amenity and Residential Amenity' 'existing Consent Saved Under S 109 B' 'sepp 65 and Affordable Rental Housing']
['planning and Environment Law' 'development Consent Modification'] ['residential Flat Building' 'height, Floor Space Ratio and Density Controls' 'visual Amenity and Residential Amenity' 'existing Consent Saved Under S 109 B' 'sepp 65 and Affordable Rental Housing']

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Procedural Posture

Class 1 Application Under S 96(8) of the Environmental Planning and Assessment Act 1979 to Modify Development Consent Under S 96(2) / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the increase in height and bulk of Level 1 would have an adverse visual impact when viewed from units in the adjoining property at 6 West Street.' 'Whether the increase in the number of units provides an acceptable density for the site and locality.' 'Whether the proposed modifications satisfy the objectives of the height and floor space ratio controls despite numerical non-compliance.' 'Whether the additional unit and increased density would cause unacceptable amenity impacts including traffic, noise, overlooking or privacy impacts.']

Ratio Decidendi

The Court upheld the appeal and approved the modifications because the proposed changes met the relevant height and FSR objectives despite numerical non-compliance, did not materially increase the height and bulk of the northern elevation so as to warrant refusal, maintained an appropriate visual relationship with the existing character and landscape, and the additional unit and increased density produced no identified unacceptable amenity impacts and were consistent with nearby residential flat buildings and townhouses.

Court Disposition

Appeal upheld; modification application approved subject to changes to the conditions of development consent.

Orders

  • ['The appeal is upheld.' 'The application under s 96(8) of the Environmental Planning and Assessment Act 1979 to modify, under s 96(2), the development consent DA 126/2011 for the construction of a residential flat building at 4 West Street, Balgowlah, is determined by approving the modifications subject to the...