Innis Holdings v Manly Council [2007] NSWLEC 762

Innis Holdings v Manly Council [2007] NSWLEC 762

On a holistic assessment of the Manly planning controls, including the DCP objectives and numerics, the proposal was capable of approval subject to amendments because the dwelling would be confined to the upper buildable part of the steep site, preserve a vegetated band and significant landscaping, avoid unreasonable view loss given that the affected city skyline view from No. 36 was a secondary view over a side boundary while primary western views were retained, and would not present unreasonable bulk, scale or foreshore impact in its context if increased setbacks, tree retention, pool relocation and associated plan amendments were made.

Jurisdiction
Australia
Judgment Date
20 September 2007
Procedural Posture
Appeal Under S 97 of the Environmental Planning and Assessment Act Against Refusal of a Development Application / Preliminary Findings on Merits of Development Application Before Submissions and Determination of the S 94 Issue
Outcome
The Court found on the merits that the development was capable of approval subject to conditions and amended plans, with formal orders to be issued after submissions and determination of the s 94 matter.
Legal Topics
['development Application for Dwelling House' 'floor Space Ratio' 'building Height' 'setbacks' 'view Sharing' 'vegetation and Tree Retention' 'precedent and Consistency in Decision Making' 'section 94 Contributions']
['planning and Environment Law' 'development Control'] ['development Application for Dwelling House' 'floor Space Ratio' 'building Height' 'setbacks' 'view Sharing' 'vegetation and Tree Retention' 'precedent and Consistency in Decision Making' 'section 94 Contributions']

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Procedural Posture

Appeal Under S 97 of the Environmental Planning and Assessment Act Against Refusal of a Development Application / Preliminary Findings on Merits of Development Application Before Submissions and Determination of the S 94 Issue

Legal Issues

  1. 1 ['Whether the proposed multi-level dwelling house was capable of approval on a merits assessment notwithstanding exceedances of council controls for floor space ratio, building height, setbacks and buildable area.' 'Whether the proposal would unreasonably affect views from the adjoining property at No. 36 Gurney Crescent.' 'Whether the proposal would be inappropriate having regard to the steeply sloping site, vegetation, natural landform, foreshore visual qualities and the character of the area.' "Whether approval would create an undesirable precedent or be inconsistent with council's planning regime."]

Ratio Decidendi

On a holistic assessment of the Manly planning controls, including the DCP objectives and numerics, the proposal was capable of approval subject to amendments because the dwelling would be confined to the upper buildable part of the steep site, preserve a vegetated band and significant landscaping, avoid unreasonable view loss given that the affected city skyline view from No. 36 was a secondary view over a side boundary while primary western views were retained, and would not present unreasonable bulk, scale or foreshore impact in its context if increased setbacks, tree retention, pool relocation and associated plan amendments were made.

Court Disposition

The Court found on the merits that the development was capable of approval subject to conditions and amended plans, with formal orders to be issued after submissions and determination of the s 94 matter.

Orders

  • ['Amended plans are to be submitted to the Court within a reasonable time frame.' 'The swimming pool is to be relocated as provided for in exhibit 7.' 'The adjoining deck is to be reconfigured in terms of its relationship with the swimming pool and is to be of timber construction or a pervious or permeable surface.'...