Eggleton v Manly C [2005] NSWLEC 497

Eggleton v Manly C [2005] NSWLEC 497

The proposal was worthy of approval because, although it exceeded the Floor Space Ratio and raised setback, streetscape and solar access concerns, the impacts could be sufficiently minimised by the Court expert's recommended modifications, including moving the rear second storey north by 1 m, reducing rear eaves overhangs, altering the living room roof and side setbacks, modifying the front fence, and imposing a deferred commencement condition requiring amended plans to the satisfaction of Council's senior town planner.

Jurisdiction
Australia
Judgment Date
17 August 2005
Procedural Posture
Class 1 Appeal / Appeal Against Refusal of Development Consent
Outcome
Appeal upheld; deferred commencement consent granted subject to conditions.
Legal Topics
['demolition of Existing House and Construction of Two Semi Detached Two Storey Townhouses' 'height, Bulk and Scale' 'floor Space Ratio' 'side Setbacks' 'streetscape Character' 'overshadowing and Solar Access' 'front Fence Conditions' 'deferred Commencement Consent']
['environmental Planning and Assessment' 'development Consent' 'land Use Planning'] ['demolition of Existing House and Construction of Two Semi Detached Two Storey Townhouses' 'height, Bulk and Scale' 'floor Space Ratio' 'side Setbacks' 'streetscape Character' 'overshadowing and Solar Access' 'front Fence Conditions' 'deferred Commencement Consent']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal / Appeal Against Refusal of Development Consent

Legal Issues

  1. 1 ['Whether consent should be granted to demolish an existing house and erect two semi-detached dwellings at No. 49 Golf Parade, Manly.' 'Whether the proposed height, bulk and scale would unacceptably impact adjoining properties at Nos. 47 and 51 Golf Parade.' 'Whether the proposed Floor Space Ratio of 0.65:1 was excessive when the permitted Floor Space Ratio was 0.6:1.' 'Whether nil side setbacks to the front living rooms and other setbacks were inadequate.' 'Whether overshadowing and loss of solar access to adjoining properties were acceptable.' 'Whether streetscape and front fence impacts could be addressed by amendments and conditions.']

Ratio Decidendi

The proposal was worthy of approval because, although it exceeded the Floor Space Ratio and raised setback, streetscape and solar access concerns, the impacts could be sufficiently minimised by the Court expert's recommended modifications, including moving the rear second storey north by 1 m, reducing rear eaves overhangs, altering the living room roof and side setbacks, modifying the front fence, and imposing a deferred commencement condition requiring amended plans to the satisfaction of Council's senior town planner.

Court Disposition

Appeal upheld; deferred commencement consent granted subject to conditions.

Orders

  • ['The appeal is upheld.' 'Deferred Commencement Consent is granted for demolition of an existing house at No. 49 Golf Parade, Manly, and the erection of two semi-detached dwellings in 1 and 2 storey configuration as shown in drawing Nos. 0232 SK, 903A and 904A by Alex Popov & Associates and landscape plan No....