Codling v Manly Council [2010] NSWLEC 1299

Procedural Posture

Appeal Pursuant to S97(1) of the Environmental Planning and Assessment Act 1979 From Manly Council's Refusal of Development Consent / Final Judgment

Legal Issues

1. 1 ['Whether the proposed fitout, minor alterations and additions to Level 1 of the Manly Bathers Pavilion were permissible under the applicable planning controls.' 'Whether the proposed use should be characterised as commercial premises, a conference facility, a function centre, a restaurant, or a water-based restaurant and entertainment facility under the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005.' 'Whether the proposed function and conference uses were independent uses or whether one was ancillary to the other.' 'Whether the applicant should be given an opportunity to amend the application to rely on the 2004 development consent or existing use rights.']

Ratio Decidendi

The proposed use of Level 1 for functions, including weddings at which meals and alcohol could be served, was properly characterised as a restaurant in its ordinary meaning and therefore as a water-based restaurant and entertainment facility, which is prohibited in the W2 Environment Protection zone by cl18(1) of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. Although the conference facility use could be characterised as commercial premises and permissible with consent under cl18(2), the function and conference uses were independent uses and neither was ancillary to the other. Because one independent proposed use was prohibited, development consent could not be...

Court Disposition

Appeal dismissed; Development Application No 25/2009 refused.

Orders

• ['The appeal is dismissed.' 'Development Application No 25/2009 for the fitout, minor alterations and additions to level 1 of the Manly Bathers Pavilion is refused.' 'The exhibits are returned, except for Exhibits A, E and 5.']