Manolev v Manly Council [2006] NSWLEC 252

Manolev v Manly Council [2006] NSWLEC 252

The Court accepted the court appointed expert's practical approach that an increase in floor space ratio beyond the DCP requirement could be accepted where the objectives of the control were not offended, but that components adding to bulk and scale should be deleted given the existing and proposed breach. The lift should be retained because it was unreasonable to provide a lift that did not service all levels and the area did not overly impact on the view corridor. With the required amendments, additional overshadowing to the adjoining property was minimal, and the proposal was acceptable under the relevant planning instruments. Temporary screening barriers during construction were an...

Jurisdiction
Australia
Judgment Date
04 July 2006
Procedural Posture
Appeal Against Refusal of Development Application No. 335/05 for Alterations and Additions to an Existing Dwelling / Judgment and Final Orders
Outcome
Appeal upheld; development application approved subject to conditions in Annexure A.
Legal Topics
['development Application' 'alterations and Additions to Dwelling' 'floor Space Ratio' 'wall Height' 'setback' 'visual Impact' 'views and Vistas' 'overshadowing' 'bulk and Scale' 'foreshore Scenic Protection']
['planning and Environment Law' 'development Consent'] ['development Application' 'alterations and Additions to Dwelling' 'floor Space Ratio' 'wall Height' 'setback' 'visual Impact' 'views and Vistas' 'overshadowing' 'bulk and Scale' 'foreshore Scenic Protection']

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Procedural Posture

Appeal Against Refusal of Development Application No. 335/05 for Alterations and Additions to an Existing Dwelling / Judgment and Final Orders

Legal Issues

  1. 1 ['Whether proposed alterations and additions, including amendments, were acceptable having regard to breaches of floor space ratio, wall height and setback controls.' 'Whether the proposal would create unacceptable visual impacts on views and vistas from Seaforth Crescent and Middle Harbour by reason of bulk and scale.' 'Whether the proposal would cause unacceptable overshadowing or bulk impacts on 53 Seaforth Crescent.' 'Whether disputed construction protection condition 31 should require temporary screening barriers.']

Ratio Decidendi

The Court accepted the court appointed expert's practical approach that an increase in floor space ratio beyond the DCP requirement could be accepted where the objectives of the control were not offended, but that components adding to bulk and scale should be deleted given the existing and proposed breach. The lift should be retained because it was unreasonable to provide a lift that did not service all levels and the area did not overly impact on the view corridor. With the required amendments, additional overshadowing to the adjoining property was minimal, and the proposal was acceptable under the relevant planning instruments. Temporary screening barriers during construction were an...

Court Disposition

Appeal upheld; development application approved subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'Development Application No. 335/05 for alterations and additions to an existing dwelling at 51 Seaforth Crescent, Seaforth is approved subject to the conditions in Annexure A.' 'The exhibits are returned.']