Manolev Associates Pty Ltd v Manly Council [2010] NSWLEC 1055

Manolev Associates Pty Ltd v Manly Council [2010] NSWLEC 1055

The Court held that the general multi-level form of the dwelling, the extent of excavation, and the side setback relationship were acceptable given the steep site and applicable controls, but the level 3/4 and associated clerestory roof presentation was excessively bulky and visually dominant from the waterway and opposite foreshore, and retention of the existing hard stand would contribute to bulk, reduce on-street parking and limit public harbour views. Conditional consent was appropriate only after amendments reducing the visual impact of the upper levels, removing the hard stand, reinstating the footpath area, specifying screening trees and specifying the colour scheme.

Jurisdiction
Australia
Judgment Date
18 March 2010
Procedural Posture
Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No 408/08 / Judgment With Directions Before Orders Granting Conditional Consent
Outcome
Conditional consent to the development application was to be granted after satisfactory amendment of specified elements and compliance with directions.
Legal Topics
['development Application for Dwelling House' 'foreshore Scenic Protection Area' 'building Height and Bulk' 'visual Impact' 'excavation and Earthworks' 'setbacks' 'vehicle Access and Parking' 'inclinator' 'landscaping']
['environmental Planning and Assessment' 'development Control' 'land Use Planning'] ['development Application for Dwelling House' 'foreshore Scenic Protection Area' 'building Height and Bulk' 'visual Impact' 'excavation and Earthworks' 'setbacks' 'vehicle Access and Parking' 'inclinator' 'landscaping']

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Procedural Posture

Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No 408/08 / Judgment With Directions Before Orders Granting Conditional Consent

Legal Issues

  1. 1 ["Whether the proposed multi-level dwelling, inclinator and associated works should be approved despite Council's refusal of the development application." "Whether the proposal's height, bulk and level 3/4 clerestory roof presentation would have an unacceptable visual impact when viewed from adjoining land, the harbour and the opposite foreshore." 'Whether the proposal complied sufficiently with controls concerning wall height, number of storeys, side and front setbacks, excavation, parking arrangements, landscaping and foreshore scenic protection.' 'Whether the existing hard stand parking area should be retained.' 'Whether sufficient information and amenity protection existed for the proposed inclinator.']

Ratio Decidendi

The Court held that the general multi-level form of the dwelling, the extent of excavation, and the side setback relationship were acceptable given the steep site and applicable controls, but the level 3/4 and associated clerestory roof presentation was excessively bulky and visually dominant from the waterway and opposite foreshore, and retention of the existing hard stand would contribute to bulk, reduce on-street parking and limit public harbour views. Conditional consent was appropriate only after amendments reducing the visual impact of the upper levels, removing the hard stand, reinstating the footpath area, specifying screening trees and specifying the colour scheme.

Court Disposition

Conditional consent to the development application was to be granted after satisfactory amendment of specified elements and compliance with directions.

Orders

  • ['The applicant is to file and serve settled plans in response to the findings by 9 April 2010.' 'The respondent is to file revised settled conditions of consent by 16 April 2010.' 'Following compliance with Directions 1 and 2 Orders will be made granting conditional consent.' 'The matter is set down for a mention...