Daly v Manly Municipal Council [1988] NSWLEC 151

Daly v Manly Municipal Council [1988] NSWLEC 151

The subject land was in a Residential Zone, and the Foreshore Scenic Protection Area designation was an area description, not a zone identified by Schedule 2 to Sydney Regional Environmental Plan No. 12. It was therefore open to the Council to consent under cl.8(c)(ii). Although cl.11(1)'s 3.6 metre height restriction applied because the proposal involved structural alterations amounting to erection for the purposes of the Act, the SEPP 1 objection was upheld because the building had already been approved and erected to 7.6 metres and no material change to its external height or structure was proposed. The development otherwise satisfied the applicable planning instruments, and building...

Jurisdiction
Australia
Judgment Date
06 December 1988
Procedural Posture
Class 1 Appeal Against Refusal of Development Consent and Class 2 Appeal Concerning Failure to Determine a Building Application / Final Judgment on Appeals
Outcome
Both appeals allowed; development consent and building approval granted, with building approval subject to conditions; no order for costs.
Legal Topics
['development Consent' 'dual Occupancy' 'building Approval' 'environmental Planning Instruments' 'development Standards' 'foreshore Scenic Protection Area']
['planning and Environment Law' 'local Government Law'] ['development Consent' 'dual Occupancy' 'building Approval' 'environmental Planning Instruments' 'development Standards' 'foreshore Scenic Protection Area']

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Procedural Posture

Class 1 Appeal Against Refusal of Development Consent and Class 2 Appeal Concerning Failure to Determine a Building Application / Final Judgment on Appeals

Legal Issues

  1. 1 ['Whether Sydney Regional Environmental Plan No. 12 - Dual Occupancy applied to the proposed conversion of the garage building to dual occupancy.' 'Whether the subject land was excluded from cl.8(c) of Sydney Regional Environmental Plan No. 12 because it was in a Foreshore Scenic Protection Area under the Manly Local Environmental Plan 1988.' 'Whether the height restriction in cl.11(1) of Sydney Regional Environmental Plan No. 12 applied to conversion of an existing building involving structural alterations.' 'Whether objection under State Environmental Planning Policy No. 1 should be upheld because the 3.6 metre height development standard was unreasonable or unnecessary in the circumstances.' 'Whether development consent could be granted under the Manly Local Environmental Plan 1988 independently of Sydney Regional Environmental Plan No. 12.' 'Whether building approval should be granted and on what conditions.']

Ratio Decidendi

The subject land was in a Residential Zone, and the Foreshore Scenic Protection Area designation was an area description, not a zone identified by Schedule 2 to Sydney Regional Environmental Plan No. 12. It was therefore open to the Council to consent under cl.8(c)(ii). Although cl.11(1)'s 3.6 metre height restriction applied because the proposal involved structural alterations amounting to erection for the purposes of the Act, the SEPP 1 objection was upheld because the building had already been approved and erected to 7.6 metres and no material change to its external height or structure was proposed. The development otherwise satisfied the applicable planning instruments, and building...

Court Disposition

Both appeals allowed; development consent and building approval granted, with building approval subject to conditions; no order for costs.

Orders

  • ['No. 10599 of 1987: Appeal allowed.' 'No. 10599 of 1987: Order that development consent be given to the conversion of the existing garage at 3 Linkmead Avenue, Clontarf, to dual occupancy as proposed by the applicant in his development application to the respondent No. 2288/87.' 'No. 10599 of 1987: No order for...