Donohoe v Manly Council [2013] NSWLEC 1113

Donohoe v Manly Council [2013] NSWLEC 1113

The proposal in its current form could not be approved because the excavation beneath Townhouse 3 and removal of the rock outcrop were not shown to be necessary and did not meet the DCP objectives for excavation, floor space ratio and landscaping, and because the excess FSR and balcony/roof configuration contributed to unacceptable bulk. However, the impacts would be acceptable if the basement, Townhouse 3 layout, balconies, roof overhang and plan discrepancies were amended as identified by the Court.

Jurisdiction
Australia
Judgment Date
02 July 2013
Procedural Posture
Class 1 Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Principal Judgment; Directions Made and Final Orders to Be Issued in Chambers
Outcome
Final orders reserved; applicant directed to advise whether plans will be amended, with dismissal of the appeal if amendments are not made and upholding of the appeal if amended plans and conditions are finalised consistently with the decision.
Legal Topics
['townhouse Development' 'floor Space Ratio and Bulk' 'excavation and Earthworks' 'landscape Features' 'privacy Impacts' 'view Loss']
['environmental and Planning Law' 'development Applications' 'local Government'] ['townhouse Development' 'floor Space Ratio and Bulk' 'excavation and Earthworks' 'landscape Features' 'privacy Impacts' 'view Loss']

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Procedural Posture

Class 1 Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Principal Judgment; Directions Made and Final Orders to Be Issued in Chambers

Legal Issues

  1. 1 ['Whether the extent of excavation, including removal of the sandstone rock outcrop, was acceptable under the applicable planning controls.' 'Whether the proposed floor space ratio and building bulk were acceptable having regard to impacts on adjoining properties and the streetscape.' 'Whether the proposal caused unacceptable privacy impacts or view loss.' 'Whether amendments could make the development application acceptable.']

Ratio Decidendi

The proposal in its current form could not be approved because the excavation beneath Townhouse 3 and removal of the rock outcrop were not shown to be necessary and did not meet the DCP objectives for excavation, floor space ratio and landscaping, and because the excess FSR and balcony/roof configuration contributed to unacceptable bulk. However, the impacts would be acceptable if the basement, Townhouse 3 layout, balconies, roof overhang and plan discrepancies were amended as identified by the Court.

Court Disposition

Final orders reserved; applicant directed to advise whether plans will be amended, with dismissal of the appeal if amendments are not made and upholding of the appeal if amended plans and conditions are finalised consistently with the decision.

Orders

  • ['The applicant is to advise the Court by ecourt on 5 July 2013 whether he intends to amend the plans to reflect this decision.' 'If so, the applicant is to file and serve amended plans incorporating the changes by 16 July 2013.' 'The parties are to file agreed conditions by 23 July 2013.' 'Final Orders will be...