Linforth v Manly Council [2012] NSWLEC 1352

Linforth v Manly Council [2012] NSWLEC 1352

Even though the proposal does not comply with several numerical controls in the DCP, it achieves the objectives of these controls. The impact on adjoining development, particularly the retention of views, is acceptable. Appropriate conditions relating to reduction in building height, side setbacks, and privacy screening are to be imposed.

Parties
Applicant: Steven & Stanislawa Linforth; Respondent: Manly Council
Jurisdiction
Australia
Judgment Date
19 December 2012
Procedural Posture
Appeal Against Refusal of Development Application / Judgment Delivered After Hearing
Outcome
Development application approved subject to conditions
Legal Topics
Development Application, Residential Flat Building, Design Controls, Amenity Impacts, View Loss, Landscaping
Planning Law Development Application Residential Flat Building Design Controls Amenity Impacts View Loss Landscaping

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Parties

Steven & Stanislawa Linforth

Applicant

Manly Council

Respondent

Procedural Posture

Appeal Against Refusal of Development Application / Judgment Delivered After Hearing

Legal Issues

  1. 1 Whether the proposed development adversely impacts the amenity of adjoining residents, principally through view loss
  2. 2 Whether the non-compliance with planning controls is acceptable given the objectives are met
  3. 3 Whether view loss from adjoining properties is minimised

Ratio Decidendi

Even though the proposal does not comply with several numerical controls in the DCP, it achieves the objectives of these controls. The impact on adjoining development, particularly the retention of views, is acceptable. Appropriate conditions relating to reduction in building height, side setbacks, and privacy screening are to be imposed.

Court Disposition

Development application approved subject to conditions

Orders

  • Applicant to file and serve plans by 21 January 2013 incorporating changes in draft conditions and plans, including a planter box along the western boundary to provide screen planting to a height of 2.5 m
  • Parties to file agreed conditions reflecting the decision by 28 January 2013