Rothwell v Manly Council [2007] NSWLEC 479

Rothwell v Manly Council [2007] NSWLEC 479

The proposal did not comply with fundamental requirements of DCP 2007 for FSR, two storey height and excavation, and would read as a three storey building from the water and opposite foreshore. Its landform, boundary treatment and reduced ability to provide significant landscaping differed materially from the original approval and would create an inappropriate visual impact on the Esplanade Park heritage item and foreshore scenic protection area. There were no circumstances or specific physical site constraints warranting approval, so the appeal failed and DA 570/06 was refused.

Jurisdiction
Australia
Judgment Date
31 July 2007
Procedural Posture
Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application DA 570/06 / Ex Tempore Judgment
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application for Alterations and Additions to Residential Flat Building' 'floor Space Ratio' 'building Height, Bulk and Scale' 'excavation and Fill' 'foreshore Scenic Protection Area' 'development in Vicinity of Heritage Item' 'development Control Plan Compliance']
['planning and Environment Law' 'development Consent' 'heritage and Foreshore Protection'] ['development Application for Alterations and Additions to Residential Flat Building' 'floor Space Ratio' 'building Height, Bulk and Scale' 'excavation and Fill' 'foreshore Scenic Protection Area' 'development in Vicinity of Heritage Item' 'development Control Plan Compliance']

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Procedural Posture

Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application DA 570/06 / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the height, bulk and scale of the proposal was consistent with the character of the area.' 'Whether the proposal had an acceptable impact on Esplanade Park as an adjoining heritage item and on the Foreshore Scenic Protection Area.' 'Whether non-compliance with the Manly Residential Development Control Plan 2007 controls for FSR, two storey height and excavation warranted refusal.']

Ratio Decidendi

The proposal did not comply with fundamental requirements of DCP 2007 for FSR, two storey height and excavation, and would read as a three storey building from the water and opposite foreshore. Its landform, boundary treatment and reduced ability to provide significant landscaping differed materially from the original approval and would create an inappropriate visual impact on the Esplanade Park heritage item and foreshore scenic protection area. There were no circumstances or specific physical site constraints warranting approval, so the appeal failed and DA 570/06 was refused.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'The development application (DA 570/06) for alterations and additions to an approved residential flat building which is currently under construction at Lots 40 and 41, DP 4682, being Nos 85 and 87 Lauderdale Avenue, Manly is refused.' 'The exhibits may be returned.']