TMG Developments Pty Limited v Manly Council [2013] NSWLEC 1099

TMG Developments Pty Limited v Manly Council [2013] NSWLEC 1099

The proposed rooftop restaurant structure was not a public water transport facility because it would not be used for transporting the public by water, and even the totality of Manly Wharf in its present and proposed commercialised form could not be regarded as being used primarily for that purpose. Clause 18(2) was therefore engaged. The proposal as submitted could not be approved because it would cause unacceptable view impacts at the eastern end and to land-water interface views from premises to the north-west. However, a modified proposal confined to the acceptable central area, with limited access structures at the western end and no development in the identified excluded eastern and...

Jurisdiction
Australia
Judgment Date
31 May 2013
Procedural Posture
Class 1 Development Application Appeal / Principal Judgment With Directions Before Final Orders
Outcome
The appeal will be upheld when revised plans and conditions reflecting the decision are provided.
Legal Topics
['development Application' 'view Impact' 'sydney Harbour Catchment Planning Controls' 'definition of Public Water Transport Facility' 'parking' 'trading Hours' 'conditions of Consent']
['environmental Planning and Development' 'land and Environment'] ['development Application' 'view Impact' 'sydney Harbour Catchment Planning Controls' 'definition of Public Water Transport Facility' 'parking' 'trading Hours' 'conditions of Consent']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal / Principal Judgment With Directions Before Final Orders

Legal Issues

  1. 1 ['Whether the proposed rooftop restaurant development at Manly Wharf was a "public water transport facility" for the purposes of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005.' 'Whether the development satisfied cl 18(2) of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, including whether it was inconsistent with relevant aims or zone objectives or would otherwise have adverse impacts.' 'Whether the proposal adequately maintained, protected and enhanced views under cl 26 of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005.' 'Whether the proposal could be approved in an amended form within the scope of the application using the amber light approach.' 'Whether parking, acoustic impacts, antisocial behaviour concerns and trading hours could be addressed by conditions.']

Ratio Decidendi

The proposed rooftop restaurant structure was not a public water transport facility because it would not be used for transporting the public by water, and even the totality of Manly Wharf in its present and proposed commercialised form could not be regarded as being used primarily for that purpose. Clause 18(2) was therefore engaged. The proposal as submitted could not be approved because it would cause unacceptable view impacts at the eastern end and to land-water interface views from premises to the north-west. However, a modified proposal confined to the acceptable central area, with limited access structures at the western end and no development in the identified excluded eastern and...

Court Disposition

The appeal will be upheld when revised plans and conditions reflecting the decision are provided.

Orders

  • ['The matter is set down before me at 9:00 AM on 19 June for mention or for a 50 minute hearing of submissions on any outstanding conditions of consent.' 'The applicant is to file and serve revised plans that reflect this decision by the close of business on Wednesday 12 June.' 'The respondent is to file and serve...