Tricon Services Group Pty Limited v Manly Council (No 2) [2011] NSWLEC 253

Tricon Services Group Pty Limited v Manly Council (No 2) [2011] NSWLEC 253

The Commissioner erred on questions of law by construing the height control map heights as substituted maximum wall heights under cl 1 of section 1.2, by treating cl 1(ii) as an opportunity to depart from those substituted heights, and by asking whether view loss outweighed townscape impacts when applying cl 1(ii). Properly construed, cl 1 prohibits maximum wall height exceeding 15 metres except where one of cl 1(i)-(iii) applies; those exceptions do not create substituted maximum wall heights, and cl 1(ii) is to be determined by reference to its terms, cl 3 and the townscape objectives, not by weighing unrelated view loss impacts. Those errors were fundamental and vitiated the...

Jurisdiction
Australia
Judgment Date
16 December 2011
Procedural Posture
Class 1 Appeal Under S 56 A(1) of the Land and Environment Court Act 1979 Against a Commissioner's Decision Refusing Development Consent / Determination of Appeal on Questions of Law
Outcome
Appeal upheld; Commissioner's decision and orders set aside; matter remitted to the Commissioner for determination in accordance with the Court's decision; costs awarded to the applicant.
Legal Topics
['development Application' 'development Control Plan Construction' 'building Height Controls' 'question of Law Appeal' 'procedural Fairness' 'relevant and Irrelevant Considerations' 'remitter' 'costs']
['planning and Environment Law' 'administrative Law'] ['development Application' 'development Control Plan Construction' 'building Height Controls' 'question of Law Appeal' 'procedural Fairness' 'relevant and Irrelevant Considerations' 'remitter' 'costs']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 56 A(1) of the Land and Environment Court Act 1979 Against a Commissioner's Decision Refusing Development Consent / Determination of Appeal on Questions of Law

Legal Issues

  1. 1 ['Whether the Commissioner misconstrued section 1.2 "Building Heights" and the "Maximum Building Height" provisions of the Manly Development Control Plan for the Business Zone 1989 (Amendment 7).' 'Whether the Commissioner asked the wrong question in applying cl 1(ii) of section 1.2 of the Business Zone DCP by weighing view loss against townscape impacts.' 'Whether the Commissioner erred by relying on evidence founded on an erroneous construction of the Business Zone DCP.' 'Whether the Commissioner erred by taking into consideration cl 4.3 of the Manly Development Control Plan for the Residential Zone 2007 - Amendment 1.' 'Whether the matter should be remitted to a different Commissioner.']

Ratio Decidendi

The Commissioner erred on questions of law by construing the height control map heights as substituted maximum wall heights under cl 1 of section 1.2, by treating cl 1(ii) as an opportunity to depart from those substituted heights, and by asking whether view loss outweighed townscape impacts when applying cl 1(ii). Properly construed, cl 1 prohibits maximum wall height exceeding 15 metres except where one of cl 1(i)-(iii) applies; those exceptions do not create substituted maximum wall heights, and cl 1(ii) is to be determined by reference to its terms, cl 3 and the townscape objectives, not by weighing unrelated view loss impacts. Those errors were fundamental and vitiated the...

Court Disposition

Appeal upheld; Commissioner's decision and orders set aside; matter remitted to the Commissioner for determination in accordance with the Court's decision; costs awarded to the applicant.

Orders

  • ['The appeal is upheld.' 'The decision and orders of the Commissioner dated 30 August 2011 are set aside.' 'The matter is remitted to the Commissioner for determination by the Commissioner in accordance with the decision of the Court.' "The respondent is to pay the applicant's costs of the appeal." "The respondent...