Tricon Services Group Pty Limited v Manly Council [2011] NSWLEC 1271

Tricon Services Group Pty Limited v Manly Council [2011] NSWLEC 1271

Although the DCP allowed consideration of height above the mapped 10 m and 12 m controls to achieve a better relationship with adjoining development and townscape objectives, there was no obligation to replicate adjoining building heights and townscape objectives did not override other planning impacts. The additional height would cause severe view loss from Levels 4 and 5 and moderate view loss from Level 6 of the Waves building, while a compliant 10 m and 12 m building would have minimal, if any, adverse townscape impact. On balance, the unacceptable view loss outweighed any townscape benefit from the increased height, so the appeal was dismissed and the development application refused.

Jurisdiction
Australia
Judgment Date
30 August 2011
Procedural Posture
Class 1 Appeal Against Refusal of Development Application Da13/2010 / Principal Judgment
Outcome
The appeal is dismissed and DA13/2010 is refused.
Legal Topics
['development Application' 'mixed Commercial/residential Development' 'building Height' 'view Loss' 'floor Space Ratio' 'development Control Plan Interpretation']
['planning and Environment Law'] ['development Application' 'mixed Commercial/residential Development' 'building Height' 'view Loss' 'floor Space Ratio' 'development Control Plan Interpretation']

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application Da13/2010 / Principal Judgment

Legal Issues

  1. 1 ["Whether the proposed development's exceedance of the 10 m and 12 m height controls was acceptable under the Manly Development Control Plan for the Business Zone 1989 having regard to townscape objectives." 'Whether the proposed development would cause unacceptable view loss from apartments in the Waves building.' 'Whether the alleged breach of the residential floor space ratio warranted refusal of the development application.']

Ratio Decidendi

Although the DCP allowed consideration of height above the mapped 10 m and 12 m controls to achieve a better relationship with adjoining development and townscape objectives, there was no obligation to replicate adjoining building heights and townscape objectives did not override other planning impacts. The additional height would cause severe view loss from Levels 4 and 5 and moderate view loss from Level 6 of the Waves building, while a compliant 10 m and 12 m building would have minimal, if any, adverse townscape impact. On balance, the unacceptable view loss outweighed any townscape benefit from the increased height, so the appeal was dismissed and the development application refused.

Court Disposition

The appeal is dismissed and DA13/2010 is refused.

Orders

  • ['The appeal is dismissed.' 'DA13/2010 for the demolition of all existing improvements and the construction of a mixed commercial/residential development at 46, 47 and 48 North Steyne, Manly is refused.' 'The exhibits are returned with the exception of exhibit 1.']