Tricon Services Group Pty Limited v Manly Council (No 4) [2012] NSWLEC 238

Tricon Services Group Pty Limited v Manly Council (No 4) [2012] NSWLEC 238

The commissioner correctly treated the maximum 10m and 12m building height controls as continuing to apply, considered the proposal against the townscape provisions in the Business Zone DCP, and separately considered view loss under the Residential Zone DCP. It was not an error of law to compare the proposal with a compliant building, to make a qualitative assessment of view loss, or to proceed on the original evidence supplemented by further material on the remitted hearing. The commissioner's judgment disclosed no error of law.

Jurisdiction
Australia
Judgment Date
24 October 2012
Procedural Posture
Class 1 Appeal Under S 56 a of the Land and Environment Court Act 1979 / Appeal on a Question of Law From a Commissioner's Decision on a Remitted Hearing
Outcome
Appeal dismissed.
Legal Topics
['development Application' 'development Control Plan' 'height Controls' 'view Loss' 'appeal on Question of Law' 'remitted Hearing']
['environmental and Planning Law' 'land and Environment Court Procedure'] ['development Application' 'development Control Plan' 'height Controls' 'view Loss' 'appeal on Question of Law' 'remitted Hearing']

Case Brief

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Procedural Posture

Class 1 Appeal Under S 56 a of the Land and Environment Court Act 1979 / Appeal on a Question of Law From a Commissioner's Decision on a Remitted Hearing

Legal Issues

  1. 1 ['Whether the commissioner failed to apply the Development Control Plan for the Business Zone in breach of s 79C of the Environmental Planning and Assessment Act 1979.' 'Whether the commissioner adopted an erroneous construction of cl 1.2 of the Development Control Plan for the Business Zone.' 'Whether the commissioner erred in comparing the proposed building with a building complying with the 10m and 12m height controls.' 'Whether the commissioner erred in adopting conclusions of Mr Layman concerning view loss.' 'Whether the commissioner failed to conduct a rehearing on remitter.']

Ratio Decidendi

The commissioner correctly treated the maximum 10m and 12m building height controls as continuing to apply, considered the proposal against the townscape provisions in the Business Zone DCP, and separately considered view loss under the Residential Zone DCP. It was not an error of law to compare the proposal with a compliant building, to make a qualitative assessment of view loss, or to proceed on the original evidence supplemented by further material on the remitted hearing. The commissioner's judgment disclosed no error of law.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' 'The judgment and orders of the commissioner made on 1 June 2012 are confirmed.' "The appellant must pay the respondent's costs."]