Lynne Redan and Phillip Redan v Manly Council [2006] NSWLEC 384

Land and Environment Court of New South Wales

CITATION : Lynne Redan and Phillip Redan v Manly Council [2006] NSWLEC 384

APPLICANT: PARTIES : Lynne Redan and Phillip Redan RESPONDENT: Manly Council

FILE NUMBER(S) : 10270 of 2006

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Heritage - Open space - Urban design and streetscape

Manly Local Environmental Plan 1988, (MLEP) Manly Development Control Plan for the Residential Zone 2001, Amendment 1, (RDCP) LEGISLATION CITED: The Manly Town Centre Urban Design Guidelines 2002, (Guidelines) Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, (SREPSH) Manly Development Control Plan for Energy Efficient Buildings 1998, (DCPEEB) Environmental Planning and Assessment Act 1979, 79C and 97

DATES OF HEARING: 27/06/2006

EX TEMPORE JUDGMENT DATE : 06/27/2006

APPLICANT: Mr M McMahon, solicitor SOLICITORS: LEGAL REPRESENTATIVES: M E McMahon & Associates RESPONDENT: Mr S N Griffiths, solicitor SOLICITORS: Pike Pike & Fenwick Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

27 June 2006

10270 of 2006 - Lynne Redan and Phillip Redan v Manly Council

JUDGMENT Introduction 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Manly Council (the council) to refuse a development application to alter and add to a terraced dwelling to provide a hardstand car parking area and the associated demolition works at Lot C, DP913617, being No 21 East Esplanade, Manly. 2 I visited the land in company with the parties on the morning of the on-site hearing. 3 I have concluded that the application should fail as it would decrease the extent of open space on the land and would be contrary to the intention of the Foreshore Scenic Protection Area. The land 4 The land is situated on the eastern side of East Esplanade between Ashburner Street and Victoria Avenue, Manly. It has a skewed frontage to East Esplanade of 5.690m, a rear boundary of 5.620m, an average depth of 29.39m and an area of some 165.2m2. 5 The land is flat and erected upon it is a two-storey terraced house, part of a row of four terraces known as the 'Strand' at Nos 20-23 East Esplanade. East Esplanade is in the tradition of the grand waterfront boulevard and any development applications involving changes to building façades must be carefully considered by the consent authority. 6 The land is serviced and has views over Manly Cove part of Sydney Harbour. 7 In February 1980 the council approved alterations to No 23 East Esplanade, and included a roof studio, internal laundry, parking bay and street front dormers. Relevant planning controls Manly Local Environmental Plan 1988, (MLEP) 8 Clause 3(1)(i) of the MLEP the aim and objective of the plan is: to preserve and enhance the amenity of defined environmentally sensitive areas, public places and areas visible from public places or from navigable waters around the Municipality. 9 Under the provisions of the MLEP the land is zoned Zone No 2 (Residential) and the 'Tourist Area' and the proposal is permissible with consent. Of importance to this case is Objective (d) of the Residential Zone No 2: …to ensure that building form, including alterations and additions, does not degrade the amenity of surrounding residents or the existing quality of the environment, 10 Under the provisions of the MLEP the relevant clauses are: cl 3 (Aims & Objectives), cl 4 (Policies & Strategies), cl 10 (zoning), and cl 19 (development within the vicinity of an item of environmental heritage). 11 East Esplanade opposite the subject is a landscape item of environmental heritage listed in Schedule 4 of the MLEP. The subject premises is not listed as an item of environmental heritage or is it within a conservation area. Manly Development Control Plan for the Residential Zone 2001, Amendment 1, (RDCP) 12 Of importance is the aims and objectives of the RDCP and in particular A5(d) and (f), [Note: Exhibit 6, p (i)) (d) To increase the availability and variety of dwellings to enable population growth without having adverse effects on the character, amenity and natural environment of the residential areas, (e) … (f) To protect the amenity of existing and future residents.