Amate v Manly Council [2007] NSWLEC 585

Land and Environment Court of New South Wales

CITATION : Amate v Manly Council [2007] NSWLEC 585

APPLICANT Patrick and Gemma Amate PARTIES : RESPONDENT Manly Council

FILE NUMBER(S) : 10618 of 2007

CORAM: Tuor C

KEY ISSUES: Section 96 Application :- delete condition requiring pergola to be setback from boundary privacy, visual bulk and overshadowing impacts on adjoining property

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 23 August 2007

EX TEMPORE JUDGMENT DATE : 23 August 2007

APPLICANT Mr S Klinger, solicitor

LEGAL REPRESENTATIVES:

RESPONDENT Ms C Schofield, solicitor of Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

23 August 2007

10618 of 2007 Patrick and Gemma Amate v Manly Council

JUDGMENT 1 This is an appeal against a condition of consent (Condition 42) imposed on a s 96 application by Manly Council. The original development approval (1230/98) was for two storey house with swimming pool at 44 Ellery Parade, Seaforth (the site). The s 96 application seeks approval for a pergola (Vergola) over a terrace area which has already been constructed. 2 The site, its context, the history of the application and the planning controls are set out in the Statement of Basic Facts. 3 Condition 42 requires the pergola to be set back approximately 2.4 metres to be in line with the setback of the patio adjoining the house. The original development approval for the house included stairs adjoining the patio and a retaining wall with an outdoor barbeque terrace. The pergola is over this outdoor terrace. 4 The purpose of condition 42 was to remove the use of the terrace away from 46 Ellery Parade to reduce impacts of privacy. The owner of 46 Ellery Parade, Mr and Mrs Riley, had objected to the proposed pergola on the basis of impacts of privacy, visual bulk and overshadowing. Mr D Liddy, architect, spoke on their behalf at the hearing as they were away.