Hugo Property Holdings Pty Ltd v Manly Council [2011] NSWLEC 1259

Land and Environment Court New South Wales

Medium Neutral Citation: Hugo Property Holdings Pty Ltd v Manly Council [2011] NSWLEC 1259 Hearing dates: 22, 23 August 2011 Decision date: 23 August 2011 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. Development Application No. 358/08 for the demolition of the existing improvements, the construction of 2 x 2 storey dwellings and the Torrens Title subdivision at 30 Kitchener Street Balgowlah is approved subject to the conditions in Annexure "A". 3. The exhibits are returned with the exception of exhibits 1, A and B. Catchwords: DEVELOPMENT APPLICATION - demolition of all existing improvements, the erection of two dwellings and the Torrens Title subdivision of the new dwellings - suitability of the site for the proposed development - side setbacks - overlooking Legislation Cited: Environmental Planning and Assessment Act 1979 Manly Local Environment Plan 1988 Category: Principal judgment Parties: Hugo Property Holdings Pty Ltd (Applicant)

Manly Council (Respondent) Representation: Counsel Mr R O'Gorman-Hughes, barrister (Applicant)

Ms C Schofield, solicitor (Respondent) Solicitors MCW Lawyers (Applicant)

Pikes Lawyers (Respondent) File Number(s): 10268 of 2011

Judgment 1COMMISSIONER: This is an appeal against the refusal by Manly Council (the council) of Development Application No 358/2008 for the demolition of all existing improvements, the erection of two dwellings and the Torrens Title subdivision of the new dwellings at 30 Kitchener Street, Balgowlah (the site). 2The contentions raised by the council can be summarised as: (1)whether the site is suitable for the proposed development because of the natural features of the site and the lack of open space, (2)whether the proposal provides adequate side setbacks, and (3)whether the proposal creates unacceptable overlooking. 3The site is Lot 101 in DP 6208. It has a frontage of 12.19 m to Kitchener Street with side boundaries of 50.035 m and 52.425 m, giving a total site of around 642.8 sq m. A notable feature of the site is a significant rock outcrop towards the rear of the site that falls to a small area of land that adjoins a large pond, although most of the pond is located outside the site. The rock outcrop and small area between the pond and the rock outcrop on the site is not readily accessible from the area towards the street frontage where the proposed development is to be located. 4The locality is predominantly residential in nature consisting of single dwellings and multi-unit dwelling developments.