Gleeson & Paris v Manly Council [2013] NSWLEC 1232

Land and Environment Court New South Wales

Medium Neutral Citation: Gleeson & Paris v Manly Council [2013] NSWLEC 1232 Hearing dates: 26, 27 November 2013 Decision date: 04 December 2013 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. The application to modify of DA 507/2005 granted by the council on 15 July 2007 for the erection of 2 attached dwellings and strata subdivision at 31 Boyle Street Balgowlah is determined by approving the modifications subject to the modified and consolidated conditions of development consent set out in Annexure A. 3. The exhibits, other than exhibits 1 and F, are returned. Catchwords: MODIFICATION: previous approval for 2 attached dwellings and strata subdivision - modification sought for extension of the approved second floor to include a third bedroom, including an additional access stair - reconfiguration of the internal layout by relocating the kitchen and dining room - bulk, scale and overshadowing impacts - streetscape impacts - unacceptable loss of privacy Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Gleeson & Paris (Applicant) Manly Council (Respondent) Representation: Mr M Wright, barrister (Applicant) Ms C Rose, solicitor (Respondent) Tony Sattler & Associates Pty Ltd (Applicant) Maddocks Lawyers (Respondent) File Number(s): 10315 of 2013

Judgment 1COMMISSIONER: This appeal relates to the refusal by Manly Council of an application to modify the approval of DA 507/2005 granted by the council on 15 July 2007 for the erection of 2 attached dwellings (dwellings 31A and 31B) and strata subdivision at 31 Boyle Street Balgowlah (the site). The two dwellings are partially constructed. 2The proceedings commenced on site on 26 November 2013 however due to the illness of the councils town planner, the proceedings were adjourned until the following day where the parties agreed that the hearing could proceed as a On Site Hearing, pursuant to s 34B of the Land and Environment Court Act 1979. 3The significant modifications involve: * an extension of the approved second floor to include a third bedroom, including an additional access stair, * reconfiguration of the internal layout by relocating the kitchen and dining room. 4The council maintains that the application should be refused as: * the third bedroom creates unacceptable bulk, scale and overshadowing impacts, * the third bedroom access stair creates unacceptable streetscape impacts, * the loss of privacy from the new kitchen location and the new third bedroom window are unacceptable, and * the plans are inaccurate. 5The site is within Zone R1 General Residential under Manly Local Environmental Plan 2013 (LEP 2013), which was gazetted on 19 April 2013. The coming into effect of LEP 2013 post dates the modification application which was lodged with the council on 26 February 2013. The environmental planning instrument that preceded LEP 2013 was Manly Local Environmental Plan 1988 (LEP 1988) where the site was within Zone No 2 - Residential Zone. The councils submits that the application is subject to the savings provisions in cl 1.8A however this clause applies only to "a development application has been made before the commencement of this Plan" and not a modification application. The applicability of cl 1.8A was not argued to any extent at the hearing. 6In any event, s 96(3) provides that "the consent authority must take into consideration such of the matters referred to in s79C (1) as are of relevance to the development the subject of the application". This calls up general matters such as "any development control plan" (s79C(1)(a)(iii)), "the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality" (s79C(1)(b)) and "the suitability of the site for the development" (s79C(1)(c)). 7In a similar fashion to cl 1.8A, cl 1.3 of Manly Development Control Plan 2013 Amendment 1 (DCP 2013) that came into force at the same time as LEP 2013, revokes Manly Development Control Plan for the Residential Zone (Amendment 1)(the Residential DCP) that applied to the site, prior to the coming into effect of DCP 2013. The savings provisions in DCP 2013 also makes reference to cl 1.8A and "development applications" rather than modifications so for the same reasons mentioned earlier, the question of whether a modification application is captured by cl 1.4 of DCP 2013 is questionable and was not argued to any extent at the hearing. 8Given the potential non applicability of the savings provisions in LEP 2013 and DCP 2013, the issue of whether the applicable planning instruments for this appeal are those at the time of lodgement of the modification, being LEP 1988 and the Residential DCP or those that applied at the time of the hearing, being LEP 2013 and DCP 2013 was also not addressed. 9As the councils contentions and the expert evidence considered the application under both sets of planning controls, I propose to do the same. Ultimately, this is not of great moment as the development is permissible under both sets of planning controls and there was a degree of consistency with the development standards although sometimes expressed differently in the different documents.