Panarea Investments Pty Ltd v Manly Council [2015] NSWLEC 1026

Land and Environment Court New South Wales

Medium Neutral Citation: Panarea Investments Pty Ltd v Manly Council [2015] NSWLEC 1026 Hearing dates: 5 February 2015 Decision date: 26 February 2015 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. DA30/2014 for the demolition of all improvements and the construction of a part 3 and part 5 storey mixed use development at 36-46 Sydney Road, Manly is approved subject to the conditions in Annexure A 3.The exhibits are returned with the exception of exhibits A and B Catchwords: DEVELOPMENT APPLICATION: whether condition requiring deletion of 5th storey of approval for construction of a part 3 and part 5 storey mixed use is appropriate - inconsistent with the desired streetscape - impact on views of the Pacific Ocean Legislation Cited: Environmental Planning and Assessment Act 1979 Manly Local Environmental Plan 2013 Cases Cited: State Environmental Planning Policy (Affordable Rental Housing) 2009

Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Category: Principal judgment Parties: Panarea Investments Pty Ltd (Applicant) Manly Council (Respondent) Representation: Counsel: Mr M Staunton, barrister (Applicant) Mr S Griffiths, solicitor (Respondent)

Solicitors: Gadens Lawyers (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 10753 of 2014 Publication restriction: No

Judgment 1. COMMISSIONER: On 20 November 2014, the Manly Independent Assessment Panel approved DA30/2014 for the demolition of all improvements and the construction of a part 3 and part 5 storey mixed use development comprising basement car parking, ground floor retail floor space, first floor office space and a 37 room boarding house at 36-46 Sydney Road, Manly (the site). The site also has frontages to Short Street and Central Avenue. 2. The appeal, under s97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act), centres solely on condition ANS01 which states: ANS01 The proposed Level 5 is to be deleted and replaced as non-trafficable roof level (except for maintenance) and the height of the building reduced accordingly. Plans are to be suitably amended and to be submitted to the Council/Accredited Certifier prior to the issue of the Construction Certificate. Reason: To ensure the closer compliance with Building height development standard as required by Manly LEP 2013. 1. The applicant seeks the deletion of this condition whereas the council maintains that the condition should be retained as the deletion of the condition would result in a building that would be inconsistent with the desired streetscape and character of the locality and would impact on views of the Pacific Ocean from Sydney Road.