Whittaker v Northern Beaches Council [2017] NSWLEC 1379

Land and Environment Court New South Wales

Medium Neutral Citation: Whittaker v Northern Beaches Council [2017] NSWLEC 1379 Hearing dates: 5 July 2017 Date of orders: 20 July 2017 Decision date: 20 July 2017 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The objection pursuant to cl 4.6 of the Manly Local Environmental Plan 2013 is not sustained. (2) The appeal is dismissed. (3) Development application 189/2016 for alterations and additions to an existing dwelling house at 10 Carlton Street, Manly, to raise the house to create a new undercroft area to accommodate two parking spaces and storage and to construct a new driveway, with associated works for new internal and external stairs, privacy screens and landscaping, is refused. (4) The exhibits are returned, except for exhibits A, B and 1. Catchwords: DEVELOPMENT APPEAL – Dwelling in a heritage conservation area – proposal to lift the cottage to create undercroft for parking and storage – role of expert evidence - breach of height control - whether request to vary height control satisfactorily deals with requisite matters – failure to identify a environmental planning ground – whether the objectives of the height control are met – proposal does not meet objectives of the height control based on expert evidence – appeal dismissed Legislation Cited: Environmental Planning and Assessment Act 1979 s79C Land and Environment Court Act 1979 s39 Manly Development Control Plan 2013 Manly Local Environmental Plan 2013 cl 2.3, 4.3, 4.4, 4.6, 5.10 Uniform Civil Procedure Rules 2005 Part 31 Cases Cited: Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1008 Glenayr Avenue Pty Ltd v Waverley Council [2013] NSWLEC 125 Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Category: Principal judgment Parties: David Whittaker (First Applicant) Vanessa Wilton (Second Applicant) Northern Beaches Council (Respondent) Representation: Mr Whittaker, in person Ms Wilton, in person