Lane v Manly Council

Lane v Manly Council - [2009] NSWLEC 1329 - NSWLEC 2009 case summary — Zoe

[17]

16 Subclause 3 of clause 13 states: Land to which this clause applies may be developed for any purpose, with the consent of the council, until that land is acquired by the public authority concerned where the council is satisfied that the carrying out of that development will not adversely affect the usefulness of the land for the purposes for which it has been reserved. 17 Clause 17 relates to visual and aesthetic protection of certain land and states that: The council shall not grant consent to the carrying out of development unless it is satisfied that the development will not have a detrimental affect on the amenity of the Foreshore Scenic Protection Area. 18 For development in the vicinity of an item of the environmental heritage cl 19 states: The council shall not grant consent to a development application to carry out development in the vicinity of an item of the environmental heritage unless it has made an assessment of the effect which the carrying out of that development will have on the historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the item of the environmental heritage and its setting. 19 The Sydney Regional Environmental Plan (Sydney Harbour) 2005 ("SHREP") applies to the site.The SHREP has the following aims with respect to the Sydney Harbour Catchment: (a) to ensure that the catchment, foreshores, waterways and islands of Sydney Harbour are recognised, protected, enhanced and maintained; (i) as an outstanding natural asset, and (ii) as a public asset of national and heritage significance, for existing and future generations, (b) to ensure a healthy, sustainable environment on land and water, (c) to achieve a high quality and ecologically sustainable urban environment, (d) to ensure a prosperous working harbour and an effective transport corridor, (e) to encourage a culturally rich and vibrant place for people, (f) to ensure accessibility to and along Sydney Harbour and its foreshores, (g) to ensure the protection, maintenance and rehabilitation of watercourses, wetlands, riparian lands, remnant vegetation and ecological connectivity, (h) to provide a consolidated, simplified and updated legislative framework for future planning. 20 The site is located within the Foreshores and Waterways Area pursuant to SHREP and there are several matters that need to be considered by consent authorities before granting consent to development in this area. The relevant matters for the current proposal include: Clause 25 - Foreshore and waterways scenic quality (a) the scale, form, design and siting of any building should be based on an analysis of: (i) the land on which it is to be erected, and (ii) the adjoining land, and (iii) the likely future character of the locality, (b) development should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands, foreshores and tributaries, (c) the cumulative impact of water-based development should not detract from the character of the waterways and adjoining foreshores. Clause 26 - Maintenance, protection and enhancement of views (a) development should maintain, protect and enhance views (including night views) to and from Sydney Harbour, (b) development should minimise any adverse impacts on views and vistas to and from public places, landmarks and heritage items, (c) the cumulative impact of development on views should be minimised. 21 The SHREP contains heritage provisions for the protection of items listed under this instrument. The subject site does not contain any heritage items pursuant to SHREP, however, there are several items in the vicinity of the site. The heritage items under SHREP in the vicinity of the site include Little Manly Cove Pool Stuart Street (Item 20), site and remains of Brightside cargo wharf Stuart Street (Item 22) and site and remains of harbour side pool and steps Stuart Street, Manly (Item 23). Before granting development consent to development in the vicinity of a heritage item, the consent authority must assess the impact of the proposed development on the heritage significance of the heritage item (Clause 59).

[20]

(2) The rebuilding: (a) must be for the existing use of the building or work and for no other use, and (b) must be carried out only on the land on which the building or work was erected or carried out immediately before the relevant date. Issues 25 The respondent provided a Statement of Contentions known as Exhibit 6 in the proceedings. The issues can be summarised as follows: 1. It is contended that the proposal may not be entitled to rely on existing use rights. 2. The proposal would have excessive bulk and height and would have inadequate setbacks with regard to its physical context. Particulars: The FSR is 0.79:1 the proposal is 3-storeys high with a maximum wall height of 7.7 and 8.8 on the end gables above ground level. The footprint of the proposal significantly exceeds the existing stubs. The setbacks are inadequate. 3. The proposal is not complimentary to the visual amenity of the Little Manly Reserve area and it will have an adverse effect on the scenic quality because of its bulk and scale and it would be out of character with permissible development in the open space zone. 4. Heritage impact: the proposal is in the vicinity of two heritage items and in particular the elevated concrete driveway will adversely effect the curtilage of No. 34 Stuart Street; 5. Swimming pool and external works: the proposal adjoins the open space reserve and a generous setback in the order of 6 to 8 m is required as a buffer to the public open space. 6. Six inadequate and inappropriate car parking arrangements, the proposal provides unworkable off street parking in an area of high on street parking demand. The proposal relies on stacked car parking and it is not safe for pedestrians due to restricted sight line and does not respond to or respect the streetscape and open space zone. 7. Loss of views: the proposal results in view loss to development to the north east side of Stuart Street. 8. The proposal is detrimental to streetscape of the zone and it would create adverse impacts with an uncharacteristic elevated concrete bridge. 9. The proposal is not in the public interest. The public benefit of restoring the subject site to open space is a major benefit that is the subject of statutory acquisition provisions and adopted management plan and the proposal is inconsistent with the existing and future surrounding development of land as set out in the Little Manly Coast Line Management Plan. 10. Suitability of the site for development, climate change is expected to have adverse affects on sea levels and the subject site is flat and the precautionary approach to encourage an open space unit use as reflected in the zoning is required.

[32]

39 On Issue 4 that the proposal is in the vicinity of heritage items Mr Staas comments that the site has been alienated by development since 1900 and has in its present configuration been part of a visual curtilage of the foreshore since 1925 and forms part of much wider built in environment surrounding Little Manly Cove. He comments that additionally as proportion of the entire foreshore the subject site is minimal and that the council did not deem the kiosk as adverse to the foreshore and did not consider that the boat storage area or the public car parking to be adverse. He states that: "to separate the historic residential uses from these other visually detracting uses can not in his opinion be sustained." 40 Mr Staas in his assessment states: "The presentation of the proposed building to Stuart Street has no impact on the views from the harbour or the beach with the landscaped rear yard substantially retaining it's existing visual contribution to the edge of the beach. Historically the site has been part of urban development that edges the beach…The separation and the context mitigate any perceived impacts". 41 Ms Smith comments that: "The site is part of the curtilage of the harbour foreshore of Little Manly Cove and is significant in respect of historic, aesthetic and representative criteria… The boat facilities and the amenities are considered acceptable attributes to the harbour foreshore area. The proposed development, which reinforces the residential use is considered inappropriate particularly as it is situated on the sandy soil of Little Manly Cove and in close proximity to the waters edge." 42 On the question of curtilage of the heritage item Mr Staas says that there is no disagreement that the site falls within the original bay of Little Manly Cove, however it has been developed in its current form for at least 84 years and while it is attached to the foreshore this does not imply that they should be returned to their pre-European settlement condition. He comments further that the fact that the treatment of the land at the south has little resemblance to the original character of the cove and is unsympathetic to its original landscape character. Ms Smith on the other hand considers that the site is an intrinsic part of the harbour foreshore.

[46]

59 The Court was taken to the judgement of Shire of Perth v O'Keefe and Anor [1968 Vol 110 CLR] WASC. Once depart from the broad categories that are found in the prohibitory by-laws, it is said, and there is no limit to the minuteness of detail that may enter into the description of a purpose so as to form an essential part of it. But at the outset it is necessary to observe that the "existing use" by-laws take two steps, which should be kept distinct from one another. First it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by-laws. Then the provision is made that the land may continue to be used for that purpose: not that the precise manner of use for that purpose may alone continue but that use generally for that purpose may continue. The application of the by-law in a particular case has therefore not be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. This question being answered, it remains only to inquire, when a use that is being made of the premises at a later date is challenged as not being authorized by by-law 372, whether that use is really and substantially a use for the designated purpose. That will often be a question of fact and degree: cf. Marshall v Nottingham Corporation(1); and for that reason border-line cases will inevitably arise in which opinions will differ. ... But to seek more precise guidance from the by-laws is vain. The general considerations that have been mentioned will suffice for most cases. If premises were being used as professional offices at the commencement of the by-laws, no greater degree of particularity in defining the purpose is likely to appeal to practical minds as appropriate in the application of town-planning legislation than is involved in saying that the purpose is that of professional offices"......"such ranges of activities as may be described in the ordinary use of language by expressions descriptive of trades, industries, manufactures, shops or places of public amusement, such as the expression 'retail butcher's shop' ", rather than " to the details of the particular aggregation of activities".

At a glance

Court

Decision date

Before

Source

Judgment (78 paragraphs)

Parties

Cases Cited (3)

Cited By (1)