Tricon Services Group Pty Limited v Manly Council

Judgment 1Tricon Services Group Pty Limited proposes to erect a five-storey commercial and residential building at 46 - 48 North Steyne, Manly. Its development application was refused by the Council. Its subsequent appeal to the Court was dismissed by Acting Senior Commissioner Brown: Tricon Services Group Pty Limited v Manly Council [2011] NSWLEC 1271. Tricon then appealed against that decision under s 56A of the Land and Environment Court Act 1979, alleging errors of law. That appeal was heard by the Chief Judge who upheld the appeal and remitted the matter to the commissioner for determination: Tricon Services Group Pty Limited v Manly Council (No 2) [2011] NSWLEC 253. Following the remitted hearing the commissioner again dismissed the appeal and refused consent: Tricon Services Group Pty Limited v Manly Council (No 3) [2012] NSWLEC 1145. Tricon now appeals again on a question of law under s 56A of the Act against the commissioner's decision on the remitted hearing. 2The principal issue is the correct interpretation and application of the relevant height controls. Tricon's land is in the Manly Town Centre, in which the Development Control Plan for the Business Zone applies. However, Tricon's development also includes residential apartments. Clause 4 of the Business Zone DCP states that regard must be had to the objectives and relevant controls of the Council's DCP for the Residential Zone for residential development within the Business Zone. 3It follows that both the Business Zone DCP and the Residential Zone DCP apply. A development control plan is not an "environmental planning instrument" as defined in s 4 of the Environmental Planning and Assessment Act 1979. It is nevertheless something that must be taken into consideration in determining a development application: s 79C(1)(b)(iii). Moreover, it has to be considered as a "fundamental element" in or a "focal point" of the decision making process: Zhang v Canterbury City Council [2001] NSWCA 167, 51 NSWLR 589, 115 LGERA 373 at [74] - [75]. As noted above, the principal question is whether the commissioner correctly construed and applied the height controls of those provisions. 4Clause 1.2 of the Business Zone DCP is headed "building heights". Subclause 1 relevantly states: