The facts of the case – i.e. what the case is about and the related issues
The case is an application about the redevelopment of the site which is the original shopping center and its additional land. There was proposed a commercial development with car-parking podium and residential development including taller buildings up to 11 stories.
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The issues including the height controls and FSR mainly result from the fact that the site slopes from the south-western corner down to the north-eastern corner; actually, there is a fall of about 10 meters from south to north along the Condamine Street and a 13 meters fall from Woodland Street North to Condamine Street North. There is no commercial development surrounding this site, which comprises either residential flat buildings or single dwelling houses, therefore, the buildings on this site are prominent and can be seen from distance. As a result, the impact on residents to the north in terms of privacy and visual impact is argued. It should be considered with the SEPP 1 objection. There are other issues as well, like internal amenity of the residential component of the development, the lack of retail facilities on Condamine Street, the treatment of Lane 34, the design of access points to the site including the urban design of the proposed plaza, the appropriateness of the design of the Woodland Street facility, open space, and trees.
When judging this case, unlike other cases, the council’s expectations have been provided in the development control plan and urban design documents rather than LEP. One key issue, in this case, is considering the correct approach to consider and the weight to be given to development control plans as well as detailed planning policies adopted by a council (McClellan 2004a).
This site is applied to retail development, commercial development, and residential accommodation. The shopping center is proposed to rise to the level of a concrete podium which is a car parking, dwellings, and residential facilities. The applicant is proposing that the Court should consider demolishing all the buildings that are presently on the site. Consequently, there should be a construction of a novel shopping center that will include two principal supermarkets. In addition, there will be sixty-five specialty shops. There is also a proposal to include a public plaza, ensuring that the Masonic Club is rebuilt, and include seven hundred and ninety-four spaces for car parking. Residential accommodation will comprise residential flats as well as townhouses. It will be constructed on the southern end that is appropriate for taller buildings.
Under the Manly Local Environmental Plan 1988, the eastern side land is zoned for business purposes while the western side land is zoned for residential purposes. Residential accommodation is permissible in the business zone. The present car park exceeded the 2 meters limit by 1.9 meters. After the residential car parking was constructed above the parking, the structure would appear as a three-story building if viewed from the northern side. Furthermore, two development control plans managed the site. There were therefore controversies regarding such issues as the floor area, gross floor area, and building heights. The respondent stressed greatly that the proposal contained many areas that exceeded the height control provided by the Business Control Plan. It is also worth pointing out that the proposal measurements exceeded the limits by significant margins. The applicant never made attempts to justify the exceeding measurements and this interfered with the privacy, views, and lighting. In the light of these issues, the respondent thought it was better if the Court intervened (McClellan 2004b).
What the court found or held
This site is expected to be a redevelopment combining retail development, commercial development, and residential accommodation. The Senior Commissioner identified eleven vital issues. During the hearing, some issues were however acknowledged to hold greater significance and be crucial for the application’s determination. These issues were the proposed development’s height, SEPP 1 objection, and how people residing on the north would be affected. The Court identified that the site was managed by Manly Local Environmental Plan as drafted in 1988. The eastern side was meant for business while the western side was appropriate for residential houses. In addition, the Local Environmental Plan had no restrictions in regard to floor and height space controls. The business zone could also be used for residential houses.
The significance of the case for planning or development practice
The case is significant in that it highlights the importance of adhering to local environmental plans whenever building or renovating a building is planned. Some places are more appropriate for residential or business purposes and, if used for another type of constructions, there may be challenges with height, visual impact, privacy, roads and streets as well as security. Local environmental plans are concerned with assessing the potency of land use and identifying wetlands and places to be used for roads and streets (McClellan 2004a).
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McClellan, J, 2004a, BGP Properties Pty Limited V Lake Macquarie City Council, Land and Environment Court of New South Wales.
McClellan, J, 2004b, Stockland Development Pty Ltd v Manly Council. NSWLEC, Land and Environment Court of New South Wales.