Event and Time
Event Description
A development application (DA2021/1991) for a dual occupancy development at 12 Birkley Road, Manly, was appealed after initial council refusal. The application involved demolition works and construction including strata subdivision and raised disputes regarding overshadowing of solar panels, visual privacy, visual bulk, heritage impact, and streetscape.
Application and Claims
- Applicant Claims: The applicant argued that the proposed development complied with residential planning controls and would maintain reasonable solar access for neighboring properties throughout the year.
- Council Claims: The council contended that the development's shadow would significantly impact solar panels on the southern neighboring property, claiming it went against provision 3.4.1 of the Manly Development Control Plan (MDCP), emphasizing that a complete loss of usability for a portion of the sunlight hours was unacceptable.
Judicial Decisions
The Court upheld the appeal and granted development consent. The Court concluded that the proposed plan did not substantially violate relevant planning controls as alleged by the Council and acknowledged the adequacy and reasonableness of solar access overall.
Dispute Points and Legal Basis
Dispute Points
- Applicant: Asserted that:
- The development complied with relevant MDCP standards. - The interpretation of clause 3.4.1.3 of MDCP should allow for flexibility and reasonable solutions ("equitable access to light and sunshine"). - Adequate conditions would be incorporated to mitigate impacts on visual privacy and neighboring properties.
- Council: Argued that:
- The proposed development would completely eliminate solar access for a significant period on the winter solstice, contradicting MDCP provisions. - Concerns regarding potential negative impacts on heritage conservation and neighborhood character, particularly concerning visual bulk and overshadowing.