Platform Architects Pty Ltd v Northern Beaches Council [2020] NSWLEC 185

Land and Environment Court New South Wales

Medium Neutral Citation: Platform Architects Pty Ltd v Northern Beaches Council [2020] NSWLEC 185 Hearing dates: 10 and 11 December 2020 Date of orders: 20 January 2021 Decision date: 20 January 2021 Jurisdiction: Class 1 Before: Duggan J Decision: See paragraphs 72 and 73 Catchwords: ENVIRONMENT AND PLANNING – development application – boarding house – appeal against refusal of application – whether development is a dwelling – housing density standard – low intensity, low impact use development – development application is consistent with desired future character statement – variations to standards approved subject to conditions Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 55 – Remediation of Land Warringah Local Environmental Plan 2000 Warringah Local Environmental Plan 2011 Cases Cited: Vigor Master Pty Ltd v Warringah Shire Council [2008] NSWLEC 1128 Category: Principal judgment Parties: Platform Architects Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: Mr J Farrell (Applicant) Mr S Patterson, solicitor (Respondent)

Solicitors: Schmidt-Liermann Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2019/129615 Publication restriction: No

Judgment

Facts 1. Platform Architects Pty Ltd (the Applicant) lodged Development Application No DA2018/0401 with Northern Beaches Council (the Council) on 15 March 2018 seeking consent for a part two and part three storey boarding house located at 14 Wyatt Avenue, Belrose (the Site). 2. The boarding house is proposed to comprise: 25 boarding rooms; two communal kitchen and dining facilities; a communal outdoor area; a caretaker room; parking in the basement for 13 cars and 8 motorcycles; and basement bicycle storage. Each boarding room and the caretaker room is to provide: a bed, clothes storage; a seating area; and a separate bathroom. No kitchen or laundry facilities are provided in the rooms. 3. The Site is identified as Lot 2567 in DP 752038. It is rectangular in shape and has a total area of 2,298sqm. It has a 28.595m frontage to Wyatt Avenue, and a depth of 80.42m. The Site is undeveloped and has a driveway/track which extends for the length of the Site and connects to the rear portion of 16 Wyatt Avenue to the north. The Site falls approximately 7 to 10m from the south to the north via a gradual slope. 4. The Site currently contains 64 trees of different species and heights. A significant proportion of these trees (55 trees) are located parallel to the eastern boundary of the Site, with the others interspersed around the Site. The trees parallel to the eastern boundary are scattered amongst boulders and are located in an area identified as a 'watercourse' in the relevant survey. A hedge of approximately 3m length is located parallel to the Site frontage. 5. The Site adjoins 16 Wyatt Avenue which is an "L-Shaped" Lot that runs along the western and the northern boundaries of the Site. 16 Wyatt Avenue contains a multi-storey detached dwelling house with a swimming pool, landscaped areas, a tack shed, horse facilities and an informal helicopter landing area. 6. The Site adjoins 12 Wyatt Avenue to the east, which is identical in shape to the Site and is also currently undeveloped. Development consent DA2019/0238 for the construction of a childcare centre on this property was approved by the Council on 17 March 2020. This approved development has a side building setback a minimum of 5m from the boundary with the Site, and a minimum side building setback approximately 4m from the boundary with 10 Wyatt Avenue. 7. On the opposite side of Wyatt Avenue to the south of the Site are six detached dwelling houses, each located on allotments of a smaller area than the Site. These properties are zoned R2 and are subject to different planning controls than the Site. 8. After lodgement, the DA was advertised and notified to nearby and adjoining landowners and occupiers between 23 March 2018 and 18 April 2018. Following the notification period, 98 submissions were received objecting to the proposed development. 9. The DA was assessed by the Council and was referred to the Northern Beaches Local Planning Panel with a recommendation for approval. 10. On 26 October 2018, the Local Planning Panel refused the DA for the following reasons: 1. The flood risk assessment report submitted with the development application contains insufficient information to allow a proper and thorough assessment to determine if the development would be likely to have adverse flood risk impacts. 2. For that reason the Panel is not satisfied that for the C8 Belrose North Locality the development is consistent with the Warringah Local Environmental Plan 2000 (WLEP 2000) desired future character requirement of protection and, if possible, enhancement of the natural environment. 3. The Panel is not satisfied that the development is consistent with the WLEP 2000 desired future character requirement of conformity with the maximum housing development standard of 1 dwelling per 20 hectares. Although the Panel has a discretion to consent notwithstanding this contravention, it does not consent given the extent of the contravention, the smallness of the site relative to 20 hectares, the large size of the development relative to the site size, and the matters referred to in the other reasons for refusal. If the Panel were prepared to consent (which it is not), then the prescribed concurrence of the Director would be required because the contravention is far more than 10%. 4. The Panel is not satisfied that the site is suitable given the matters referred to above and the Panel's assessment that it is an overdevelopment of the site because the building footprint and the total built upon area are too large for the site. 5. It is not in the public interest to consent given the matters referred to above. 1. On 26 April 2019, the Applicant filed the Class 1 Appeal against the refusal of the development application. 2. On 25 September 2020, the Applicant was granted leave to amend the development application.