Vigor Master Pty Limited v Warringah Council [2005] NSWLEC 35

Land and Environment Court of New South Wales

CITATION : Vigor Master Pty Limited v Warringah Council [2005] NSWLEC 35

APPLICANT: Vigor Master Pty Limited PARTIES : RESPONDENT: Warringah Council

FILE NUMBER(S) : 11009 of 2004

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Housing density - Road access - and Aboriginal heritage significance.

LEGISLATION CITED: Warringah Local Environmental Plan 2000, (WLEP2000) - Environmental Planning and Assessment Act 1979 ss 79C and 97

CASES CITED: Centro Properties Limited v Warringah Council & Anor [2003] NSWLEC 145 - Minister for Immigration and Ethnic Affairs v Eshetu (1999) 162 ALR 577

DATES OF HEARING: 27 and 28 January 2005 and 4 February 2005

DATE OF JUDGMENT: 02/11/2005

APPLICANT: Mr Henry Yu in person with Mr Jian Zhong Liu, and Ms Xue Qin Wang. SOLICITORS: N/A LEGAL REPRESENTATIVES: RESPONDENT: Mr N D Howie, solicitor SOLICITORS: Wilshire Webb

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

11 February 2005

11009 of 2004 - Vigor Master Pty Limited v Warringah Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Warringah Council (the council) of a development application to erect a new dwelling at Lot 1093, DP 752038, in Brooker Avenue, Beacon Hill, NSW 2100. It is proposed to erect the new dwelling on B2 (predominantly, one dwelling per 20ha-'non-urban') land, on the 'urban fringe' of Beacon Hill. 2 I visited the land in company with the parties on the morning of the hearing. On the site inspection Mr Humphrey a nearby resident gave evidence that related to vehicular access to the land. 3 I have concluded that the application should fail for reason that it would not maintain the likely desired future character of the B2 'non-urban' land and would be contrary to the objective of the planning instrument to maintain the natural features of the land. The land 4 The land is situated within the B2 Oxford Falls Valley Locality under Warringah Local Environmental Plan 2000 (WLEP 2000). 5 Nearby, to the north and west, are undeveloped allotments that formed with the subject land, as at 8 March 1974, an existing parcel of around 17ha. That parcel, abutting the subject land to the north, has a dwelling 'entitlement' that has been taken up, by that applicant when the council approved a dwelling on Lot 1091, DP 752038. There are dwellings to the south in Brooker Avenue, and to the east around the cul-de-sac head of Guardian Parade. These latter houses back onto the proposed vehicular access to the subject land. 6 The land is almost rectangular in shape, an area of 2.8128ha, with no public street frontage. It has a frontage of 105.05m to an unformed Crown road to the east, a northern boundary of 298.70m, a western side boundary of 119.1m and a southern boundary of 266.5m. The land slopes from north to south and west to east and over the building platform the cross-fall is about 2m. 7 Sandstone heath and Bloodwood/ Scribbly Gum Woodland predominates in the area. This vegetation community is said to be common and widespread in the Warringah Council area and well represented in Ku ring gai Chase and Garigal National Parks. 8 Some stands of trees provide habitat for threatened species of flora (Tetratheca glandulosa) or fauna (Red-crowned Toadlet, Giant Burrowing Frog, Heath Monitor, Regent Honeyeater and Southern Brown Bandicoot). 9 Other plants in the vegetation community include seven ROTAP species (Angophora crassifolia, Boronia serrulata, Eucalyptus luehmanniana, Gonocarpus salsoloides, Lomandra brevis, Platysace stephensonii and Rulingia hermannifolia) and five species not recorded in Kur-ring-gai Chase or Garigal National Parks (Hibbertia obtusifolia, Lindsaea dimorpha, Melaleuca nodosa, Tetraria capillaris and Tetrarrhena turfosa). 10 The land is undeveloped, vacant and provided with normal residential services. Relevant planning controls Warringah Local Environmental Plan 2000, (WLEP2000) 11 Under the provisions of the WLEP2000, which was gazetted 5 December 2000, the land is zoned for 'housing' as a Category 2 use and the proposal is permissible with consent. The land falls within the B2 - Oxford Falls Valley Locality. 12 The compendious WLEP2000 is in a form unlike traditional local environmental plans. It does not rely on zoning and zoning tables to define what development is allowable on land within the local government area. Locality Statements, as "…set out in an Appendix to this plan", are included to guide future development, [Note: Exhibit 7. Pages 134 – 576]. 13 Clause 3 of the WLEP2000 specifies that the purposes of the plan are: (a) … (b) to describe the desired characters of the localities that make up Warringah and relate the controls on development to the achievement of the desired characters of those places, and (c) to establish limits to the exercise of discretion with regard to the control of development, …