Burley Katon Halliday Pty Limited v Pittwater Council [2006] NSWLEC 639

Land and Environment Court of New South Wales

CITATION : Burley Katon Halliday Pty Limited v Pittwater Council [2006] NSWLEC 639 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT: PARTIES : Burley Katon Halliday Pty Limited RESPONDENT: Pittwater Council

FILE NUMBER(S) : 10326 of 2006

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Bulk and scale of development

LEGISLATION CITED: Pittwater Local Environmental Plan 1993, (PLEP) Environmental Planning and Assessment Act 1979, ss 79C and 97

DATES OF HEARING: 25/08/2006

DATE OF JUDGMENT: 08/28/2006

APPLICANT: Mr I Hemmings, barrister, instructed by Mr A J Whealy, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Gadens Lawyers RESPONDENT: Mr A Pickles, barrister, instructed by Ms R Mirosevich, solicitor SOLICITORS: Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

28 August 2006

10326 of 2006 - Burley Katon Halliday Pty Limited v Pittwater Council

Findings as to fact

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of Pittwater Council (the council) to refuse a development application to erect a new split-level, three-storey dwelling with swimming pool and garage accessed from Whale Beach Road and associated landscaping works at Lot 4, DP 11909, being No 183 Whale Beach Road, Whale Beach. 2 I visited the land in company with the parties on the morning of the hearing. 3 I have concluded that the application requires further amendment before approval is granted. The land 4 The land is situated on the eastern side of Whale Beach Road. It has a splayed a splayed frontage of about 18m to Whale Beach Road and a 13.715m rear boundary to a reserve and the Pacific Ocean, the northern boundary is about 76.91m and the southern boundary is about 85.89m, giving an area of 1079.6m2. 5 The land is vacant except for some concrete retaining walls. There is a single mature tree located in the northwestern corner of the land. The land falls steeply down from Whale Beach Road with a change in level of about 22m, or a slope of about 30% over the length of the block and over the building platform. This last fact is significant since the council's planning controls are to be flexibly applied where the land over the building platform is of this slope or greater. 6 That portion of the land near the cliff top is natural bushland and its extent is shown by the red line angled at around 45o to the side boundaries, largely parallel to the front alignment as shown in Exhibit L and on the centreline of the land about 41m from the eastern boundary. Relevant planning controls Pittwater Local Environmental Plan 1993, (PLEP) 7 Under the provisions of the PLEP the land is zoned Residential 2(a) and is located in designated Area 1 where dual occupancy dwellings are prohibited, and the proposal is permissible with consent. It is also within exempt and complying Region 1(a). 8 Other planning controls include: · Draft Local Environmental Plan Pittwater 21, (DLEP21) and · Development Control Plan Pittwater 21, (DCP21); · Interim Geotechnical Risk Management Policy for Pittwater, (Risk Policy); · The Pittwater Estuary and Wave Action and Tidal Inundation Policy and Guidelines, (Tidal Guidelines); · Environmental Planning and Assessment Act, 1979, as amended; · State Environmental Planning Policy No 71 - Coastal Protection, (SEPP71). 9 Under the DCP21 the following clauses apply: · B6.l Access Driveways. · B8.5 Construction and demolition works in the public domain. · C1.4 Solar access. · C1.5 Visual privacy. · D12.2 Scenic protection. · D12.4 Height. · D12.6 Side and rear building line. · D12.8 Building envelope. The proposal and its history 10 Development application No N0697/05 was lodged with the respondent council on 2 November 2005 to erect a new dwelling house and swimming pool on the land. The proposal is described in plans prepared by Burley Katon Halliday Pty Limited, [Note: Exhibit A]. 11 The proposal is for a single dwelling over three levels, with a driveway linking with a garage at street level and a swimming pool on the eastern ocean side of the land. The land would be extensively re-landscaped and the native bushland on the ocean side is to be preserved. Notification 12 The original development application was advertised 14 days from 9 November 2005 to 23 November 2005 and notified to nearby owners and occupants and the council received four (4) submissions. 13 In respect of the Section 82A review that was advertised for 14 days from 26 April 2006 to 10 May 2006, the council received and two (2) submissions. The council's decision 14 By notice dated 2 March 2006, the council refused the original development application for the following reasons: 1 The proposed application is considered to be inconsistent with the provisions of Section B6.1 and B8.5 of Development Control Plan P21, in particular that the proposed turning area structure is not permitted by Council within Whale Beach Road Reserve. 2 The proposed application is considered to be inconsistent with the controls and outcomes of Section C1.5 visual privacy of Development Control Plan P21. 3 The proposed application is considered to be inconsistent with the controls and outcomes of Section D12.1 character as viewed from a public place of Development Control Plan P21. 4 The proposed application is considered to be inconsistent with the controls and outcomes of Section D12.2 scenic protection of Development Control Plan P21. 5 The proposed application is considered to be inconsistent with outcomes of Section D12.4 height of Development Control Plan P21 and therefore the variations clause should not be applied on merit. 6 The proposed application is considered to be inconsistent with the controls outcomes of Section D12.5 front building line of Development Control Plan P21. 7 The proposed application is considered to be inconsistent with the controls and outcomes of Section D12.6 side and rear building line of Development Control Plan P21. 8 The proposed application is considered to be inconsistent with the controls and outcomes of Section D12.8 building envelope of Development Control Plan P21. 15 The s 82A Review was considered at the Development Unit Meeting on 25 May 2006 and reported to the Environmental & Planning Committee on 5 June 2006. The council refused the application under s 82A on 6 June 2006. The hearing 16 The appeal was filed on 21 April 2006. 17 On site the Court heard evidence on behalf of the respondent council from: · Mr L Mawalagedera, owner of No 181 Whale Beach Road; and · Ms A Fesq, owner of No 179 Whale Beach Road. 18 The Court-appointed town-planning expert was Ms A McCabe. 19 Ms K Munn, Development Officer, Pittwater Council, prepared the statement of basic facts. The issues 20 On 8 August 2006 the council filed a statement of issues: Built Form 1 The height, bulk and scale of the proposed development is excessive. Particulars (a) Pittwater 21 DCP Clauses A4.10, D 12.4. The controls require a maximum height of 8.5 metres with a variation of up to 10 metres. The application proposes a maximum height of 9.8 metres from natural ground level of the southern elevation. (b) Pittwater 21 DCP Clauses D12.5 and D12.6. The proposal is not consistent with the outcomes of the front building line and side and rear building line controls as a result of non-compliance with the height and building envelope and the resulting overshadowing. (c) Pittwater 21 DCP Clauses A4.10 and D12.8. The southern elevation substantially breaches the building envelope. A major portion of the garage is in breach, a part of the rear portion of Level 2 is in breach, and part of the rear portion of Level 1 and the northeastern corner of the garage along the northern elevation is in breach. (d) The excessive built form extends approximately 18.8 metres beyond the rear alignment of No. 181 Whale Beach Road, does not respect the consistent built form along the waterway and is generally excessive in bulk and scale in comparison to the existing built form of No. 181 Whale Beach Road. (e) State Environmental Planning Policy No 71 - Coastal Protection Clauses 2(k), 8(d) and 8(f). The proposal compromises the natural scenic quality of the surrounding area.