Ray Fitz-Gibbon Architects Pty Ltd v Warringah Council [2004] NSWLEC 482

Land and Environment Court of New South Wales

CITATION : Ray Fitz-Gibbon Architects Pty Ltd v Warringah Council [2004] NSWLEC 482 APPLICANT Ray Fitz Gibbon Architects Pty Ltd PARTIES : RESPONDENT Warringah Council FILE NUMBER(S) : 10625 of 2004 CORAM: Tuor C. Development Consent :- Section 96 Application KEY ISSUES: Impact on residential amenity views LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Warringah Local Environmental Plan 2000 Lido Real Estate Pty Ltd & Anor v Woollahra Council [1997] NSWLEC 118; CASES CITED: North Sydney Council v Michael Standley & Assoc Pty Ltd (1998) 97 LGERA 433; Tenacity Consulting Pty Ltd v Warringah [2004] NSWLEC 140 DATES OF HEARING: 19/08/2004 DATE OF JUDGMENT: 09/29/2004

APPLICANT Mr A Galasso, Barrister SOLICITORS Staunten Beattie LEGAL REPRESENTATIVES: RESPONDENT Mr N Howie SOLICITORS Wilshire Webb

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

29 September 2004

10625 of 2004 Fitz-Gibbon Architects Pty Ltd v Warringah Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Warringah Council (council) of an application under s96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify a development consent (2002/1587DA) to demolish the existing buildings and to construct a residential flat building at 25-29 Delmar Parade, Dee Why (the site). The site and its context 2 The site is located on the northern side of Delmar Parade, below street level. It has an area of approximately 1,800 sq m and slopes to the north and north west. Construction of the approved development has commenced. To the east and west of the site residential flat buildings are also under construction. 3 The existing character of the northern side of Delmar Parade is of an area undergoing transition with older houses being replaced by residential flat buildings. 4 The southern side of Delmar Parade is developed with single and two-storey houses, which are elevated above street level. 5 From the street and the properties on either side of the street there are views towards the north to Collaroy ridgeline and to the north east towards Long Reef. The proposal and its history 6 On 13 May 2003, council approved a development application for 18 residential units and basement car parking. The consent included the following conditions: Condition 48 The height of the building at Unit 15 level be restricted to 8.5m above natural ground level – [this will require deletion of unit 15]. Condition 78 Prior to an application for the removal of Syzygium Paniculatum tree on the Delmar Parade Road Reserve the applicant will arrange for the completion of an 8-part test under the Protected Species legislation and Environmental Planning and Assessment Act. Details of the eight-part test are to be submitted to Council. Condition 79 Instead of the proposed removal of the Syzygium Paniculatum the applicant should redesign the proposed access stairs and therefore maintain the species in the present location. Such a redesign will also require completion of an 8-part test to assess the impact of any proposed works in the vicinity. 7 On 2 October 2003, the applicant lodged an application to modify the development consent as follows: (i) Modify the description of the proposed development contained within consent 2002/1587DA to refer to 17 units consistent with the revised detail accompanying this submission. (ii) The modification of the consent 2002/1587DA dated the 13 May 2003 by amending condition 1 to refer to and incorporate the amended plan details accompanying this submission. (iii) Delete condition 48 consistent with the revised layout. (iv) delete both condition 78 and 79 (or at least 79) consistent with the recommendations of the Footprint Green Pty Ltd Threatened Species Assessment report accompanying this submission. 8 The amended plans included the reduction in unit numbers from 18 to 17, the redesign of unit 15, additional balconies to the northern side of the building, internal alterations and the reconfiguration of the basement car park. 9 Council notified the application and four objections were received. Council staff recommended approval of the application. The Independent Hearing and Assessment Panel recommended refusal of the application. Council refused the application on 9 March 2004.