Warrawee Securities Pty Limited v Pittwater Council [2006] NSWLEC 206

Land and Environment Court of New South Wales

CITATION : Warrawee Securities Pty Limited v Pittwater Council [2006] NSWLEC 206

APPLICANT: PARTIES : Warrawee Securities Pty Limited RESPONDENT: Pittwater Council

FILE NUMBER(S) : 10836 of 2005

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Height - Neighbourhood amenity and streetscape - Excessive site coverage - Tree loss, and - Landscaping

Pittwater Local Environmental Plan 1993, (PLEP) State Environmental Planning Policy-Seniors Living, (SEPP-SL) LEGISLATION CITED: Pittwater 21 Development Control Plan, (P21) Draft Pittwater 21 Local Environmental Plan - Geotechnical Risk Management Policy for Pittwater, (Draft P21) Environmental Planning and Assessment Act 1979, ss79C and 97

DATES OF HEARING: 03/04/2006 and 04/04/2006

DATE OF JUDGMENT: 04/27/2006

APPLICANT: Mr C McEwen, SC, instructed by Mr M A Staunton, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Staunton Beattie RESPONDENT: Ms G Furness, barrister, instructed by Mr M Jaku, solicitor SOLICITORS: Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

27 April 2006

10836 of 2005 – Warrawee Securities Pty Limited v Pittwater Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Pittwater Council (the council) of a development application to demolish the existing single-storey dwelling on the land; to erect six (6) two-storey, self-contained dwellings over a basement carpark, under the provisions of State Environmental Planning Policy-Seniors Living, (SEPP-SL) at Lot A, DP 377157, being No 1 Riverview Road, Clareville. 2 I visited the land in company with the parties on the morning of the hearing and heard from local residents. 3 I have concluded that the application should fail as a result of the excessive site coverage and the consequent lack of a landscaped setting in the context of the low-density residential area in Hudson Parade west of Ruskin Row. The land 4 The land is situated on the northwestern corner of the intersection of Riverview Road and Hudson Parade, opposite the intersection of Hudson Parade and Hilltop Road. The land has an area of 1,943.6m2 and is occupied by a single-storey detached dwelling located towards the Riverview Road frontage of the land. Diagonally across the intersection is a local shopping strip. 5 The land is irregular in shape with a frontage to Riverview Road of 26.815m; to Hudson Parade (southern) of 49.715m; a northern boundary, common with No 3 Riverview Road, of 67.3m and a rear western boundary, common with No 22 Hudson Parade, of 48.55m. 6 The character of the locality is described as primarily low-density, single-storey and two-storey dwellings in a natural landscape setting under Part A4.1 of the Pittwater 21 Development Control Plan, (DCP21). Relevant planning controls Pittwater Local Environmental Plan 1993, (PLEP) 7 Under the provisions of the PLEP the land is zoned Residential 2(a) (Residential 'A') and the proposal is permissible with consent under the provisions of State Environmental Planning Policy-Seniors Living, (SEPP-SL). State Environmental Planning Policy-Seniors Living, (SEPP-SL) 8 SEPP – SL that replaced the earlier SEPP5, was gazetted 16 December 2005. Under s 2(1) it aims to encourage the provision of housing (including residential care facilities) that will: (a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and (b) make efficient use of existing infrastructure and services, and (c) be of good design. 9 Under s 2(2) of SEPP – SL these aims will be achieved by: (a) setting aside local planning controls that would prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this policy, and (b) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form, and (c) ensuring that applicants provide support services for seniors all people with a disability for developments on land adjoining land zoned primarily to open purposes. 10 Under s 31 of SEPP – SL the proposed development should: (a) recognise the desirable elements of the location's current character (or, in a case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area. (b) … (c) maintain reasonable neighbourhood amenity and appropriate residential character by: (i) providing building setbacks to reduce bulk and overshadowing, and (ii) using building form and siting that relates to the site's land form, and (iii) adopting building heights on the street frontage that are compatible and scale with adjacent development, and (iv) considering, where buildings are located on the boundary, the impact of boundary walls on neighbours, and (d) be designed so that the front building of the development is setback in sympathy with, but not necessarily the same as, the existing building line, and (e) embody planting that is in sympathy with, but not necessarily the same as, other planting the streetscape, and (f) retain wherever reasonable, major existing trees, and (g) … Pittwater 21 Development Control Plan, (DCP21) 11 DCP21 applies to the subject land. Draft Pittwater 21 Local Environmental Plan - Geotechnical Risk Management Policy for Pittwater, (Draft P21) 12 Draft P21 is under consideration by the council. The proposal and its history 13 Development application No 262/2005 was lodged with the respondent council on 19 May 2005 to erect six dwellings under SEPP-SL. 14 It is proposed to demolish the existing single-storey dwelling on the land, the associated structures (being carport, storage shed, outside toilet and shower shed); to erect six (6) mainly two-storey self-contained dwellings over a basement carpark containing sixteen (16) car parking spaces, four (4) of which are visitors' spaces under the provisions of SEPP-SL. Dwelling No 1 is in part three-storeys in height. 15 Each dwelling would comprise at least three (3) bedrooms and be provided with two (2) dedicated parking spaces accessed by a private internal lift access. Additionally, Dwellings No 4-6 would be provided with a library/ study room. Dwelling No 1 would be provided with a library and guest room at the basement level. Dwellings No 1-3 would have a study on the lower level, adjacent to the secondary bedrooms and Dwellings No 4 and 6 have a study/ work area on the living level. Dwellings No 1-3 and 6 would have plunge pools within their courtyards. The development would be serviced by a centrally located lift, giving access to and from the basement carpark. Notification 16 The application was notified, to nearby owners and occupants and the council received fifty-one (51) submissions. An advertisement was also placed in the 'Manly Daily' on 9 June 2005. 17 The application was referred to the Council's Engineer, the Departments of Natural Resources and Health on the 9 June 2005. The Council's Arborist, Access Consultant and Traffic Committee were also notified. The council's decision 18 When the appeal was filed the council had not yet determined the application. On 5 December 2005 The hearing 19 The appeal was filed on 2 August 2005 and is a deemed refusal. 20 At the hearing the court heard evidence on behalf of the respondent council from: · Ms L Haidhari, town planner, Pittwater Council; · Mr Ron and Barbara Van Es, residents of No 7 Riverview Road, Clareville, [Note: Exhibit 5, pp 25 to 28]. · Mr Les Beckenham, resident of No 19 Riverview Road, Clareville, [Note: Exhibit 5, pp 37-8]. · Ms Prue and Peter Hock, residents of No 31 Riverview Road, Clareville, [Note: Exhibit 5, pp 41-45]. · Mr Graham Bland, resident of No 33 Riverview Road, Clareville, [Note: Exhibit 5, p 46]. · Mr Alan Lawrence, resident of No 4 Hilltop Road, Clareville, [Note: Exhibit 5, pp 69-70]. · Mr David Lyle, resident of No 124 Riverview Road, Clareville, [Note: Exhibit 5, pp 78-9]. · Ms A Hymes, resident of No 18 Eloura Road, Clareville Beach, [Note: Exhibit 5, p 85]. · Ms Marita McCrae, for the Avalon Preservation Trust, [Note: Exhibit 5, p 96]. · Ms Kim Bolitho, seeking protection for Koalas, [Note: Exhibit 11] · Mr Ian Rae, resident of No 52 Hilltop Road, Clareville. 21 Mr R J Chambers, consultant town planner was the Court-appointed expert. Mr P Castor, arborist, was the Court-appointed tree specialist. 22 On behalf of the applicant Mr Dickson, architect of the proposal, gave evidence. The issues 23 On 2 March 2006, the council filed an amended statement of issues. Inadequate Information 1 Inadequate information has been submitted to enable assessment of the development application, including, elevation diagrams to demonstrate solar access to each of the dwellings proposed. Height 2 The proposed buildings are too high given the height of buildings in the locality and the height controls, which apply. Particulars (a) Clause 38(4)(b) of State Environmental Planning Policy (Seniors Living) 2004 ("SEPP SL"). (b) Clause 38(4)(c) of SEPP SL. Solar Access 3 Inadequate solar access has been provided for dwellings 1, 2 and 6. Particulars (a) Clause 33 SEPP SL. (b) Clause C1.4 Pittwater 21 Development Control Plan ("DCP").