Koumana Holdings Pty Ltd v Warringah Council [2005] NSWLEC 407

Land and Environment Court of New South Wales

CITATION : Koumana Holdings Pty Ltd v Warringah Council [2005] NSWLEC 407

APPLICANT Koumana Holdings Pty Ltd PARTIES : RESPONDENT Warringah Council

FILE NUMBER(S) : 11294 of 2003

CORAM: Hoffman C

KEY ISSUES: Development Application :- Demolition of existing shops - erection of three storey mixed use building with carpark access off Pittwater Road - potential for rear vehicle access - desired future character of locality

Warringah Local Environmental Plan 2000 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979

CASES CITED: Billgate v Woollahra Municipal Council [2004] NSWLEC 436

DATES OF HEARING: 13/07/2005 EX TEMPORE JUDGMENT DATE : 07/14/2005

APPLICANT Mr G Newport, barrister SOLICITORS Landerer & Company LEGAL REPRESENTATIVES: RESPONDENT Mr D Thomas, solicitor SOLICITORS Wilshire Webb

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

14 July 2005

11294 of 2003 Koumana Holdings Pty Ltd v Warringah Council

JUDGMENT

1 This is a class 1 appeal No. 11294 of 2003 between Koumana Holdings Pty Limited and Warringah Council in regard to refusal of the proposal to demolish three existing shops at 1091-1095 Pittwater Road, Collaroy, and erect a three storey development of ground floor commercial and retail space and carparking, with a total of four apartments on the two floors above, and a semi-basement carpark. 2 The site is in the shopping strip on the arterial road off Pittwater Road that runs three city blocks from Eastbank Avenue to Fielding Street. It is opposite the beachfront parkland of Collaroy. The shopping centre is Locality D2 zone under the Warringah Local Environmental Plan 2000. 3 Adjoining on the north of the site is a heritage item, namely the Art Deco style cinema on the corner of Pittwater Road and Alexander Street. There is a set of stop lights controlling the intersection. 4 Adjoining the site on the south side is a set of old shops similar to those existing on the subject site. Of importance in this appeal is that the shops to the south all the way to Eastbank Avenue have a development consent for demolition and the erection of a large development of ground floor commercial and retail shops, and 37 apartments on two floors above, and carparking in two basement floors below. The development is referred to by the name Cornerstone. 5 Behind the subject site at No. 4 Alexander Street is a house in the Locality D5 zone. Its land extends behind the cinema, the subject lot, and part of Cornerstone. 6 The issues have been considerably reduced by amended plans and expert reports prior to this hearing. The development application has been on foot since 2003. The amended issues before me in Exhibit 1 are: DESIRED FUTURE CHARACTER Issue 1 The proposed development has inadequate regard to, and inconsistent with, the desired future character described in the D2 Collaroy Village Locality Statement cll 12(3) and 20(1) of the Warringah Local Environmental Plan 2000 , in that: (a) The driveway (which is required to be widened from 3.5 m to 6.5 m for traffic standards) and limited shop front does not maintain the continuity of existing building facades reflecting the traditional pattern of shopfront development. (b) The driveway and limited ground floor retail/commercial area does not retain and/or reinforce the retail character of the village. (c) The driveway and limited shopfront do not contribute to creating a pedestrian environment which is safe, comfortable, and interesting or allows for commercial use of the footpath for outdoor eating and the like. Part (d) of issue 1 was deleted. Issues 2, 3 and 4 and 5 , dealing with traffic access and parking, were deleted. Issue 6 . The proposed development fails, or is inconsistent with the general principle of development control in cl 70 of the Warringah Local Environmental Plan 2000 . Issue 7 . The proposed waste storage facility is inconsistent with the general principle of development control in cl 70 of the Warringah Local Environmental Plan 2000 in that: (a) It is too far from the property boundary with the street, (maximum allowable distance being 6.5 m). (b) Access is barred by a security door. (c) Part of the servicing access is upon the vehicular driveway. Issue 8 . The unsatisfactory driveway indicates alternative vehicular access to the site should be provided from Alexander Street or Eastbank Avenue. Issue 9 regarding heritage was deleted. Issue 10 regarding State Environmental Planning Policy No. 65, Design Quality of Residential Flat Development was deleted. Issue 11 regarding Inadequate Information , in connection with the application was deleted, except for item 11(e) being a NatHERS Certificate has not been submitted for the proposed development. Issue 12 regarding Integrated Development was deleted. A letter from the Department of Infrastructure, Planning and Natural Resources under s 91 of the Environmental Planning and Assessment Act having been tendered in the hearing indicating approval. Issue 13 regarding Strata Subdivision was deleted as it did not form part of the application. Issue 13A , Geotechnical Constraints . The proposed development involving the construction of a basement carpark, and de-watering of the site is likely to cause the following environmental harm: (a) Lowering of the water table in the general locality with particular impact within 100 m of the appeal land, having the resultant effect of altering the moisture content in the adjoining land which is likely to lead to structural and cosmetic damage to the Collaroy cinema building located immediately north of the appeal land. (b) The proposed excavation and construction methodology is likely to cause significant structural and cosmetic damage to the adjoining Collaroy cinema building located immediately north of the appeal land, having regard to the proximity of the proposed excavation and the geotechnical characteristics of the land. Issue 14 , public submissions. Whether the proposed development should be refused having regard to the weight and substance of the submissions received by the respondent including: (a) Adaptability of the building for commercial premises. (b) Inadequate details of the relationship to the cinema and approved building to the south. (c) No assessment under State Environmental Planning Policy No. 65 . (d) Loss of privacy and amenities to the neighbouring residential property to the west at No. 4, Alexander Street. (e) Inadequate free board to mitigate flooding problems. (f) Inadequate information regarding acid sulphate soils and geotechnical considerations. (g) Setback to the rear should be increased in line with the approved development to the south, that being the Cornerstone development. (h) Noise impact on the adjoining properties, including vehicular noise associated with the open sections of the carpark. (i) Overshadowing. (j) Vehicular access from Pittwater Road inappropriate considering busy pedestrian area and road. (k) Unsatisfactory level of commercial floor space in the proposal. (l) Poor design quality of the architecture. 7 Attending for the respondent are: * Mr D Thomas, solicitor of Wilshire Webb, and * Mr C Hallam, consultant traffic engineer. 8 Appearing for the applicant are: * Mr G Newport, barrister, and * Mr J Hewitt, consultant traffic engineer.