Land and Environment Court of New South Wales CITATION : Alan Kempster Architects Pty Ltd v Warringah Council [2006] NSWLEC 236 APPLICANT Alan Kempster Architects Pty Limited PARTIES : RESPONDENT Warringah Council FILE NUMBER(S) : 11345 of 2005 CORAM: Murrell C KEY ISSUES: Appeal :- Consent Orders LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 03/03/06 EX TEMPORE JUDGMENT DATE : 03/03/2006 APPLICANT Mr A. Kempster, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Mr K. Webber, solicitor of Wilshire Webb JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 3 March 2006 11345 of 2005 Alan Kempster Architects Pty Limited v Warringah Council JUDGMENT 1 This matter has come before the Court this morning as consent orders. By way of background, I originally inspected the subject site in the process of a neutral evaluation and the neutral evaluation resulted in some amendments that the applicant was prepared to incorporate into the plans and today it is proposed as consent orders. 2 The neutral evaluation, it has been agreed between the parties that the evidence and the substance of those matters that were discussed at the neutral evaluation can be part of consideration in these proceedings in terms of 61(I)(6)(a) of the Land and Environment Court Act. As such the Court does have the benefit of the site inspection and in that regard it is in a position to determine the consent orders. 3 The Court heard from Mr Olivier in respect of his concerns. He has an apartment in the adjoining building to the south of the subject site and he is concerned about the lack of light and the impact on the amenity of his residential unit with the construction of the proposed building before the Court this morning. 4 When the Court met on site with the parties, the council's controls in terms of its development control plan and its vision for the area were identified in that plan and it is clear that the council's controls call for block edge style development and the proposal is to provide such a development, such that there is a clear definition in terms of the streetscape and this part of The Strand, Dee Why. 5 The Strand is a street, which opposite the subject site, has a park before the water and this portion of the area is one that is proposed or has the vision of being mixed style development. The subject proposal before the Court is for the demolition of the existing commercial building and construction of a mixed commercial residential development, including a restaurant at ground floor, two residential units that take up the whole floor from east to west, above the restaurant and four carparking spaces at the property known as 16 The Strand, Dee Why. 6 The Court heard from Mr Olivier and there was a great deal of discussion as to how his amenity could in fact be ameliorated by the impact of a development that complies with council's development control plan and its proposals and vision for the area. 7 The Court on the view, it could be seen that the amenity of the units to the south will be impacted by the proposed development. The role of the Court is to look at what the planning regime provides for and to ameliorate impacts or where possible, to ameliorate impacts. 8 The applicant, at the end of the day, prepared amended plans and provided for a 1.8 sq m cut in the building at the same floor level as Mr Olivier's unit, although it is recognised there is approximately half a metre difference, that is the proposed new building will be half a metre higher than the residential building to the south and the purpose of the cut out is to provide for light and the feeling of space to Mr Olivier's unit. 9 The proposal, as before the Court now, provides for a cut out and also there is a condition with respect to what can be placed within the vicinity of that area adjoining Mr Olivier's unit. 10 I am satisfied that the applicant has accommodated Mr Olivier's concerns to a reasonable extent of the development application as now worthy of approval. The cut out will provide the continued light and it will also provide for a less claustrophobic or closed in feeling to what the original proposal called for in terms of a built edge development. In that regard I am satisfied that the development application is worthy of approval and also meets with council's vision for the future character of the area. 11 Mr Olivier had the opportunity this morning of also giving evidence and the discussion ensued as to whether it would be appropriate to also provide a cut out at the upper level, is the upper terrace. On balance I consider that the cut out at the level adjoining Mr Oliver's unit is appropriate but not at the upper level in terms of urban design. Therefore the plans as now presented in issue C before the Court in exhibit A this morning are consented to. 12 As I stated, the purpose of the cut out is to provide for more a feeling of being less "closed in" which I considered most important in terms of maintaining a reasonable amenity for Mr Olivier's unit rather than to maintain the view currently enjoyed to the north. 13 The Court also, on the view was referred to the other objections to the proposal, that of Mr and Mrs Drain and Mr Ramos. These objections relate to the right of carriageway at the rear of the subject property where it was proposed that there be a balcony off the bedrooms, for the two units. On the view, given the sight distances to the adjoining residential flat building across the driveways, the Court considered and it has been agreed to between the parties, that a juliette balcony be provided to those bedrooms, as opposed to a wider balcony. This achieves the purpose of the balconies having less usage because of the separation distances between the existing residential flat building across the driveway to the west and the subject building. The reduction in the width will ensure this and it will still provide the units with the amenity or the benefit of a juliette balcony to provide for doors opening to those bedrooms, to increase the internal amenity. 14 On the view the Court also could see that there were other encroachments provided to the laneway and in the circumstances a one metre encroachment is not unreasonable. 15 The Court, this morning has been provided with consent orders and the conditions have also been agreed to between the parties. The Court, given the knowledge of the site inspection and understanding the relationship of the proposed development to Mr Olivier's unit, considers that there is no reason why with the amended plans, that the proposed development should not be approved and there is no reason why the consent orders should not be granted by the Court. 16 Therefore, on the basis of my assessment and with the benefit of the officer of council and Mr Kempstar, the architect for the proposed development, the Court will issue the final orders and the orders by consent are: 1) The appeal in respect of the property known as 16 The Strand, Dee Why is upheld. 2) The development application submitted to Warringah Council and as amended for the demolition of the existing building and the construction of a new mixed retail residential development is approved subject to the conditions contained in annexure A. 3) The exhibits retained for the Court file are A, 1 and 2. The other exhibits can be returned. 4) It is noted there is no order as to costs. ___________________ J S Murrell Commissioner of the Court ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.