Ray Fitz-Gibbon Architects v Pittwater Council [2006] NSWLEC 501

Land and Environment Court of New South Wales

CITATION : Ray Fitz-Gibbon Architects v Pittwater Council [2006] NSWLEC 501

APPLICANT: PARTIES : Ray Fitz-Gibbon Architects RESPONDENT: Pittwater Council

FILE NUMBER(S) : 10306 of 2006

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Solar access and overshadowing Neighbourhood amenity and streetscape

State Environmental Planning Policy (Seniors Living) 2004, (SEPP-SL) Seniors' Living Policy – Urban design guidelines for infill development, (SL Policy) LEGISLATION CITED: Pittwater Local Environmental Plan 1993, (PLEP) Pittwater 21 Development Control Plan, (DCP21) Environmental Planning and Assessment Act 1979, ss79C and 97

DATES OF HEARING: 08/08/2006 and 09/08/2006

DATE OF JUDGMENT: 08/16/2006

APPLICANT: Mr C McEwen, SC, instructed by Mr M A Staunton, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Staunton Beattie RESPONDENT: Ms S E Pritchard, barrister, instructed by Mr M Jacu, solicitor SOLICITORS: Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

16 August 2006

10306 of 2006 - Ray Fitz-Gibbon Architects v Pittwater Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Pittwater Council (the council) to refuse a development application for seniors' living units at Lot 122, DP 1078242, being No 2137B Pittwater Road, Church Point. 2 I visited the land in company with the parties on the morning of the first day of the hearing. Local interested residents gave oral evidence that was recorded by the parties and was later tendered. 3 I have concluded that the overshadowing of the property to the south is not sufficiently adverse to warrant refusal of the application. Other matters have been adequately addressed in amended plans and conditions and the development application may be granted consent. The land 4 The land is situated on the western side of Pittwater Road, and has a street frontage of 20.49m to Pittwater Road, a depth of 57.605m on the north, 62.070m on the south and an area of some 1,200m2. 5 The land slopes down about 4.6m from the northwestern rear corner to the southeastern front corner of the land or at a grade of around 7.5%. The foundation material is largely sand deposits and there is a likelihood that acid sulphate soils are to be found around 2m below the natural ground level near sea level. As the land was probably a filled bay of Pittwater and is low-lying, overland stormwater flows need to be catered for. 6 There are many trees on the land, comprising predominantly local indigenous species of Casuarina glauca. 7 The locality is a low-density residential area, with built-form comprising single-storey and two-storey dwellings in large gardens with associated on-site car parking and low scale front fences. Many nearby dwellings are setback from the street frontage around 19m. These generous street frontages are landscaped with remnant native trees. 8 Under construction, near the land, on the western side of Pittwater Road, is other aged and disabled housing. 9 Close and distant water views are obtained from properties on the western side of Pittwater Road near the land. Nearby is a foreshore public open space with foreshore pedestrian walk, and a few private boatsheds, interspersed by the occasional commercial marina. The streetscape is dominated by vegetation. Mona Vale commercial and retail centre is located around three kilometres to the east of the land and comprises mixed commercial and retail uses intermixed with residential. Relevant planning controls Pittwater Local Environmental Plan 1993, (PLEP) 10 Under the provisions of the PLEP the land is zoned Residential 2(a) and the proposal is as a 'residential flat building' is prohibited, however, as a 'seniors living' proposal it is permissible with consent under State Environmental Planning Policy – Seniors Living, (SEPP-SL). 11 Under the provisions of the PLEP the land is designated 'Area 1' and 'dual occupancy' is not permissible. That land is also within a Foreshore Scenic Protection Area, (FSPA); it is also subject to geotechnical hazard, wave action and tidal hazard, on-site detention controls (OSD), habitat categories 1 and 2, and native wildlife protection. Pittwater 21 Development Control Plan, (DCP21) 12 Development of the land is controlled under DCP21, however, this instrument may be taken only as a guide to future development when considering the likely future character of the area. 13 Other planning instruments that apply to the land include: · Environmental Planning and Assessment Act 1979, as amended, ss79C and 97; · State Environmental Planning Policy (Seniors Living) 2004, (SEPP-SL) · Seniors' Living Policy – Urban design guidelines for infill development, (SL Policy) · Draft Pittwater 21 Local Environmental Plan, (DLEP); · DCP 30 - Flood Risk Management, (DCP30); · Interim Geotechnical Risk Management Policy For Pittwater, (Georisk Policy). The proposal and its history 14 Development application No N0261/05 was lodged with the respondent council on 20 May 2005, to erect four (4) detached, self-contained dwellings under State Environmental Planning Policy (Seniors Living) 2004 (SEPPSL), and to strata subdivide. Nine (9) off-street car spaces, two (2) for each dwelling and one (1) allocated for visitors' is proposed. Notification 15 The application was notified to nearby owners and occupants for twenty-eight (28) days commencing 21 June 2005, and the council received eight (8) submissions. The council's decision 16 The council considered a report of its Development Unit and at the meeting held on 16 March 2006 resolved to refuse the application. The notice dated 24 March 2006 included thirteen reasons that are now reflected in the issues. The hearing 17 The appeal was filed on 13 April 2006. 18 On the site inspection a number of nearby residents and occupiers sought clarification of the applicant and gave evidence on behalf of the respondent council. These included: · Mr R Smith, resident of No 43 Waratah Street, Mona Vale; · Ms A Palmer, resident of No 138 McCarrs Creek Road; · Mr J Stead, resident of No 2139 Pittwater Road, Church Point; · Mr L Dixon, resident of No 7 Corniche Road, Church Point; · Ms S Ward, resident of No 2163 Pittwater Road, Church Point; · Ms M Crocher, resident of No 5 Valley Close, Bayview; · Mr Fletcher resident of No 39 Mikara Road, Bayview; · Mr F Makin, representing the Bayview Church Point Residents Association; · Mr M Dixon, Waratah Eco Works, of No 7 Corniche Road, Church Point; · Mr S Alexopoulos, son-in-law of the residents the Emmanoilidis at No 2137 Pittwater Road, Church Point; · Mr W (Bill) Buckle, resident of No 2123 Pittwater Road, Church Point; · Ms J Forbes, resident of No 1762 Pittwater Road, Church Point; and · Ms S C Hobley, Environmental and urban consulting horticulturalist; 19 On behalf of the applicant evidence was given by: · Mr D J Bliss, engineer with Jeffery and Katauskas whose statements are contained in Exhibits B, C and D; and · Ms M J Howden, horticulturalist and arborist.