Handley v Pittwater Council [2010] NSWLEC 1167

Land and Environment Court of New South Wales

CITATION : Handley v Pittwater Council [2010] NSWLEC 1167

APPLICANT Roger Handley and Dianne Handley PARTIES : RESPONDENT Pittwater Council

FILE NUMBER(S) : 11018 of 2009

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- demolition of an existing dwelling and the construction of a new dwelling - breaches of the council requirements for building envelope, site coverage, side building lines, retaining walls, visual impact and private open space

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Pittwater Local Environmental Plan 1993 Pittwater 21 Development Control Plan

DATES OF HEARING: 23 June 2010

DATE OF JUDGMENT: 6 July 2010

APPLICANT Mr G Green, solicitor SOLICITORS Pikes Lawyers

LEGAL REPRESENTATIVES: RESPONDENT Mr N Eastman, barrister SOLICITORS Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

6 July 2010

11018 of 2009 Roger Handley and Dianne Handley v Pittwater Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Pittwater Council (the council) of Development Application No. N037/09 for the demolition of an existing dwelling and the construction of a new dwelling at 413 Whale Beach Road, Whale Beach (the site). 2 The contentions raised by the council relate to breaches of the council requirements for building envelope, site coverage, side building lines, retaining walls, visual impact and private open space. Early contentions relating to building height, view loss, building colours and materials, eaves, visual privacy and solar access where not pressed by the council following the submission of amended plans or conditions acceptable to the applicant. 3 I have found that the breaches of the council requirements are not individually, or collectively sufficient to warrant the refusal of the development application. The site 4 The site is Lot 286 in DP 16362. The site is generally rectangular in shape with a street frontage of 15.68 m, a northern side boundary of 47.29 m, a southern side boundary of 53.425 m and an area of 810 sq m. The rear boundary has a frontage to the Pacific Ocean. 5 The site is occupied by a multi-level dwelling that steps down the steeply sloping site. There is a separate garage near street level and an accessible structure containing a bedroom at the lowest level. 6 The area is dominantly residential in character with the property to the north being undeveloped and the property to the south developed with a single dwelling house. The eastern side of Whale Beach Road, in the vicinity of the site, slopes steeply from the road and has expansive views of the ocean and some locations towards Palm Beach and Barrenjoey Headland. Relevant planning requirements 7 The site is zoned Residential 2(a) under Pittwater Local Environmental Plan 1993 and the proposed development is permissible with consent in this zone. State Environmental Planning Policy No. 71-Coastal Protection applies although the council raised no contentions in relation to these plans. 8 Pittwater 21 Development Control Plan (the DCP) applies and contains provisions for the erection of a dwelling house. The relevant sections are Section D12.8 - Building Envelope, Section D 12.10 - Site Coverage - Environmentally Sensitive Land, Section D12.6 - Side and Rear Building Lines, Section D12.13 - Construction, Retaining walls, Terracing and undercroft areas, Section D12.14 - Scenic Protection Category One Areas and Section C1.7 - Private Open Space. 9 Section A4.12 addresses the Palm Beach Locality. The site is within this designated area of the DCP. Many of the DCP requirements refer to the desired future character of this area and the principle elements from the description in Section A4.12 are: - low density with a maximum two storeys in a landscaped setting, - integration with the landform and landscape, - development below the tree canopy, - bulk and scale to be minimised, - future development should respect the horizontal massing of existing building forms, - development on slopes will be stepped down the slope and be integrated with the landform and landscape, and - site disturbance will be minimised. 10 Section A1.10 provides the structure of the DCP. Relevantly, the DCP provides Outcomes which are a list of the outcomes that the development control is seeking to achieve, Controls which are generally numerical requirements that a proposed use/development should satisfy to achieve the outcomes of the development control and Variations which outline the circumstances in which consideration can be given to the variation to a control. The evidence 11 Expert town planning evidence was provided by Mr Greg Boston for the applicant and Ms Joanne Marshall for the council. Mr William Zuccon, the project architect provided a design statement. Building Envelope Control 12 Section D12.8 provides for development to be sited within an envelope projected at 45° from a height of 3.5 m from the side boundaries. 13 The outcomes in Section D12.8 are: * To achieve the desired future character of the Locality. (S) * To enhance the existing streetscapes and promote a building scale and density that is below the height of the trees of the natural environment. * To ensure new development responds to, reinforces and sensitively relates to spatial characteristics of the existing natural environment. * The bulk and scale of the built form is minimised. (En, S) * Equitable preservation of views and vistas to and/or from public/private places. (S) * To ensure a reasonable level of privacy, amenity and solar access is provided within the development site and maintained to neighbouring properties. (En, S) * Vegetation is retained and enhanced to visually reduce the built form. (En)