Land and Environment Court of New South Wales CITATION : Romeo & Anor v PIttwater Council [2008] NSWLEC 1478 APPLICANT Romeo, Guiseppe & Anor PARTIES : RESPONDENT Pittwater Council FILE NUMBER(S) : 10200 of 2006 CORAM: Murrell C - Taylor C KEY ISSUES: Modification Application :- Appeal s 96 modification application, Encroachment into public domain, view loss. LEGISLATION CITED: Environmental Planning and Assessment Act, 1979 Pittwater Local Environmental Plan CASES CITED: Castle Constructions Pty Limited v North Sydney Council (2008) NSWLEC 239 Design Power Associates Pty Limited v Willoughby City Council (2005) NSWLEC 470 DATES OF HEARING: 23/10/08-24/10/08 EX TEMPORE JUDGMENT DATE : 24 October 2008 APPLICANT Mr P Tomasetti SC Instructed by D C Balog & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr M Causer Solicitor of Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 24 October 2008 10200 of 2006 Romeo Guiseppe & Anor v Pittwater Council This determination was given extemporaneously and it has been edited prior to publication JUDGMENT 1 This matter has come before the Court as consent orders for a section 96(8) modification application to a consent originally granted by this Court on 12 January 2007. The previous appeal was under existing use rights for re-development of the 'Pasadena' restaurant. The proposal was a restaurant for 138 patrons and four residential units above with car parking in a basement level. The subject site is known as No.'s 1858, 1858B and 1858C Pittwater Road, Church Point. 2 The scope of this section 96 application is somewhat confined and limited in that it is to provide for: a change in the fenestration, doors and windows of certain elevations; a reduction in the number of residential units; a change to the car parking in the basement level, reducing the number of car parking spaces from 12 to 9, plus one visitor space. The parking proposed for the units is as required in council's development control plan and satisfies council. This application reduces the number of units with a reconfiguration to provide for larger units and as such there is a reduced number of car parking spaces required by the Council. 3 The section 96 application is also to provide for two vents on the roof to a maximum RL of 13.10, the same as the lift overrun. A spa is also to be provided on the eastern side of the unit such that it would then provide for two screens under the roofline as originally approved. There is also a further projection of 1 metre approximately to the northern face of the building to the water. 4 The Court met on site yesterday and heard from the parties as well as a number of resident objectors. An inspection of the area was also carried out. The objectors included Mr Purvis, who is concerned about the encroachment of the proposed podium into the adjoining 'Thomas Stephens Park'. He said the Park is an important on shore meeting place for many of the residents that live on the islands. He is also concerned about the interface of the apartments with the park on the western side in terms of the noise generated in the park impacting on the new apartments. He also put to the Court issues that had previously been ventilated in the original hearing before Commissioner Watts. 5 Mr Souter is concerned about the proposed development not being consistent with the draft plan of management that has been prepared for the area in terms of the proposed parking spaces 5, 6, 7 and 8. He also considers the encroachment of the podium 750­800 millimetres high into the park to the west takes away valuable space for the community to use. He considers that the proposed development should be contained within the property boundary including the parking. The impact of noise from the park on the adjoining units was also a concern. 6 Mr Roberts is concerned that the podium takes up between 15­20 percent of the public park where there are tables and chairs and that the podium is an unnecessary incursion into the park. He inquired as to the function of the podium and commented that it is a private intrusion into public land. He also expressed concern about the other matters that had been raised previously in the hearing before Commissioner Watts. 7 Mr Stutchbury, the architect had the opportunity to respond to questions about the purpose of the podium. He advised the Court that in the consultative process with council and the community that this was discussed and the fact the building needs to be raised some 450 millimetres because of flood level regulations and that there is a 'quid pro quo' in that the proposal provides greater public access at the pinch point of the building forward at the northern face where the stairs are removed and there is greater ease of access for the public to walk around the building from Thomas Stephens Reserve, through to the water rid the public promenade around the subject site. He indicated that the design of the podium is one that could be reduced in size and is a matter that the applicant subsequently responded to with an amendment to the plan. 8 Mr Stutchbury I should also indicate said that the podium would provide for a functional element in terms of the higher activity, numbers of people around the building moving to and from the public domain in and out of the building. 9 Mr Makim also expressed concern about the proposed development not being consistent with the draft master plan. 10 The Court raised some concerns at the site visit yesterday about the podium. First of all I will preface this by saying that Mr Tomasetti for the applicant strenuously urged on the Court not to err in law by considering issues that had been previously decided before Commissioner Watts. In this regard today, Mr Tomasetti in submissions has handed up two decisions to the Court; one being Design Power Associates Pty Limited v Willoughby City Council (2005) NSWLEC 470 in LGERA 148. In this judgment the matter of raising issues that have not been raised by parties is referred to and that the Court should confine its consideration to issues raised in the proceedings by the parties. In this regard, the objectors are not a party to the proceedings. 11 The Court also had referred the matter of Castle Constructions Pty Limited v North Sydney Council (2008) NSWLEC 239. Similarly, this makes it clear on a s 56 appeal where a Commissioner erred in law by the failure to afford procedural fairness by making findings without giving the opportunity to make submissions. 12 The Court must consider matters relevant to this section 96 application. For an assessment under s 79C of the Environmental Planning and Assessment Act, 1979 the Court can bring to mind the matters that are triggered by the modifications. In this regard the Court advised the applicant that there is a clear nexus between the amendments proposed; that is the extended doorways provided to retail area number 1 and the podium. In this regard it could be seen that the podium would be used or would become or would facilitate the use of the podium by the retail development of No. 1 with the doors that are now proposed in particular facing to the west and the Park. 13 The applicant indicated that the podium was for the public use and not for the private use of or an extension of the retail area No. 1. At the same time it could be seen that often development is by way of creep and that allowing for the wide door opening to the west this could in fact end up or there could be a perception that the public domain area would become or perform the function of a private area. 14 The applicant responded to the Court's concerns and today have provided amended plans which show that the podium has been reduced in size by 1.75 metres in an east/west orientation, reducing the podium by some 25 per cent. There is also proposed today a clear delineation of the public around the building and the walkways that are provided such that the podium at the ground level around the private land will be accessible by the public and the pedestrian flows are shown on the amended plan. That is the areas available to the public are clearly delineated in the amendments provided today. 15 The amended plan today also includes for car spaces 5-8, which are currently on the leased land to the east of the subject site, that these car spaces will have a crushed granite finish such that in the short term this would then provide for the provision of that car parking and if in the future, in 2013 when the subject lease is up for renewal if this area was not granted a further lease to the occupier, then the area could revert to public open space. We note that the basement would allow for additional car parking to be re-introduced to accommodate this shortfall. It is also noted that the existing landscaping around the substation would be retained. 16 The amended plan also shows the landscaping requirements of council for a certain number of native species within the development. The front lawn area is also shown to slope from an RL of 2.4 down to the public promenade around the walkway with landscaping to define or delineate the lease area from the public domain. 17 The following findings are made after conferring with Commissioner Taylor. We have considered the evidence to the Court and the objections of the residents. 18 While this modification application was made under section 96(1)(a) for minor impacts or rather minimal environmental impacts nonetheless the council, as part of the process under section 96(8) advertised the matter because it had previously generated a great deal of public interest. Many of the people that originally objected to the proposal indicated to the Court that they were taking the opportunity to ventilate their concerns again. 19 The Court is conscious of the rules of 'double jeopardy', res judicata. That is matters previously determined cannot be re-opened and I must focus on the section 96 modifications before the Court today. We are satisfied that the proposed amendments for the reduction of the podium has the effect of not only reducing it in size but it will be less invasive in not only a physical sense but a visual sense into the park. A condition is imposed to the effect that the podium is to be used for public purposes and not to be for the exclusive use of the adjoining development. Having regard to the concerns of the community an additional condition D58 is to be attached, that the podium is to remain part of the public domain of the reserve to be used by the public and not to be for private use. 20 It is most important where private verses public interests are concerned that careful consideration is given to the impacts of development. In this regard with the imposition of a condition and with the redesign of the podium to reduce its incursion into the park, we are satisfied there is no reason as to why the Court should not agree to enter into the consent orders handed up by the parties. 21 One other issue raised by Mr Soriano of 2195 Pittwater Road, Church Point who lives in an elevated house diagonally opposite the subject site, expressed concern to the Court in terms that there would be a greater loss of view from his dwelling occasioned by the section 96 modification in that the spa area of the building to the north on the upper level. He was also concerned about the vent pipes interfering further with his view. In this regard, the Court had the opportunity of inspecting his property and we have concluded that there would be minimal or imperceptible impact from the additional width of the spa area and the balcony to the north at the water side of the proposal, on the opposite side to the view from Mr Soriano's property. Given the extent of his view, we are satisfied that these modifications would not warrant refusal of the modification application, as it would represent a most minimal incursion into the view. 23 Having regard to the site inspection, having regard to the concerns of the residents, we are satisfied that with the amendments proposed by the applicant today that the development in its context does not warrant refusal. 24 The respondent in these proceedings, came to the hearing yesterday with consent orders, apart from the modifications described above. The consent orders remove the conditions for a deferred commencement. The council is now satisfied the matters originally in the deferred commencement conditions have now been satisfied and, as such, the consent can now operate. In particular the deferred commencement condition for the easements that are provided over the Crown land are now created and there is no need for a public road as such. Clearly the easements are required in the event that if there is no further extension of the leasehold area over Crown land. 25 The development application as approved is for land with fee simple title where the restaurant is to be constructed with the apartments and basement parking and the lease hold area is the front portion known as 320 and portion or lot 321. The development application was for all the above lands plus the podium in the park that is lot 319. 26 An electronic version of the conditions is to be forwarded to the Court to include the additional condition attached. That is D58 for the podium to remain in public use and not for the exclusive use of the proposed development. The consolidated conditions are to provide a description of the land to make it quite clear that this development consent is in respect of those parcels of land that I have referred to above. 27 On receipt of the above the consent orders will then be issued to reflect the agreement of the parties for the deletion of the deferred commencement matters and the condition required by the Court, Condition D58 with the additional words: " The podium structure approved to be constructed in Thomas Stephens Reserve is not approved for any use associated with the development but remains for the use of the public". 28 Accordingly on the basis of our assessment above the formal orders of the Court by consent will be: 1. The section 96(8) application to modify development consent 10200 of 2006 filed with the Court on 24 June 2008 is approved, subject to the amendments in Exhibit B. 2. Development Consent No. 0051/05 (10200 of 2006) is amended by deletion of the conditions comprising annexure "A" to Court Order dated 12 January 2007 and their substitution with the conditions annexed and marked "A". 3. The exhibits are returned with the exception of 3, A and B. 4. The Court notes the Council is satisfied in relation to the matters prescribed in the deferred commencement conditions imposed as part of Court Order dated 12 January 2007 and that Development Consent No. 0051/05 (10200 of 2006) is operative as from the date of this order. 1. ___________________ J S Murrell Commissioner of the Court es 1. ___________________ Dr. Mark Taylor Commissioner of the Court - 1 - 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.