Merlin Financial Solutions v Pittwater Council [2012] NSWLEC 1222

Land and Environment Court New South Wales

Medium Neutral Citation: Merlin Financial Solutions v Pittwater Council [2012] NSWLEC 1222 Hearing dates: 26 and 27 June 2012 Decision date: 14 August 2012 Jurisdiction: Class 1 Before: Smithson AC Decision: 1.The appeal is upheld. 2.Application N0482/10 for a shop top housing development at 223 Plateau Road, Bilgola Plateau is approved subject to the conditions contained in Annexure A. 3.The exhibits are returned to the parties with the exception of Exhibits A and 3. Catchwords: DEVELOPMENT APPLICATION - shop top housing, public opposition, tree removal, onsite landscaping, neighbourhood character, height, bulk and scale, setback, desired future character, privacy, and public interest Legislation Cited: Environmental Planning and Assessment Act 1979 Pittwater Local Environmental Plan 1993 Pittwater 21 Development Control Plan Cases Cited: Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Category: Principal judgment Parties: Merlin Financial Solutions Pty Ltd (Applicant)

Pittwater Council (Respondent) Representation: Counsel Mr M Staunton (Applicants)

Mr A Pickles (Respondent) Solicitors Tony Sattler, Sattler & Associates (Applicant)

Kate Dean, King & Wood Mallesons (Respondent) File Number(s): 10025 of 2012

JUDGMENT 1This is an appeal against the refusal by Pittwater Council (the Council) to an application under the Environmental Planning and Assessment Act 1979 (the Act) for a shop top housing development at 223 Plateau Road, Bilgola Plateau (the site). 2The proposed development is located on the north-eastern corner of Plateau Road and Grandview Parade immediately adjacent to (and at the south western end of) the Grandview Parade neighbourhood commercial centre which comprise three shops and the site. 3The site is vacant but contains seventeen native trees. It is informally used as a parking area to service the existing adjacent shops. 4The proposed development comprises a three storey building above two levels of basement parking containing: 437m² of commercial/retail floorspace, five residential units, and 29 car parking spaces with associated servicing, storage and waste facilities. 5All of the existing trees are to be removed. Three replacement trees are proposed to be planted in the adjacent road reserve with onsite landscaping comprising five trees: three tuckeroos and two magnolias as well as upper level planter boxes. Modifications to the footpath are also proposed which facilitates the additional planting in the road reserve. 6The Council's concern with the development was primarily the excessive canopy tree loss with removal of all seventeen trees on the site and two in the public domain (that is, the road reserve), and inadequate onsite landscaping proposed to offset the impact which was contrary to the desired landscape setting for development contained in the Council's environmental planning instruments. 7The Council also considered that the development would result in a height, bulk and scale that was inconsistent with the existing and future character of the area.