Land and Environment Court New South Wales Medium Neutral Citation: Clarke v Warringah Council [2014] NSWLEC 1051 Hearing dates: 10 March 2014 Decision date: 25 March 2014 Jurisdiction: Class 1 Before: Tuor C Decision: The Court orders by consent that: 1. Appeal is upheld. 2. Leave is granted to the applicant to rely upon amended plans numbered A-02, A-03, A-04, A-05, A-06, A-08, A-09, A-10, A-11, A-12, A-14 and A-15 Issue E dated 18 March 2014 prepared by Oceania Clarke Pty Limited. 3. Development consent is granted to Development Application No. DA2013/0757 for the demolition of the existing buildings on the site and the construction of a residential flat building containing 19 apartments with shared basement car parking at Lot B in DP 354373 and Lot 1 in DP 52644 known as No 57. Delmar Parade and No. 2 Carew Street, Dee Why, subject to the conditions of consent at Annexure A. 4. The exhibits, except Exhibit 3 may be returned. Catchwords: CONSENT ORDERS - Development application for a residential flat building. Matters raised by objectors. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Warringah Local Environmental Plan 2011 Warringah Local Environmental Plan Amendment No 8 Category: Principal judgment Parties: Stuart Clarke (Applicant) Warringah Council (Respondent) Representation: Mr J Robson SC (Applicant) Mr S Patterson, solicitor (Respondent) Norton Rose Fulbright (Applicant) Wilshire Web Staunton Beattie (Respondent) File Number(s): 10917 of 2013 Judgment 1This is an appeal against the refusal by Warringah Council (council) of a development application (DA2013/0757) for demolition of the existing buildings and construction of a residential flat building over basement car parking at 57 Delmar Parade and 2 Carew Street, Dee Why (site). 2The parties are seeking consent orders from the Court as the planning experts agree that the amended plans and conditions address the Contentions that were in dispute. The parties agree that the Court's Practice Note for notification of consent orders has been satisfied. The site and its locality 3The site consists of two allotments located on the corner of Delmar Parade and Carew Street. It is irregular in shape with frontages to Delmar Parade of 42.16m and Carew Street of 46.34m and a site area of 1,692.87sqm. The site slopes from Delmar Parade to the northern boundary about nine metres and there is a rock outcrop across the centre of the site, roughly at the boundary of the two allotments. Each allotment is developed with a detached dwelling house and vegetation, which has not been maintained and is overgrown. 4The surrounding area is a mixture of residential flat buildings on the northern side of Delmar Parade and detached dwellings on the southern side of Delmar Parade and the eastern side of Carew Street. Planning framework 5The site is within R3 Medium Density Residential Zone under Warringah Local Environmental Plan 2011 (WLEP). The proposed development is permissible with consent. At the time the application was lodged, both allotments had a maximum height limit under cl 4.3 of WLEP of 11m. Warringah Local Environmental Plan 2011 Amendment No 8 (WLEP No 8) commenced on 17 January 2014. This reduced the maximum height permissible on 57 Delmar Parade to 8.5m and did not include a savings provision. 6Warringah Development Control Plan (DCP) applies the development. Evidence 7The Court heard planning evidence from Ms D Laidlaw, for the council and Mr G Boston, for the applicant. These experts had prepared a joint report that addressed the contentions raised by council regarding the development application lodged with the appeal. The joint report was prepared after the commencement of WLEP No 8 and the experts agreed that the application should be amended to delete the two units in Upper Level 3, which exceeded the new height limit of 8.5m. Leave was sought and granted for the applicant to rely on the amended plans, which reflected this agreement (Exhibit A). 8The Court visited the site, surrounding area and objectors' properties. The written objections made in response to the notification of the application and the oral objections on site to the amended plans generally reflect the contentions originally raised in the Statement of Facts and Contentions filed by the council on 9 January 2014. The key concern of the objectors is the impact of the proposal on views of Dee Why Lagoon and Beach, Long Reef Headland and the ocean. They acknowledged that the amended plans would reduce the impact on views from the properties on the southern side of Delmar Parade but were still concerned about the loss of views. The objectors considered that the proposal did not comply with a number of planning controls, including the number of storeys permissible under WDCP and the height control in WLEP No 8. The development would be an overdevelopment of the site, which would result in unacceptable impacts particularly on views, privacy and noise. They also raised concerns about the increased traffic and construction impacts, including excavation and the potential for damage to their properties. 9During the hearing, the experts recommended further amendments to better address the concerns of the owners of units 10 and 13, 55 Delmar Parade. The amendments increase the setback of the terrace, living/dining area and bedroom 1 of Unit 17 on the Upper Level 2. This will further open up the view corridor for Unit 13. It will increase the separation distance between the balcony of Unit 13 and the terrace of proposed Unit 17 to be a minimum of about 16m and address issues of privacy and bulk. 10The experts also recommended a condition to maximise the view corridors to the north east for the units along the eastern side of 55 Delmar Parade. The proposed condition (condition (1(d)) includes the requirement to relocate palms with an existing or mature height of 5m, remove weeds and non endemic plants and provide vegetation along the western and northern boundaries of the site which does not exceed a mature height of 6m. 11While a part of the building along the western boundary would be non compliant with the 8.5m height control in cl 4.3 of WLEP No 8, this results from the topography of the site. The rock shelf and sudden drop in level is located roughly at the boundary between the allotments of the site, which also marks the change in the height control of 8.5m and 11m. 12Mr Boston has prepared a request under cl 4.6 to vary the height control in cl 4.3, which outlines that despite the non compliance the proposal meets the objectives for the zone and the control. Ms Laidlaw agrees that a variation to the control is reasonable given the circumstances of the case. In particular, the constraints the topography of the site place on achieving reasonable floor plates at the junction of the two height zones. Furthermore, the experts agree that the proposal, as amended, complies with the building envelope control, which is indicative that the setback and height achieve an acceptable bulk and scale. The splayed setback of the building from the western boundary opens up the view corridor to the north east and acceptable levels of privacy are achieved. 13The experts also agree that the variation to the three storey height standard in Control B2 of WDCP meets the objectives of the control and is acceptable for similar reasons to those outlined above. Given that the site is below street level, the proposal in Delmar Parade would appear as two storeys, in Carew Street the proposal would generally be perceived as three storeys, with some above a part fourth storey. When viewed from the north and west, the proposal would be 4 storeys but is acceptable given the relationship of the adjoining flat buildings. 14The experts also recommended that the setback of the driveway along the western boundary of the site be increased to be a minimum of one metre. This would enable landscaping to be provided to soften the appearance of the driveway structure. A condition has also been included (Condition 30) which sets noise criteria for the driveway, requires a noise barrier and certification that the noise attenuation measures will achieve the noise criteria. 15The experts agreed that with the deletion of the two units in Upper Level 3, the extent of view loss from houses on the southern side of Delmar Parade is reasonable given that it results from a development that is well below the maximum height control of 8.5m and that views of the ocean would be maintained. 16The experts also recommended conditions to address the method of excavation (Condition 10), the requirement for a dilapidation report (Condition 25) and construction management plan (Condition 26). 17There were no matters on which the experts disagreed and the matters raised by the objectors did not alter their opinion regarding the reasonableness of the proposal. In particular, that appropriate view sharing would be achieved. Findings 18The planning experts agree that the proposal as amended would achieve the objectives of the planning controls and results in acceptable impacts within the context of the site. They agree that the contentions raised by council have been addressed by the amendments and the proposed conditions, which have been agreed to by the applicant. 19Furthermore, the council report addressed the likely traffic or parking impacts of the proposal and the issues raised by the objectors were not contentions in the proceedings. In the absence of any expert evidence to the contrary, traffic or parking impacts would not be a reason to refuse the application. 20The parties filed amended plans and consent orders on 21 March 2014, which incorporate the changes recommended by the experts. I accept the evidence of the experts and am satisfied that the cl 4.6 variation to cl 4.3 can be upheld as the applicant's written request adequately demonstrates that compliance with cl 4.3 is unreasonable and unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the standard. I am satisfied that the proposal is in the public interest as it is consistent with the objectives of the height standard and the objectives for development within the R3 zone. The potential impacts, including loss of views, have been adequately considered and addressed through amendments to the plans and conditions. The contentions in dispute between the parties have been resolved and the consent orders may therefore be granted. Orders The Court orders by consent that: 1. Appeal is upheld. 2. Leave is granted to the applicant to rely upon amended plans numbered A-02, A-03, A-04, A-05, A-06, A-08, A-09, A-10, A-11, A-12, A-14 and A-15 Issue E dated 18 March 2014 prepared by Oceania Clarke Pty Limited. 3. Development consent is granted to Development Application No. DA2013/0757 for the demolition of the existing buildings on the site and the construction of a residential flat building containing 19 apartments with shared basement car parking at Lot B in DP 354373 and Lot 1 in DP 52644 known as No 57. Delmar Parade and No. 2 Carew Street, Dee Why, subject to the conditions of consent at Annexure A. 4. The exhibits, except Exhibit 3 may be returned. Annelise Tuor Commissioner of the Court ********** 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. Decision last updated: 26 March 2014