21 Bungan Street Pty Limited v Warringah Council [2014] NSWLEC 1158

Land and Environment Court New South Wales

Medium Neutral Citation: 21 Bungan Street Pty Limited v Warringah Council [2014] NSWLEC 1158 Hearing dates: 23 July 2014 Decision date: 01 August 2014 Jurisdiction: Class 1 Before: Moore SC Decision: See (13) Catchwords: DEVELOPMENT APPLICATION: privacy; amenity; streetscape Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Category: Principal judgment Parties: 21 Bungan Street Pty Limited (Applicant)

Warringah Council (Respondent) Representation: Mr G McKee, solicitor (Applicant) Mr S Patterson, solicitor (Respondent) McKees Legal Solutions (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10096 of 2014

Judgment 1SENIOR COMMISSIONER: The applicant in these proceedings sought development consent for the demolition of two exiting detached dwelling houses and the construction of a multiunit complex pursuant to State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the State Environmental Planning Policy). The units were to be constructed at the head of the cul-de-sac that is Bernie Avenue at Forestville. The application was the subject of a s 34 conciliation conference that convened on several occasions (but primarily, as to the merits, on site on 8 May 2014 where objections to the then proposal were heard as submissions from a number of residents prior to the commencement of the conciliation process). 2The conciliation process resulted in significant ameliorative amendments to the plans being proposed to and accepted by the applicant to remedy impacts on the surrounding residents and to respond to the concerns of the council about the built form of the proposal as set out in the contentions (concerning the original proposal) that had been filed on 24 March 2014. 3The primary alteration that was made by the amended plans was to reduce the number of buildings proposed for the site from four to three - by, in effect, the consolidation of the two buildings in the middle of the proposal into a single building. It also involved the reorientation of the primary living areas of several of the proposed units within the buildings away from the surrounding residences. A wide range of other amendments was made that improved the quality of the design, both for the future residents of the development and for the residents of the surroundings dwellings. 4As a result of the conciliation process, the matter was not able to be resolved by a s 34 agreement, as the council considered it appropriate (and the applicant accepted that it was appropriate) that the residents have a further opportunity to comment on the revised plans. As a consequence of that, as the council no longer pressed any objections, the matter was set down for an onsite consent orders hearing on 23 July. 5At that hearing, I heard further submissions (this time constituting evidence in the proceedings) by three of the local residents. Notes of that which was said on 8 May concerning the proposed development as it had originally been proposed were also tendered to form part of the evidence in the proceedings. The consequence of that was that, for the purposes of the consent orders hearing, I had a bundle from the council that encompassed all the written objections to the proposal; I had the notes of the submissions by objectors made during the course of the conciliation conference on site; and I had formal evidence given by three objectors during the course of the consent orders hearing on 23 July. 6During the course of the consent orders hearing, I also had the opportunity of inspecting one of the adjacent properties, that immediately to the east of the northern end of the proposal, to consider further some objections on privacy grounds that were raised by those residents and understand a concern that they raised concerning light impact from vehicles entering the proposed basement car parking space. 7As a result of the inspections of the site and the submissions of the local residents, the applicant agreed to a number of further ameliorative changes (of a modestly minor nature) relating to things such as the dimensions and fixing of louvres to prevent overlooking; an additional wall to deal with the question of light spill from headlights of vehicles entering the underground car park; avoiding light spill from private open space areas at the upper level at the rear of the property and the like. 8During the course of the onsite hearing, I also heard evidence given by Ms Laidlaw, the planner and urban design consultant retained by the council in the proceedings. In the presence of the objectors, she went through each of the contentions that was originally put by the council as warranting refusal of the application and explained why, on the basis of the amended plans, she was now satisfied that those contentions no longer required to be maintained. 9That explanation, one that I do not need to repeat in these reasons, was given in the presence of the objectors to enable them to understand why the council no longer objected to the proposal. Having heard her explanation, I am satisfied that the reasons she gave for not now opposing the amended application were valid responses to the matters that had been raised during the course of the original process on the original plans. 10There is, however, one matter that I need to observe for completeness for the benefit of the residents. Part of their objections, as I understood it, was that they wished the form of the development, in appearance, to be much more like the residences that they themselves occupied in the street. Whilst that is an entirely understandable response, it is, in fact, not a correct understanding of the planning approach that arises from the State Environmental Planning Policy, a facultative and beneficial policy aimed at making it possible to develop residences for these purposes in areas where they would not otherwise be permitted. 11It is not intended that development pursuant to the State Environmental Planning Policy will merely mimic that within which it is to be placed. Indeed, to do so to some extent, if this development were to mimic that which is around it, would have resulted in what would have appeared as three extraordinarily large and bulky "McMansions" in a streetscape where those would not have been appropriate. What is necessary is that development pursuant to this facultative planning instrument is not to be completely alien, out of scale and unable to fit reasonably within its local context. 12I am satisfied, particularly as a consequence of the amalgamation of the two central elements into a single building, that that which is now proposed is not fundamentally alien. It is different - necessarily it is different - but it is different yet compatible with the community into which it is to be inserted. It is for this reason, as well as the explanation given by Ms Laidlaw as to why the detailed contentions are now no longer appropriate to be pressed, that I have concluded that it is appropriate, despite the continuing objections, to grant consent pursuant to the proposed consent orders in these proceedings. 13The consequence is that the proposed consent orders, a signed copy of which will be handed up imminently, are appropriate to be made in the following terms: (1)The applicant is granted leave to amend its development application in accordance with the plans referred to in condition 1 of annexure A. (2)The appeal is upheld. (3)Development application number 2013/1528 seeking approval for a seniors living development comprising 11 units and 24 basement car spaces at 11 to 13 Bernie Avenue, Forestville is approved, subject to the conditions set out in annexure A. (4)The applicant is to pay the respondent's costs arising under s 97B of the Environmental Planning and Assessment Act 1979 in an amount as agreed or assessed. (5)The exhibits, other than exhibits A, 2 and 4, are returned. Tim Moore Senior Commissioner 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: 13 August 2014