Archisoul Architects Pty Ltd v Pittwater Council [2014] NSWLEC 1256

Land and Environment Court New South Wales

Medium Neutral Citation: Archisoul Architects Pty Ltd v Pittwater Council [2014] NSWLEC 1256 Hearing dates: 27 November and 8 December, 2014 Decision date: 10 December 2014 Jurisdiction: Class 1 Before: O'Neill C Decision: 1.By consent, the appeal is upheld. 2.Development Application No. N0088/13 for the demolition of an existing structures and the erection of a three storey shop top housing development at 373 Barrenjoey Road, Newport is approved, subject to the conditions of consent at Annexure A. 3.Pursuant to s 97B of the Environmental Planning and Assessment Act 1979 (NSW) the Applicant shall pay the Respondent's costs thrown away (as agreed or assessed) associated with the assessment of amended plans dated 28 August 2014 and 17 November 2014. 4.The exhibits, other than exhibits 4 and B, are returned. Catchwords: DEVELOPMENT APPLICATION: consent orders; resident objectors. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Archisoul Architects Pty Ltd (Applicant) Pittwater Council (Respondent) Representation: Mr Paul Vergotis Solicitor (Applicant) Ms Marion Carpenter Barrister (Respondent) TressCox Lawyers (Applicant) King & Wood Mallesons (Respondent) File Number(s): 10327 of 2014

Judgment 1COMMISSIONER: This appeal, pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979, comes before the Court for consent orders in relation to Development Application No. N0088/13 for demolition of an existing structures and the erection of a three storey shop top housing development comprising one shop and six apartments (the proposal) at 373 Barrenjoey Road, Newport (the site). 2The appeal was subject to mandatory conciliation on 25 July 2014, in accordance with the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation conference phase, the conciliation conference was terminated on 8 September, 2014, pursuant to s34(4) of the LEC Act. The proposal was amended following the conciliation conference and leave was granted by the Court on 27 November 2014 for the applicant to rely on the amended plans (exhibit B). 3Prior to the hearing, the parties agreed to enter into consent orders, based on the amendments made to the proposal. The changes made to the proposal can be summarised as: * The retail/commercial tenancy on the ground floor was amended to a single retail/commercial tenancy, with a balcony and planting fronting the street and entry to the tenancy adjacent to the entry to the residential foyer, accessed via a ramp from the footpath. The driveway on the southern side of the site was narrowed. * On the first and second floors, the rear setback was increased to 6m, the rear balconies were reduced in size and vertical louvres were added to the western elevation to obstruct views from the living areas to the existing apartments at 49-51 Foamcrest Avenue, to the west of the site. * On the second floor, the side setback from the southern boundary was increased to 3m and the two eastern apartments were reduced in size to 1 bedroom apartments. The balconies of the two eastern apartments were also reduced in area. 4In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraphs 35-6) provides: Application for final orders by consent of parties 35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval. 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 5The consent orders hearing commenced on site on 27 November 2014. At that time, Ms Carpenter advised the Court that not all the objectors had been notified of the hearing, nor had they been provided with the content of the proposed orders and the conditions of consent. Consequently, the hearing was adjourned to allow the Council to notify all of the objectors of the amended plans, the proposed orders and conditions of consent. The hearing recommenced on site on 8 December 2014 and five resident objectors provided evidence on site and the Court, in the company of the parties and their experts, viewed the site from two of the objectors' townhouses. Their objection to the proposal can be summarised as: * The proposal will result in the loss of vegetation on the site; * The proposal will impact the filtered views of the beach from the roof terrace of townhouse 16 of 49-51 Foamcrest Ave, to the south of the site; * The proposal will result in the loss of privacy to the townhouses/apartments to the south and west of the site at 49-51 Foamcrest Ave; * The three storey proposal does not comply with the Newport Masterplan.