Archisoul Architects Pty Ltd v Pittwater Council

[2014] NSWLEC 1256

Land and Environment Court

New South Wales

Case Title:	Archisoul Architects Pty Ltd v Pittwater Council
Medium Neutral Citation:	[2014] NSWLEC 1256
Hearing Date(s):	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
- Counsel:	Mr Paul Vergotis Solicitor (Applicant) Ms Marion Carpenter Barrister (Respondent)
- Solicitors:	TressCox Lawyers (Applicant) King & Wood Mallesons (Respondent)
File Number(s):	10327 of 2014

JUDGMENT

1. COMMISSIONER: 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).

2. The 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).

3. Prior 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.

4. In 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.

5. The 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.

Planning framework

1. State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposal, at cl 4(1)(a).

2. The site is zoned 3(a) General Business, pursuant to Pittwater Local Environment Plan 1993 (LEP 1993) and the proposal is permissible with consent (cl 21O of LEP 1993).

3. The applicant lodged the development application for the proposal prior to the commencement of the Pittwater Local Environment Plan 2014 (LEP 2014) on 15 August 2014. LEP 2014 contains a savings provision, at cl 1.8A, as follows:

   If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

4. The site is zoned B2 Local Centre, pursuant to LEP 2014 and shop top housing is permissible with consent in the B2 zone. The objectives of the B2 zone are as follows:

   · To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.
   · To encourage employment opportunities in accessible locations.
   · To maximise public transport patronage and encourage walking and cycling.
   · To provide healthy, attractive, vibrant and safe local centres.
   · To strengthen the role of centres as places of employment.
   · To provide an active day and evening economy.
   · To provide for residential uses above street level where they are compatible with the characteristics and uses of the site and its surroundings.

5. The relevant provisions of Pittwater 21 Development Control Plan (P21 DCP) apply to the proposal. The Newport Village Commercial Centre Masterplan (appendix 12 of P21 DCP) also applies to the proposal.

Expert evidence

1. In relation to planning, the Council relied on the expert evidence of Ms Deborah Laidlaw and the applicant relied on the expert evidence of Mr Denis Smith.

2. The experts agreed on the following:

   ·The setback of the second floor from the southern boundary will preserve the outlook from the roof terrace of townhouse 16 of 49-51 Foamcrest Avenue to the beach.

   ·The highlight windows on the southern façade of the proposal, with a sill height of 1.55m and translucent glazing, will not result in overlooking of the balconies and private open space of 49-51 Foamcrest Avenue.

   ·The louvres over the windows on the western façade will prevent overlooking from living areas to the apartments at 49-51 Foamcrest Avenue.

   ·The internal amenity of the proposal is acceptable.

3. The experts agreed in joint conferencing on a number of amendments to the proposal which are described in the conditions of consent C1(a) to (f) (exhibit 3). In evidence, the experts disagreed on the amendment described in (f), as follows:

   (f) The walls to each of the northern and southern ends, respectively, of the balconies to units 1, 2, 4 and 5 and the walls dividing the balconies between units 1 and 2 and between balconies 4 and 5 are to be vertical, not sloping, at their eastern end and each wall is to be of a maximum width determined by the width of the top of each wall as shown on the approved plans.

4. According to Mr Smith, condition C1(f) is unnecessary as it will not result in a greater retention of the views from the adjoining roof terrace.

Submissions

1. Ms Carpenter submits that the objections raised by the resident objectors regarding the proposal have been considered by the Council and where appropriate, addressed by the amendments made to the proposal.

2. The application was lodged 6 months and 2 days after Council's refusal of the development application, dated 14 November, 2013. Mr Vergotis submits that the refusal notification was received by the applicant some days after 14 November, 2013 and therefore the appeal was made to the Court within 6 months of receiving the notice, pursuant to s 97(1)(a) of the Environmental Planning and Assessment Act 1979. Ms Carpenter submits that the Council does not raise a jurisdictional issue.

Findings

1. The three townhouses at 49-51 Foamcrest Avenue oriented to the northern side boundary borrow some of their amenity from the undeveloped site adjacent. While I understand the concerns of the resident objectors regarding preserving the vegetation on the site and their outlook and privacy, the orientation of these townhouses to the side boundary means that their amenity is vulnerable to the development of the adjoining property. Any amenity impacts on the existing townhouses must be balanced against the reasonable development of the site.

2. I accept the agreement of the planning experts that the setback of the proposal to the southern and western boundaries, the highlight windows in the southern façade and the louvres over the windows in the western façade will result in the proposal having an acceptable impact on the amenity of the residents in the townhouses and apartments at 49-51 Foamcrest Avenue.

3. I accept the agreement of the planning experts that the amendments to the proposal to provide a 3m setback on the second floor to the southern boundary will substantially preserve the views to the beach from the roof terrace of townhouse 16 at 49-51 Foamcrest Avenue.

4. I accept the evidence of Mr Smith in relation to Condition C1 (f) and it is deleted, as it would erode the architectural consistency of the Barrenjoey Road elevation, without providing any benefit to the preservation of views of the beach from townhouse 16 of 49-51 Foamcrest Avenue.

Conclusion

1. I accept the agreement of the parties that the amendments to the proposal have addressed Council's contentions in relation to the proposal and I am satisfied that the proposal is consistent with the objectives of the B2 zone of LEP 2012.

2. In considering the amended plans and documents and agreed conditions of consent and taking into consideration the issues raised by the objectors, I am satisfied that it is lawful and appropriate to grant consent to the proposal, having regard to the whole of the circumstances.

Orders

1. The orders of the Court are:

   (1)By consent, the appeal is upheld.

   (2)Development Application No. N0088/13 for 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.

   ____________

   Susan O'Neill
   Commissioner of the Court

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