Architects H & B v Warringah Shire Council

[2007] NSWLEC 142

Land and Environment Court

of New South Wales

CITATION:	Architects H & B v Warringah Shire Council [2007] NSWLEC 142
PARTIES:	Applicant: Architects H & B Pty Ltd Respondent: Warringah Shire Council
FILE NUMBER(S):	11181 of 2006
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- consent orders
DATES OF HEARING:	13/03/2007
EX TEMPORE JUDGMENT DATE:	13 March 2007
LEGAL REPRESENTATIVES:	Applicant: Mr S Klinger, solicitor Respondent: Mr S Patterson, solicitor of Wilshire Webb

JUDGMENT:

- 2 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

13 March 2007

11181 of 2006 Architects H & B v Warringah Shire Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Warringah Shire Council (the council) of a development application to demolish the existing buildings and erect two residential flat buildings containing five dwellings on lot 73 DP 7413, known as 27 Redman Road, Dee Why.

2 The council’s planning report, written by Mr R Cole, had recommended approval. However, council rejected the recommendation and refused the application on 17 November 2006. Following an independent assessment by a planning consultant, Ms D Laidlaw, the council agreed to consent orders being granted by the Court.

3 The objectors to the proposal were notified. On a site view on 13 March 2007 the following objectors put their objections to the Court.

· Ms P Grigor of 18 Redman Road;

· Ms R Reid of 31 Redman road;

· Mr T Peel of 33 Burne Avenue;

· Mr m Simpson of 5/29 Redman Road;

· Mr B Goody of 8/25 Redman Road;

· Mr A Learmont of 5/25 Redman road; and

· Mr D lewis of 1/25 Redman Road.

4 The main issues mentioned were:

· Flooding;

· Parking;

· Loss of sunlight, daylight and outlook;

· Polluted water; damage by excavation.

5 The council’s planner, Mr Cole, advises that the applicant has prepared two flood studies and that the council’s engineering department is satisfied that

(a) the proposed building will not worsen the flooding of nearby sites; and

(b) the floor levels are above the 1:100 flood levels.

6 Mr Ryan also assures me that the proposal complies with the council’s parking requirements.

7 I accept that some apartments in No 25 will lose their existing pleasant outlook and access to western sunlight. However, that benefit is now obtained by the site being underdeveloped. As the site is sandwiched between two dense blocks of flats, it would not be reasonable to deny it the possibility of being redeveloped itself.

8 Mr Lewis, who lives at 1/25 Redman Road, said that he would not see the floods coming, so he might not be able to evacuate in time. This is not correct, as his window to the west is where there is a gap between the two buildings of the proposal. Mr Lewis also complained of bad smell in the water flowing down the site. Without more particulars I cannot take this complaint further.

9 A major concern was damage through excavation. Condition 27 includes the usual safeguards against this by requiring dilapidation surveys of Nos 25 and 29 Redman Road. At the request of the objectors, who live at 31 Redman Road and 33 Burne Avenue, the condition was extended to require dilapidation surveys also of those two properties.

10 In the circumstances the residents’ objections have not persuaded me to refuse the parties’ request for consent orders.

Consent orders

1. The appeal is upheld.

2. Development application to demolish the existing buildings and erect two residential flat buildings containing five dwellings on lot 73 DP 7413, known as 27 Redman Road, Dee Why is determined by the grant of consent subject to the conditions in Annexure A.

3. Exhibits 1 and A are retained on the court’s files.

______________________

11 Dr John Roseth

Senior Commissioner