Cornerstone Property Group Pty Ltd v Warringah Council - [2004] NSWLEC 189

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189

PARTIES:
APPLICANT
Cornerstone Property Group Pty Ltd
RESPONDENT
Warringah Council
INTERVENOR
Koumana Holdings Pty Ltd

CASE NUMBER: 10493 of 2003

CATCH WORDS: Development Application

LEGISLATION CITED:
Warringah Local Environmental Plan 2000
State Environmental Planning Policy No 65

CORAM: Tuor C.

DATES OF HEARING: 08-09/12/2003, 26/03/2004, 08/04/2004

DECISION DATE: 29/04/2004

LEGAL REPRESENTATIVES

APPLICANT
Mr C McEwen, Barrister
SOLICITORS
Staunton Beattie
RESPONDENT
Mr N Howie
SOLICITORS
Wilshire Webb
INTERVENOR
Mr G Newport, Barrister
SOLICITORS
Legal Services Group

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10493 of 2003
Tuor C
29 April 2004

CORNERSTONE PROPERTY GROUP PTY LTD

Applicant

v

WARRINGAH COUNCIL

Respondent

KOUMANA HOLDINGS PTY LTD

Intervenor

Judgment

Introduction

This an appeal against the refusal by Warringah Council (the council) of a development application for the demolition of existing buildings and construction of a mixed commercial and residential flat building with basement car parking at 1073, 1085 and 1087 Pittwater Road, and a two-storey house and swimming pool at 1 Eastbank Avenue, Collaroy (referred to as the Cornerstone site in this Judgement).
The site and it context
The site is an amalgamation of a number of allotments being: lots 1 and 2 D. P. 6985, lot 1 D. P. 774417, and lot 6 D. P. 13919524 at the north east corner of Pittwater Road and Eastbank Avenue. It has a site area of approximately 2985m2, with a frontage of about 63 metres to Pittwater Road and about 50 metres to Eastbank Avenue.
Existing development on the site includes a house used as a residential flat building at 1 Eastbank Avenue and two-storey commercial buildings with ground level shops at 1073, 1085 and 1087 Pittwater Road.
Development to the south and west of the site is residential. Adjoining the site to the north is commercial building (No.1091-1095 Pittwater Rd, referred to as Koumana site in this Judgement). This site adjoins the Collaroy Cinema (No. 1097 Pittwater Rd) on the corner of Pittwater Road and Alexander Street, which is a heritage item. To the east of the site, across Pittwater Road, is the Collaroy Beach Surf Club, car park and foreshore park onto the beach.
The Koumana site has a width of approximately 13.5m with an angled frontage to Pittwater Road of about 15.6m. Its depth varies between approximately 40.5m and 48m.
Background

The development application was lodged on 11 September 2002 and was notified to adjoining residents. A number of objections were received and a mediation session was held between residents and the applicant. Council received amended plans on 9 December 2002, which were renotified and further submissions were received. Further amended plans were received on 11 February 2003. Council staff recommended approval of the application but Council refused it on 22 April 2003.
The applicant lodged an appeal and further amended plans were received and re- notified in September 2003. The Department of Infrastructure, Planning and Natural Resources issued…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWLEC 189
Decision Date: 29 April 2004

CaseChat Overview and Summary

The appeal was against the refusal by Warringah Council of a development application for the demolition of existing buildings and construction of a mixed commercial and residential flat building with basement car parking at 1073, 1085 and 1087 Pittwater Road, and a two-storey house and swimming pool at 1 Eastbank Avenue, Collaroy. The site is an amalgamation of a number of allotments being: lots 1 and 2 D. P. 6985, lot 1 D. P. 774417, and lot 6 D. P. 13919524 at the north east corner of Pittwater Road and Eastbank Avenue. The site has a site area of approximately 2985m2, with a frontage of about 63 metres to Pittwater Road and about 50 metres to Eastbank Avenue. Existing development on the site includes a house used as a residential flat building at 1 Eastbank Avenue and two-storey commercial buildings with ground level shops at 1073, 1085 and 1087 Pittwater Road. Development to the south and west of the site is residential. Adjoining the site to the north is commercial building (No.1091-1095 Pittwater Rd, referred to as Koumana site in this Judgement). This site adjoins the Collaroy Cinema (No. 1097 Pittwater Rd) on the corner of Pittwater Road and Alexander Street, which is a heritage item. To the east of the site, across Pittwater Road, is the Collaroy Beach Surf Club, car park and foreshore park onto the beach. The proposal is to demolish the existing buildings on the site and to construct a mixed commercial residential flat building with basement car parking at 1073-1087 Pittwater Road Collaroy. The building will consist of 10 commercial/retail/restaurant/cafe units at ground level, 37 residential apartments and basement parking for 90 cars plus disabled parking. A two-storey house and swimming pool are proposed for 1 Eastbank Avenue. The main issues raised by residents were: The impact on privacy and overshadowing of Nos. 3 and 5 Eastbank Avenue and No. 4 Alexander Street. Impact on views from properties and from the view corridor in Eastbank Avenue. Impact of traffic and parking. The Court found that the proposed development will have an acceptable impact on the amenity of nearby residents through overshadowing, loss of privacy and views and traffic impacts. In relation to overshadowing, the Court found that 50% of the private open space of the proposed dwelling at 1 Eastbank Avenue and the existing dwellings at 3 and 5 Eastbank Avenue would receive direct solar access between 11 a.m. and 3 p.m., which satisfied the standard of cl 62 in LEP 2000. In relation to privacy, the Court found that there will be limited privacy impacts between the development and the adjoining houses at Nos 1, 3 and 5 Eastbank Avenue or No. 4 Alexander St. The Eastbank Avenue properties are at a higher level than the proposal. There is significant separation between the houses and the common boundary, in the order of 15-20m, with established landscaping that will be supplemented by the proposed landscaping and fencing. In addition, the balconies of the units 22, 23 and 33 ( now units 20, 8 and 24) are screened to prevent overlooking. The rooms in the proposed development, which face these dwellings, are bedrooms generally with highlight windows. To address residents concerns, the applicant has proposed a condition that the other windows to these bedrooms be obscure glass. Due to the separation between these bedrooms and the adjoining houses, this may not be necessary, however, it is agreed between the parties and is included in the conditions of approval. The Court found that there are no windows on the first and second floor western elevation of the proposal that could overlook No. 4 Alexander Street. The ground floor terrace and living room doors of Unit 4 that face No 4 Alexander Street are setback only approximately 1.7 m and 3.4m respectively. A greater setback would be more appropriate, however, they are screened by the fence and existing vegetation and are unlikely to impact on this adjoining property as it is currently developed. In relation to views, the Court found that there will be some loss of views from Nos. 3, 4 and 5 Eastbank Avenue, but overall the views will be maintained and appropriate view sharing is achieved. The proposal is below the 11 metre height limit and is of a bulk and form anticipated by the planning controls. The view loss is also consistent with that anticipated by the planning controls. In relation to parking and traffic, the proposal provides 90 car spaces when the controls require only 79. The parking is therefore more than adequate. The evidence of Mr Hewitt, traffic expert for the applicant, and Mr Hallam, traffic expert for the council, is that the traffic impacts of the proposal are acceptable and would not warrant refusal of the application. Mr Hallam stated that there is an existing problem of drivers wishing to turn right at Eastbank Avenue during peak periods. He recommended that Warringah Traffic Committee should consider the need for a restriction on the right turn movement out of Eastbank Avenue, at least during weekday peak periods. Mr Paton stated that the residents did not favour a restriction in right hand turns. Other changes recommended by Mr Hallam in relation to “no stopping” signs and the garbage arrangements have been incorporated into conditions of approval and amended basement and ground floor plans. The Court found that the proposed development of the Cornerstone site is an appropriate response to its site and its existing context which is consistent with the desired future character of the locality and has an acceptable impact on the amenity of existing residents. The Court found that given that amalgamation of the Cornerstone site and the Koumana site is not feasible and on the premise that redevelopment of the Koumana site is to be encouraged, the question before the Court is not just whether it is an appropriate response to the existing context and maintains existing amenity. It is also a question of whether the development of the Cornerstone site would unreasonable prejudice the redevelopment of the Koumana site by constraining that sites ability to comply with the relevant planning controls, particularly solar access and privacy. The Court found that the envelope provided for the Koumana site indicates that the Cornerstone development would not preclude reasonable development of the Koumana site. An appropriate urban form is achievable that responds to the Cornerstone development and the Cinema and achieves and acceptable level of amenity between the two developments. The Court found that the appeal is upheld. The Court found that the development application for: (a) the demolition of existing structures and construction of two storey dwelling with basement carparking at 1 Eastbank Avenue, Collaroy (Lot 6 Section 24 DP13919; and (b) the demolition of existing structures and construction of a three storey mixed use building with roof terraces comprising retail and commercial at ground floor and first floor and 37 residential units with two levels of basement containing

Orders