Deaton v Pittwater Council - [2008] NSWLEC 1370

Land and Environment Court

of New South Wales

CITATION: Deaton v Pittwater Council [2008] NSWLEC 1370

PARTIES:
APPLICANT
Rik Deaton
RESPONDENT
Pittwater Council

FILE NUMBER(S): 10001 of 2008

CORAM: Bly C

KEY ISSUES: Development Application :- for six seniors living dwellings, character, streetscape and design, accessibility, Norfolk Island pine trees, on-street car parking, neighbour and internal amenity.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy (Seniors and People with a Disability) 2004.
State Environmental Planning Policy No. 1 - Development Standards.
State Environmental Planning Policy No. 65 - Design Guidelines for Residential Flat Buildings.
State Environmental Planning Policy No.71 - Coastal Protection.
Pittwater Local Environmental Plan 1993.
Pittwater 21 Development Control Plan.

CASES CITED: GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268

DATES OF HEARING: 20/06/08, 24/06/08 and 5/08/2008

DATE OF JUDGMENT:
17 September 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr G. Green Solicitor
of Pike's Lawyers
RESPONDENT
Mr A. Galasso SC
instructed by Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

17 September 2008

10001 of 2008 Rik Deaton v Pittwater Council

JUDGMENT
Introduction

1 This appeal relates to a development application for a residential development - essentially a residential flat building - comprising six dwellings for seniors living at 39 and 40 Ocean Road, Palm Beach. The dwellings are contained within two, four level buildings (the western Building A and the eastern Building B) above a common basement/podium with a single vehicular access. The basement/podium mainly comprises car parking (24 spaces using mechanical stackers plus one visitor parking space) recreation facilities and two entry foyers - one for each building. It is also proposed to provide a footpath in the road reserve between the site and the nearby bus stop, this footpath being positioned between property boundaries and a row of heritage listed Norfolk Island pines. The two lots are to be consolidated by subdivision.

2 The site comprises Lot 2 DP 23856 and Lot 14 DP 592217 that together have a total area of 1,874 square metres. These lots have a combined angled frontage of about 27 m to the cul-de-sac end of Ocean Road. The site has a fall of about 12 m towards this frontage. It has an expansive outlook to the north over Palm Beach and Barrenjoey Headland.

3 On 23 February 2007, the Court made consent orders enabling the demolition of the then existing detached dwelling houses on the site and approving the erection of two new dwelling houses with a common basement car park. The houses have now been demolished and the basement that is now under construction is to be utilised for the now proposed basement/podium.

4 On 2 January 2008, the appeal was lodged with the Court on the basis of the council's then deemed refusal of the application. On 26 March 2008 a conciliation conference under s 34 of the Land and Environment Court Act 1979 occurred without success.…

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: [2008] NSWLEC 1370
Decision Date: 17 September 2008

CaseChat Overview and Summary

In this case, the applicant, Rik Deaton, sought approval for a development application for six seniors living dwellings at 39 and 40 Ocean Road, Palm Beach. The site was zoned for residential A under the Pittwater Local Environmental Plan 1993 and residential flat buildings were prohibited. However, the State Environmental Planning Policy (Seniors and People with a Disability) 2004 allowed for such developments to meet the needs of seniors or people with a disability. The Pittwater 21 Development Control Plan described the desired future character of the locality as a low-density residential area consisting of one and two-storey dwelling houses in a natural landscaped setting. The applicant proposed two four-level buildings above a common basement/podium with a single vehicular access, a footpath in the road reserve between the site and the nearby bus stop, and consolidation of the two lots by subdivision. The council deemed the application refused and the applicant appealed to the Land and Environment Court.

The court had to decide whether the proposed development was consistent with the character, streetscape and design of the locality, met the accessibility requirements, and did not adversely affect the Norfolk Island pine trees and on-street car parking. The court also had to consider whether the proposed footpath would be out of character with the urban beachfront locality.

The court found that the proposed development was flawed in terms of the extent to which it was overly conspicuous as residential flat buildings, exhibited excessive verticality and more generally an excessive height and bulk. These matters were indicative of a development that should not be approved in this particular locality. The court agreed with the council's expert that the six dwellings would be apparent to an observer as an apartment development or a residential flat building to such an extent as to be unacceptable in the context of the character of the surrounding area. The court found that the proposed development failed to meet the character requirements in the SEPP SL and the objections under SEPP 1 should not be upheld.

The court found that the proposed footpath would be satisfactory and appropriate and taking into account that footpaths are common and appropriate in road reserves, the court would have had no difficulty in imposing a condition consistent with the proposal. The court also found that the proposed footpath would not be so out of character with this urban beachfront locality as to make it unacceptable in the light of aims of SEPP SL to increase the supply and diversity of residences that meet the needs of seniors or people with a disability.

The court dismissed the appeal and refused the development application. The court concluded that the proposed building was not sufficiently responsive to the character of this part of Palm Beach. If the applicant wished to proceed with a seniors living development on the site, in order to achieve a more acceptable outcome it would appear that the development might need to be reduced in height, together with the introduction of greater horizontality and less uniformity into the building forms as they present to Ocean Road and to Palm Beach.

Orders