Deaton v Pittwater Council - [2007] NSWLEC 876

Land and Environment Court

of New South Wales

CITATION: Deaton v Pittwater Council [2007] NSWLEC 876

PARTIES:
APPLICANT
Rik Deaton
RESPONDENT
Pittwater Council

FILE NUMBER(S): 10913 of 2006, 10914 of 2006 and 10915 of 2006

CORAM: Bly C

KEY ISSUES: Development Application :- Three applications, demolition and subdivision two dwelling houses, views, height, bulk and scale, landscaping, heritage, privacy, character and streetscape.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 71 - Coastal Protection
Pittwater Local Environmental Plan 1993
Pittwater 21 Development Control Plan
Pittwater Development Control Plan 15

DATES OF HEARING: 13/02/2007 and 14/02/2007

EX TEMPORE JUDGMENT DATE: 14 February 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr G. Green, solicitor
of Pike Pike and Fenwick
RESPONDENT
Ms G. Furness, barrister
Instructed by Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

14 February 2007

10913 of 2006 Rik Deaton v Pittwater Council
10914 of 2006
10915 of 2006
JUDGMENT

1 These three appeals involve the following three development applications:

10914 of 2006 relates to Development Application No. 367/06 which is for the demolition of two existing detached dwelling houses at Nos 39 and 40 Ocean Road, Palm Beach and the re-subdivision of the two existing lots comprising Lot 2 DP 23856 and Lot 14 DP 592217 to create two new lots with a frontages to Ocean Road. The new lot comprising No 39 Ocean Road is to have an area of 962 square metres and the new lot comprising No 40 Ocean Road is to have an area of 912 square metres.

10913 of 2006 relates to Development Application No 369/06 which is for the construction of a three level detached dwelling house above a basement car park at No 40 Ocean Road.

10915 of 2006 relates to Development Application No. 368/06 which is for the construction of a three level detached dwelling house above a basement car park at No 39 Ocean Road.

2 The irregular shaped site has a total area of 1974 square metres and has a moderate to steep slope down to Ocean Road. In addition to the two dwelling houses the site contains significant vegetation including a number of canopy trees. It is located immediately opposite Palm Beach across Ocean Road with extensive views of the beach and the Palm Beach headland. Part of the site, on the west side comprises a right of carriageway providing access to properties at the rear.

3 The locality is predominantly developed with detached dwelling houses of one, two, and three storeys. To the west of the site is Horden Park, otherwise the site is surrounded by dwelling houses.

4 The site is zoned Residential A under Pittwater Local Environmental Plan 1993 in which zone the proposals are permissible with development consent. Also applicable to the site is the Pittwater 21 Development Control Plan. Because Horden Park is a heritage item under the LEP Pittwater Development Control Plan 15 Heritage Conservation Areas is also applicable.

5 State Environmental…

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: [2007] NSWLEC 876
Decision Date: 14 February 2007

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Rik Deaton, the applicant, appealed against the decisions of Pittwater Council to refuse three development applications. These applications sought the demolition of two existing houses and the construction of new houses on two lots at 39 and 40 Ocean Road, Palm Beach. The site, totalling 1974 square metres, is steeply sloped towards Ocean Road and is surrounded by residential properties. The primary concerns raised by objectors included loss of views, excessive height and bulk, and non-compliance with planning controls.

The key legal issues before the court involved the compliance of the proposed development with various planning instruments, including the Pittwater Local Environmental Plan 1993, the Pittwater 21 Development Control Plan, and the State Environmental Planning Policy No 71 – Coastal Protection. The applicant argued that the modifications to the proposed development addressed the concerns raised by objectors and complied with the relevant planning controls. The council, however, contended that the development would result in significant adverse impacts, particularly concerning view loss and character of the locality.

The court examined the expert evidence provided by both parties and the modifications made to the proposal during the hearing. It found that the applicant's modifications adequately addressed the objections, and the evidence demonstrated that the development would not result in unreasonable impacts. The court was particularly persuaded by the urban design evidence that the proposal would fit within the character of the locality and comply with the relevant planning controls. The court concluded that the development would not set a precedent for further view loss and would not compromise the character and amenity of the area.

The court granted the appeals and issued conditional development consents for the three applications, with the conditions agreed upon during the hearing.

Orders