Edwards v Pittwater Council

[2006] NSWLEC 75

Land and Environment Court

of New South Wales

CITATION:

Edwards v Pittwater Council [2006] NSWLEC 75

PARTIES:

APPLICANT
David and Leigh Edwards

RESPONDENT
Pittwater Council

FILE NUMBER(S):

11102 of 2005

CORAM:

Murrell C

KEY ISSUES:

Development Consent :- s97 appeal on conditions, retention of trees and landscaping, colours, impact on environment.

LEGISLATION CITED:

Environmental Planning and Assessment Act
Pittwater Local Environmental Plan

DATES OF HEARING:

12/01/2006

 
DATE OF JUDGMENT: 

02/23/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr B Hones, solicitor
SOLICITORS
Hones Lawyers

RESPONDENT
Mr M Causer, solicitor
With Ms N Deal, solicitor
Of: Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

23 February 2006

11102 of 2005 David and Leigh Edwards v
Pittwater Council
JUDGMENT

1 This extempore judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act against Pittwater Council’s decision on the conditions attached to the property known as 95 Marine Parade, North Avalon. The proceedings are by way of an on-site hearing that concluded with this judgment.

2 The conditions in dispute relate to the removal of Casuarina (She Oaks) in the front setback area of the subject property and the colour proposed by the applicant for the dwelling.

3 The Court has had the benefit of the Pittwater Local Environmental Plan that was tendered to the Court previously and the Development Control Plan for Pittwater that contains a character statement or desired future character description for the area. There are a number of controls within the Development Control Plan and the LEP and the proposal as assessed by council’s development officer and in his assessment report indicate that there is no objection to the built form of the dwelling and there is only a slight exceedance in terms of the building height plane at one portion of the building. The built form would appear to be appropriate or satisfactory in terms of council’s controls and council’s assessment.

4 The only issues for the Court to determine are with respect to the ‘She Oaks’ and the stand that they represent in terms of the streetscape and also their importance in terms of the ecology of the area. It would appear that ‘She Oaks’ are indigenous and while there may be some structural faults as individual specimens, to the area their significance contribution is in terms of the streetscape and ecology as a stand ‘She Oaks’. The Court has had the benefit of council’s landscape architect, and also an arborist and the applicant’s landscape architect.

5 It is noted that 4 and 5 on the landscape plan are required to be removed for the driveway and trees numbered Casuarinas 2 and 3 are to be retained in the total concept of the landscape plan. The Court in its consideration and with the benefit of expert advice has decided that the trees numbered 6, 7 and 8 can be removed. However, the significant trees of 11 and 12 together with 10 provide a stand which also with the canopy of No. 9 that is to be retained also touches those whilst it will appear more as an individual tree. It is considered in the circumstances this provides a balance in terms of the need to conserve native vegetation and the aspirations of the applicants establishing a garden and providing the necessary space. However, the other Casuarinas may be removed that is 6, 7 and 8 as the retention of 2, 3, 9, 10, 11 and 12 together and individually are more worthy of retention.

6 It is also agreed that there be five ‘coastal banksias’, Integrefloria planted on the property 3 in the front yard and 2 on the ocean cliff side. The applicant and parties also agreed for a suitable canopy tree in the front yard and the street tree issue is also one that the parties are to decide on in terms of the suitable species having regard to the overhead power lines.

7 The Court has had the benefit of inspecting the site from the ocean side of the property where the property drops steeply over a cliff face to the water and rockshelf and there is also a public reserve to the north which will have some views of the property although not prominent views of the subject property.

8 The next issue that the Court has to consider is the contested colours and the Court has had regard to the council’s Development Control Plan in terms of colours harmonizing with the natural environment and having regard to beach locations although this is a Cliff top location and the views from the public domain areas are limited to those from the reserve.

9 In the Court’s assessment the colour for the roof as ‘colorbond dune’ is not contradictory but consistent with the outcomes or the objective of the DCP in terms of a colour that will harmonize with the natural environment. The upper storey level is the third level shown on the plan, although it is not at any one point a three storey building, is to be of that same colour tone and the bottom two floors of the dwelling house will be in the colour known as ‘dulux dune 400%’ which is a darker tone than the roof and the upper storey level. This combination of colour tones for the subject dwelling is in my assessment consistent with council’s objectives and future character statement.

10 Apart from the issues of trees and colour the council has assessed the application as worthy of approval I agree with the officers assessment. On the basis of my assessment here today on site the formal orders of the Court are:

1. The appeal in respect of the property known 95 Marine Parade, North Avalon, is upheld.

2. The development application submitted to Pittwater Council is determined by the granting of consent subject to the conditions contained in Annexure “A”. .

3. The exhibits except for: the architectural plan; the amended landscape plan; and the conditions are returned to the parties.
___________________
J S Murrell
Commissioner of the Court
Rjs/ljr