Guiseppe and Maria Romeo v Pittwater Council

[2011] NSWLEC 1078

Land and Environment Court

New South Wales

Medium Neutral Citation:

Guiseppe and Maria Romeo v Pittwater Council [2011] NSWLEC 1078

Hearing dates:

22, 23 November 2010 and 31 January 2011

Decision date:

05 April 2011

Jurisdiction:

Class 1

Before:

Dixon C

Decision:

1. Appeal dismissed.

2. Application No. N0051/05/S96/2 to modify the development consent granted by the Court on 12 January 2007 in Romeo V Pittwater Council [2007] NSWLEC15 for the demolition of the existing "Pasadena" development and the construction of a shop - top housing development at 1858 Pittwater Road Church Point is refused.

3. The exhibits are returned except F and 2.

Catchwords:

APPEAL - application to modify consent granted by the Court for an existing use - JURISDICTION - substantially the same development

Legislation Cited:

Environmental Planning and Assessment Act 1979
Pittwater Local Environmental Plan 1993
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings
State Environmental Planning Policy No 71 - Coastal Protection
Pittwater 21 Development Control Plan - Amendment 4
Environmental Planning and Assessment Amendment (Existing uses) Regulation 2006
Environmental Planning & Assessment Regulations

Cases Cited:

Moore Development Group Pty Ltd v Pittwater Council (2003) 127LGERA 27
Moto Projects (No2) Pty Ltd V North Sydney [1999] NSWLEC 280
Romeo v Pittwater Council [2006] NSWLEC 645
Romeo v Pittwater Council [2007] NSWLEC 15
Romeo & Anor v Pittwater Council [2008] NSWLEC 1478
Tenacity Consulting Pty Ltd V Warringah Council (2004) 134LGERA 23
Davi Developments Pty Ltd Leichhardt Council [2007] NSWLEC 106
Vacik Pty Ltd v Penrith City Council City Council [1992] NSWLEC 8

Category:

Principal judgment

Parties:

APPLICANT
Guiseppe and Maria Romeo

RESPONDENT
Pittwater Council

Representation:

APPLICANT
Mr C Leggat SC

RESPONDENT
Mr P Larkin
APPLICANT
D C Balog & Associates

RESPONDENT
Mallesons Stephen Jaques

File Number(s):

10536 of 2010

Judgment

Introduction

1. This is an appeal, pursuant to section 96AA (3) of the Environmental Planning and Assessment Act 1979 ("the Act") for modification of the development consent granted by the Court in Romeo v Pittwater Council [2007] NSWLEC 15 ("the Court consent") for land at 1858 Pittwater Road, Church Point.

1. The consent was granted after a determination of permissibility (based on existing use rights) by Lloyd J in: Moore Development Group Pty Ltd v Pittwater Counci l (2003) 127LGERA 27 at [26]; and Romeo v Pittwater Council [2006] NSWLEC 645; per Talbot J at [32] - [33].

1. However, the grant of development consent by the Court did not cause the existing use to cease. By operation of Clause 41(2) of the Environmental Planning and Assessment Regulations and the savings and transitional provision in cl 286D(2)(a)(i) of the Environmental Planning and Assessment Amendment (Existing uses) Regulation 2006 -subject to any limitations contained in its provisions and the Act - the Court consent itself became an existing use.

1. While the applicant relies on the existing use provisions in Div 10 Pt 4 and cl 108(3) of the Act and the Incorporated Provisions of the Regulations it contends, (because the Court consent has not lapsed and the proposed modifications are within the land the subject of the existing use consent) there is power under s96AA of the Act to modify the Court consent.

1. In short the proposed works do not require a further development consent under cl 44 of the Regulations.

1. The council agrees in principle with the applicant's submission but says on the facts that the Court cannot be satisfied under s96AA (1)(a) "... that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all);" or under s96AA (1A) that the development is acceptable after taking "... into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application".

1. I agree with the council's submissions for the reasons sets out below.

Background

1. The land covers five parcels of land and sits on the north-eastern corner of the intersection of Pittwater Road, McCarrs Creek Road and the unformed northern section of Quarter Sessions Road. It is currently occupied by a part 2 / 3 storey bulky and uncharacteristically large building known as the "Pasadena". The building enjoys existing use rights and sits in close proximity to the water's edge of Pittwater.

1. The site inspection confirmed the oral and written evidence that the site is completely surrounded by the public domain and is a prominent and landmark site in the locality.

1. To the north of the site is Church Point Reserve; a grassed and paved public area with outdoors seating. According to the evidence, it is an important congregation area for offshore residents.

1. To the west of the site is Sir Thomas Stephens Reserve, which is a paved public space with outdoors seating and tables in-between the existing "Pasadena" building, the Church Point Post Office, General Store and restaurant building and the Church Point Wharf.

1. Both the Church Point Post Office and Store, as well as the Church Point Wharf are listed as heritage items under Schedule 9 of the Pittwater Local Environmental Plan 1993 (LEP).

1. On 12 January 2007, the Court issued development consent to development application No 550/02 for the demolition of the existing building and the construction of a new 3 storey shop - top housing development comprising basement car parking, a restaurant, 3 shops and 6 residential units subject to the imposition of deferred commencement conditions, including a deferred commencement condition requiring the removal of one of the apartments from the western end of Level 2 (the Court consent - exhibit 9).

1. The planning controls detailed in the agreed facts and contentions at [13] include:

Environmental Planning and Assessment Act 1979 (EPA Act)- Division 10 Part4 of and clause 108(3).

State Environmental Planning Policy No 65- Design Quality of Residential Flat Buildings

State Environmental Planning Policy No 71-Coastal Protection

Pittwater Local Environmental Plan 1993(LEP) - clauses 28, 32(4), 43 and schedule 9.

Pittwater 21 Development Control Plan -Amendment 4 ("the DCP")

Environmental Planning & Assessment Regulations

1. However, the only aspect of the development, which is permissible, is the refreshment room part of the proposal because the consent is for an existing use. Therefore, I accept council's submission that there is not much in the LEP or the DCP of relevance - apart from the toilets issue - because the planning controls derogate from the existing use and under the Act are of no relevance. A comparison of the Court consent and the development as proposed to be modified demonstrates the principal changes are:

the replacement of the acute angled external walls with more traditional vertical and horizontal edges; and,

the replacement of the approved finished materals and reconfiguration of floorplans; and,

the reinstatement of the residential unit at the western side of the upper level (level 2) to create a total of 4 residental units within the development.

1. More detail about the proposed works is found in the amended statement of facts and contentions dated 19 November 2010 which describes the works as follows:

"(a) The addition of one residential unit at the western side of the upper level (Level 2) to create a total of 4 residental units within the development;

(b) Replacement of solid balustrade and parapet surrounds at level 2 with glazed balustrade;

(c) Replacing the angled external walls and raked elevation profiles with more traditional vertical walls at each level with a subsequent change to the external envelope of the building with Ground Level insert, the outer edges of Level 1 slightly cantilevered over Ground Level and Level 2 stepped back from the outer edges of Level1;

(d) The ridge of the development is proposed to be reduced from RL 12.785 to Rl 12.715 with the overrun ridge being reduced from RL 13.1 to Rl12.89;

(e) Deletion of the previously approved (via a previous s96(8) application) outdoor spa to the main bedroom of Apartment 3 on the easern edge of the terrace at level 2;

(f) Reconfigurarion of Basement floorplan including; the deletion of the restaurant and retail waste and recycling area in the north-east corner and its replacement with a smaller area adjacent to the plant room on the south-eastern corner of the Basement; relocate the residential waste/recycling room from adjacent to the plant room in the south-eastern corner to behind the lift and stair; delete the amenities foyer and male (2 toliets,2 urinals) and female toliets (4 toilets) facilites for the ground floor restaurant; delete the retail facilities including 1 male toliet and 1 female toilet; install a bicycle storage bay under access ramp; relocate wash bay; add 4 th storage bay in north-west corner;add additional resident car space in north-west corner; change parking spaces make-up from 9 resident car spaces and a DDA compliant disabled visitor car space to 8 residents car spaces, 2 disabled spaces (with one doubling as wash bay) and 3 visitor car spaces;

(g) Reconfiguration of Ground floorplan including; detail of restaurant bar in foyer removed; reduction of public terrace width on southern side of building from approximately 2m to 1.8m; delete disabled toilet off restaurant foyer; delete plan detail of restaurant kitchen and cool room and reduce kitchen/cool room area by half with no detailed layout plan but notation instead stating "future kitchen subject to separate DA"; other half of former kitchen /cool room area labelled with notation stating "future amenities and storage subject to separate DA".

(h) Reconfiguraion of First Floorplan including;reduction of width of northern terrace from 4.45m to 2.34m with intrusaion of additional internal floor space of living room from Apartments 1 and 2;reconfigure lift/stair foyer with lift exit flipped over;relocate main bedroom ,bathroom and WC for both Apartment 1 and 2; relocate windows to reflect changed floor plan.

(i) Reconfiguration of Second Floor plan including; the addition of Apartment 4 on the western side of the floor over previously approved terrace area;deletion of outdoor spa on eastern terrace of Apartment 3; deletion of outdoor BBQ on northern terrace of Apartment 3; reduction in size of nothern terrace of Apartment 3; reduction in size of nothern terrace of Apartment 3 due to encroachment of additional internal floor area; slight increase in depth of eastern terrace of Apartment 3 and increase in terrace area of south eastern corner due to rounding off of internal floor area at this point; layout of Apartment 4 is mirror of Apartment 3, including rounded corner on south-western corner; relocation of main bedroom and bathroom of Apartment 3; lowering of finished floor level from RL9.5 to RL9.38.

(j) The south-eastern corner of Level 2 of the building has been chamfered in a rounded manner in order to provide a symmetrical match to the proposed new south-western corner of Level 2,which is the corner of the proposed new Apartment 4,also to be chamfered;

(k) The replacement of the approved finished surface materials involving the use of copper louvred cladding windows and balconies ,these louvres are angled at a variable angle in waves across the elevations in a feather-like manner and extending over the entire development with the exceptiion of ground floor windows and doors ) with hardwood timber battens fixed horizontally to the exterior walling, but not windows, with zinc cladding to the Level 2 exterior planning changes. Replacement of timber framed windows and doors with aluminium framed windows and doors.

(l) Reduction of width of awning over pedestrain promenade on southern side of building from approximately 4.5m to 3.2m. Replacement of steel-framed, standing seam copper awnings with slotted ply acousitc lining over the pedestrian promenade on the south side of the building and the covered terrace on the north side of the building, with timber and sheet metal deck awnings.

(m) Reduction in Ground Floor setback to northern boundary of side 1.8m to 1.71m".

1. The jurisdictional issue raised by s96AA (1)(a) is determinative of this appeal.

1. In submitting that the modified development is substantially the same as the Court consent, the applicant relies on Mr Dickson's assessment that the development as modified has the same attributes as that originally approved. In his opinion it is substantially the same development because it will have the same use; the same building footprint, overall length and positioning; it is similar in height, albeit slightly lower and, therefore, has a similar bulk and scale. In his assessment the exterior changes to the building do not result in a radically different development because the "...exterior cladding materials remain in a similar horizontal material expression" and " The horizontal louvres are proposed to be replaced with a horizontal timber batten which has a similar appearance." Mr Dickson describes the exterior changes as "surface details" and the angling of the walls as of a "stylistic nature ". In his opinion the modifications change the appearance but not the substantive content of the application (exhibit B at p26).

1. In applying the tests in Davi Developments Pty Ltd Leichhardt Council [2007] NSWLEC 106 per Talbot J at [57] and Vacik Pty Ltd v Penrith City Council City Council [1992] NSWLEC 8 per Stein J, the applicant submits that the modified development will not radically transform the originally approved development. It submits that "Notwithstanding there may be amendments to 'matters of design, configuration and appearance' which may be significant, such amendments do not change the essence of the development as proposed": Thomas V Pittwater Council [2003] NSWLEC 19 per Lloyd J at [8] and [16].

1. Mr Brooks, the applicant's heritage expert, in the joint report (exhibit 5 at p3) describes the approved development as having " a dramatic architectural character ...one that demands to be noticed and is totally self contained in its regard for the location ." He regards the modified scheme "...as a much "quieter" and more respectful visual outcome that will not compete so strongly with the traditional prominence of the Store/Post Office ."

1. His evidence is not inconsistent with Mr Moore, council's heritage expert's expert opinion that "...a comparison of the approved plans with the proposed modifications will result in...a building of very different appearance, if not function and inclusions. The striking Stutchbury design, with its sloping walls, cladding devices and materials will be lost "(exhibit 4 p6). According to Mr Moore the original design character will be lost by the proposed modifications. His evidence is that the modified development " ... is not the same building, and what will be seen in the context of the property, is a very different built form, of different presentation" (exhibit 4 p6).

1. Mr Moore told the Court that "The Stutchbury design promised an "iconic" design -something of an over-used term but warranted in this instance - equal to its site and setting. In my opinion, it would have been seen as an unusual building placed against the backdrop landscape of treed hills and houses, a "destination building" attracting visitors and users by its nature and appeal. It would he been view visible from all over the southern reaches of the Sound of Pittwater, where not obscured in longer views, by Scotland Island. There cannot be many such buildings in a locality, for competition can lead to the destruction of the whole, overall setting, but one such building, unusual but successful, can be accommodated... [the modified development] would substitute a visually quieter building but in my opinion, one which is urban".

1. Mr Edgar in the joint report (exhibit 8) agrees with Mr Moore's evidence that " the external walls and finishes give the building a unique visual character and therefore these elements are significant to the identity of the building."

1. In submitting that the modified development is not substantially the same as the development originally approved by the Court the council relies on the reasoning in Moto Projects (No 2) Pty Limited v North Sydney Council (1999) 106 LGERA 298 Bignold J at paragraphs [50-70].

1. At para [55] Bignold J states :

" 55.The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially"" the same as the (currently) approved development.

56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).

57. At the level of physical change, the modified development is obviously different by virtue of the elimination of the ramp access from the Warringah Expressway to the Club carpark, with the direct consequence of employing the Walker Street as the sole means of vehicular access to the redevelopment's on-site carparking provision.

58. Qualitatively appreciated, that difference is in respect of material and essential features of the approved development, that materiality involving the importance attributed to the physical features of the approved development sought to be modified.

59. In the present case, the separate ingress for vehicular traffic to the Club was a material and essential physical element of the approved development. It was held to be "important" in my judgment, allowing the appeal and granting the development consent.

60. Its proposed elimination materially changes the approved development."

1. The council submits that the applicant places too much emphasis on numerical and quantitative comparisons of the approved and modified development rather than adopting the Court's reasoning as outlined in Moto. The council submits that the reinstatement of the residential unit on the top level of the development (which was deleted from the original development consent by the deferred commencement conditions) together with the material changes to the external faade of the building result in a development -when qualitatively appreciated - which is materially different in its essential features to the approved development and, therefore; is not substantially the same development as that originally approved. In support of that submission, the council relies on the expert evidence of Mr Moore, and Professor Webber and Mr Edgar whom all agree that the modified development is not substantially the same development as originally approved.

1. The external faade and the deletion of the top-level apartment, based on the evidence, are in the council's submission essential physical elements of the originally approved development. These elements make it distinctive, unique and acceptable on this iconic site without those features on a qualitative assessment the modified development is not substantially the same. The essence of the development has changed.

1. Council also submits in determining this issue it is relevant to have regard to the detailed reasoning of Watts C in his judgement that approved the development. In support of this submission the council relies on the reasoning of Bignold J at para [59] of the Moto judgment where he has regard to what he "...held to be "important" in his judgment, allowing the appeal and granting the development consent".

Findings on s96AA (1)(a)

1. I accept the council's submission that the approved external facade of the development and the elimination of the residential unit on the western side of Level 2 are material elements of the approved design. Furthermore, I accept the evidence of Mr Moore and Mr Edgar and Professor Webber that the elimination of these material elements changes the essence of the design and results in a development which is not substantially the same development as originally approved. I accept Professor Webber's assessment that " the proposed development is completely different in character...although the basic size and volumes are similar, the architectural character has no relationship to that of the approved development. " Based on the evidence, an approval of the modified development would undermine the architectural integrity of the approved development to such an extent that it would be lost. I accept Mr Moore's assessment that the result would be a totally different building " a visually quieter building, one which is urban, closed and as unresponsive to its setting as the Stutchbury design is responsive " (exhibit 4 p6).

1. I accept the evidence of Mr Moore Mr Brooks and Mr Edgar that that the Court consent approved a unique site specific building of "distinctive appearance".

1. I accept that the proposed modifications will result in a building of very different appearance that on the evidence is not substantially the same.

1. In coming to that conclusion it is not necessary for me to decide whether it is appropriate for me to rely on the reasoning of Watt C in his judgment approving the original development because when I compare whether " the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all)," as required by s96AA (1)(a) the modified development is not substantially the same as that originally approved for the reasons outlined earlier.

1. I also reject the applicant's submission that the modifications can be justified as described by Mr Dickson in the joint report (exhibit 8) as changes "... directed at build-ability and practical cost saving ". While these matters were considered relevant on the facts in: Manaldo Pty Limited V Baulkham Hills Shire Council [1995] NSWLEC they cannot be justified on the evidence before me. The applicant does not produce any independent evidence in respect of these issues other then the views of its architect. There is no objective quantification of the cost of the approved works from a quantity surveyor or any independent engineering or building evidence to support a submission that the approved design cannot be built or is impractical to build. Accordingly, I reject this submission as a reason on the facts of this case for an approval of this application for modification.

1. Because I have formed the view, on the evidence, that I do not have jurisdiction to deal with this application because I am not satisfied as required by s96AA (1)(a) "... that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all )" it is not necessary for me to consider the merits of the application under s96AA (1A).

1. However, in the event that I am wrong on the threshold issue raised by s96AA (1)(a) I have considered "... such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application " and based on the evidence reject the application on its merits for the following reasons.

S96AA (1A) assessment

1. Based on the evidence, I accept Mr Moore's opinion that the modified development will lessen the successful contribution of the approved design to the Church Point setting and the modified development will not sit positively beside the old Post Office and Store, which are heritage items. (exhibit 4 p8.) Given the landmark site, and after a consideration of the objections raised by the local residents at the site inspection and in the written submissions (tendered in council's bundle), I accept that it is not in the public interest to approve a modified development, which detracts from the amenity and sense of place.

1. The additional residential apartment on the western side of Level 2 will have an impact on water views from 2195 Pittwater Road opposite the site. I accept the evidence of Mr Edgar in exhibit 7 p9 that the proposal does not provide reasonable view sharing. The northern view corridor over the Pasadena building is the most highly valued view from 2195 Pittwater Road because water views from this dwelling are relatively limited. It is difficult to assess the amount of view loss due to the lack of accurate information before the Court. However, the site inspection and height poles assisted me to understand the evidence of the view impacts of the proposal and confirmed the evidence that the owners of 2195 Pittwater Road have already suffered view loss from their balcony/living areas as a result of the granting of consent to the original approved development. In my assessment it would be unreasonable to impose a further view loss impact on this property having regard to the view sharing principles in Tenacity Consulting Pty Ltd V Warringah Council (2004) 134LGERA 23 at [25] to [29]. I do not accept Dr Lamb 's assessment on p45 of exhibit C that the view loss from 2195 Pittwater Road is minor although I agree that the view impact on 2193 Pittwater Road is less significant. While I accept that there is some low vegetation, which may in time filter the views from these properties and the reserve, its existence does not justify the approval of a built form that will remove water views. The accuracy of the CAD diagrams was the subject of significant dispute during the hearing and Mr Dickson conceded they rely on abstractions and are not entirely realistic representations. He suggested the height poles provided a better impression of the proposed development.

1. I accept the evidence of Professor Webber, Mr Moore and Mr Edgar that the addition of the residential unit on the western end of Level 2 will result in an unacceptable impact on the amenity and scenic quality of the surrounding public domain due to the additional height, bulk and scale. The site is prominent within the locality and is completely surrounded by the public domain.

1. Based on my consideration of the relevant matters in s79C of the Act, as required under S96AA (1A), I find that the modified development is unacceptable on its merits. Accordingly, the Court makes the following Orders:

1. Appeal dismissed.

2. Application No.0051/05/S96/2 to modify the development consent granted by the Court on 12 January 2007 in Romeo v Pittwater Council [2007] NSWLEC 15 for the demolition of the existing "Pasadena" development and the construction of a shop - top housing development at 1858 Pittwater Road Church Point is refused.

3. The exhibits are returned except 2 and F.

Susan Dixon

Commissioner of the Court

Decision last updated: 13 April 2011