Incoll Pty Limited v Warringah Council

Land and Environment Court

of New South Wales

CITATION:	Incoll Pty Limited v Warringah Council [2006] NSWLEC 714
PARTIES:	APPLICANT: Incoll Pty Limited RESPONDENT: Warringah Council
FILE NUMBER(S):	10522 of 2006
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Desired future character
LEGISLATION CITED:	Warringah Local Environmental Plan 2000, (WLEP) State Environmental Planning Policy - Seniors Living 2004, (SEPPSL) Environmental Planning and Assessment Act 1979, ss79C and 97
CASES CITED:	GPC No 5 (Wombarra) Pty Limited v Wollongong City Council [2003] NSWLEC 268; Mete v Warringah Council [2004] NSWLEC 273
DATES OF HEARING:	13/11/2006
EX TEMPORE JUDGMENT DATE:	11/13/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr G N McKee, solicitor SOLICITORS: McKees RESPONDENT: Mr S H Patterson, solicitor SOLICITORS: Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

13 November 2006

10522 of 2006 - Incoll Pty Limited v Warringah Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Warringah Council (the council) of a development application to demolish the existing dwellings and to construct an eighty-two (82) bed seniors living ‘residential care facility’, including basement car parking, landscape works and ancillary structures at Lots 46 to 50, DP 7568, Nos 5-13 King Street, Manly Vale.

2 I visited the land in company with the parties on the morning of the first day of the hearing and carefully considered the relationship of the proposal with the desired future character.

3 I have concluded that the consent orders agreed between the parties may issue.

The land

4 The land is situated on the southern side of King Street, about 72 metres west of its intersection with Condamine Street. It comprises five (5) allotments of land and is rectangular in shape with an area of 4,295m2. It has a northern frontage of 60.96m to King Street, an eastern boundary of 70.465m, a southern (rear) boundary of 60.96m, and a western boundary of 70.455m. The land has a gradual fall of about 5.5m and slopes down from the northwestern corner to the southeastern corner. The King Street frontage has a cross fall of about 2.5m down from west to east.

5 Vehicular access to the land is provided via five (5) vehicular crossings on the King Street frontage of the five (5) existing dwelling houses. These dwelling houses are setback back between 7.5m and 19.3m from the street frontage, with an average setback of 9.0m. Ancillary structures are located in the rear of each of the residential allotments and two of the residential allotments (Nos 11 and 13 King Street) have single-storey ‘granny flats’ located at the rear. Some trees are growing at the rear of some of the dwellings and also within the front setback to Nos 9-13 King Street.

6 To the north of the land, on the opposite side of King Street, are a number of single detached dwelling houses varying in height from single-storey to two-storeys. A seniors living multi-unit…