Mackenzie v Warringah Council - [2002] NSWLEC 131

Land and Environment Court

of New South Wales

CITATION: Mackenzie v Warringah Council [2002] NSWLEC 131

PARTIES:
APPLICANT
Luke James Mackenzie
RESPONDENT
Warringah Council

FILE NUMBER(S): 10760 of 2002

CORAM: Pain J

KEY ISSUES:
Construction and Interpretation :- construction of Warringah Local Environmental Plan 2000 desired future character statement
Development Application :- appeal against refusal - merit considerations

LEGISLATION CITED: Warringah Local Environmental Plan 2000

CASES CITED: Bodyline Spa & Sauna (Sydney) Pty Ltd v South Sydney City Council (1992) 77 LGRA 432 ;
Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 ;
Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190;
Kanne Pty Ltd v Botany Bay City Council [2001] NSWLEC 163 ;
Marchese Partners Architects Pty Ltd v Warringah Council [2002] NSWLEC 31;
Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21

DATES OF HEARING: 9-13/04/2002, 03/06/2002

DATE OF JUDGMENT:
08/08/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr DR Parry (barrister)
SOLICITORS
N/A
RESPONDENT
Mr D Wilson (barrister)
SOLICITORS
Wilshire Webb

JUDGMENT:

IN THE LAND AND Matter No: 10760 of 2002 ENVIRONMENT COURT Coram: Pain J
OF NEW SOUTH WALES Decision Date: 8 August 2002.

LUKE JAMES MACKENZIE

Applicant

WARRINGAH COUNCIL

Respondent

JUDGMENT

INTRODUCTION

1. This is an appeal against the deemed refusal, and then later refusal, of Development Application No. 2001/993DA by Warringah Council (the Council) to demolish four existing dwellings, erect a residential housing development and subdivide the site into five lots, at 42 - 48 Burchmore Road, Manly Vale (the subject site).

2. I record that a view of the subject site, and some adjoining properties, was undertaken on the morning of the second day of the hearing in the company of representatives of both parties.

I also record my appreciation for the advice and assistance of Commissioner Brown in these proceedings. For reasons I have set out in this judgment, I have concluded that the appeal should be upheld and development consent granted subject to the conditions in Annexure A.

THE SITE AND SURROUNDING AREA

3. The subject site consists of four existing lots and has a total area of 3452.5 square metres. It is generally rectangular in shape. The lots are described as lots 21 - 24 in DP6238. The frontage to the west (Burchmore Road) is 49.21 metres, the northern boundary is 67.33 metres, the east or rear boundary is 65.53 metres and the southern boundary 60.35 metres.

4. The subject site falls steeply from the road to the rear, with level differences of approximately 11 metres along the north boundary and approximately 8 metres along the south boundary. There is a 12 metre cross fall diagonally north-west to south-east across the site. The subject site is physically divided into an upper street front area and lower rear area by a significant change in levels. The lower half of the subject site is somewhat overgrown and contains a number of trees. There are four dwelling houses on the subject site (one…

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: [2002] NSWLEC 131
Decision Date: 08/08/2002

CaseChat Overview and Summary

The applicant Luke James Mackenzie appealed against the refusal of Development Application No. 2001/993DA by Warringah Council to demolish four existing dwellings, erect a residential housing development and subdivide the site into five lots, at 42 - 48 Burchmore Road, Manly Vale (the subject site). The applicant sought development consent for the demolition of the four existing dwellings on the subject site, the erection of 4 x 3 bedroom houses on the higher portion of the subject site fronting Burchmore Road with access from that street, the erection of four two storey buildings on the lower rear portion of the site comprising a total of 12 dwellings, a basement car park for the rear residential buildings at the rear comprising 17 resident car spaces and three visitor car spaces, and the Torrens Title subdivision of the subject site into five lots, being one lot for each of the houses fronting Burchmore Road and one lot for the rear residential buildings. The relevant planning instrument is Warringah Local Environmental Plan 2000. Clause 12 of LEP 2000 provides: Before granting consent for development the consent authority must be satisfied that the development is consistent with: any relevant general principles of development control in Part 4, and any relevant State Environmental Planning Policy described in Schedule 5 (State policies). Before granting consent for development, the consent authority must be satisfied that the development will comply with: the relevant requirements made by Parts 2 and 3, and development standards set out in the Locality Statement for the locality in which the development will be carried out. The relevant Locality Statement is Locality G7 - Innes Road. The relevant planning controls for the locality are: (i) cl 18 - How will the built form of the development be controlled?(1) Built form will be controlled in accordance with the general principles of development control, the desired future character of the locality and the development standards set out in the Locality Statement. (ii) cl 20 - Can development be approved if it does not comply with a development standard? (iii) cl 21 - Can land be subdivided? The relevant development standards in the G7 locality plan relate to housing density, building height, rear building setback, the side boundary envelope and side setback and landscaped open space. The relevant general principles of development control in Part 4 are: cl 56 Retaining unique environmental features on sites cl 57 Development on sloping land cl 58 Protection of existing flora cl 62 Access to sunlight cl 63 Landscaped open space cl 64 Private open space cl 66 Building bulk cl 70 Site facilities cl 77 Landfill The relevant general principles of development control in Part 4 are: cl 56 Retaining unique environmental features on sites cl 57 Development on sloping land cl 58 Protection of existing flora cl 62 Access to sunlight cl 63 Landscaped open space cl 64 Private open space cl 66 Building bulk cl 70 Site facilities cl 77 Landfill The Council's submissions were that the proposed development could not fit within the G7 Desired Future Character statement because of the nature of the development and the LEP provisions. The Category 1 development allowed is "housing". The Council argued that as the first sentence of the Desired Future Character distinguishes between "detached housing" and "apartment development", these are the only two categories of "housing" which can exist under the G7 Innes Road Locality. Accordingly, all housing which is not detached must be apartment development. As the four rear residential buildings at the rear of the proposed development are not detached housing and display features of an apartment development, they should be so regarded. Further, the Desired Future Character Statement second sentence states that: The development of further apartment buildings within the locality are to be confined to the medium density areas shown on the map. The Council submits that as the subject site is not within a "medium density area" the proposed development is prohibited. The Applicant argued that the proposed development constitutes housing, as allowed in Category 1 in the G7 locality under LEP 2000. Further, no part of the proposed development could be characterised as apartment buildings for the purposes of the LEP. The Applicant submitted that the definition of "housing" can include a range of housing, including townhouses, and the residential buildings at the rear of the proposed development should be so identified. The Applicant argued it cannot be correct that on the construction of LEP 2000 all housing which is not "detached housing" is "apartment development". The definition of housing, defined in LEP 2000, clearly encompasses townhouse development such as is proposed at the rear of the site. Further the Locality Statement states in the first sentence: The Innes Road locality will remain characterised by a mix of detached housing and apartment development in landscaped settings interspersed by a range of complementary and compatible uses. This suggests that other development contemplated within the definition of housing other than detached housing and apartment development should be allowed in the locality. The sentence contemplates other permissible forms of housing. Townhouse-style development is clearly a complementary and compatible use in this locality. The Applicant also argued in the alternative that apartment buildings were not prohibited on this site. Clause 10 of the LEP provides that development can be identified as being prohibited within a locality statement. Prohibited development in this locality does not include apartment buildings outside the "medium density" areas. Given that cl 12(3)(a) requires only that the desired future character be considered in relation to Category One development, it would be within the planning discretion of the consent authority to determine that in the particular site-specific circumstances of the case, apartment buildings on the subject land could be acceptable at the rear of the site, even if the development is not consistent with the desired future character statement. This is in contrast to Category Two and Three development which must be consistent with the desired future character. To read the sentence in the Locality Statement "The development of further apartment buildings within the locality will be confined to the "medium density" areas shown on the map" as equating to a prohibition, when apartment buildings are not included in the prohibited development category of the land use table is not appropriate in the Applicant's view. The desired future character is for consideration by the consent authority, but is not mandatory under cl 12(3)(a). The applicant was more persuasive on the submissions. The land use table for permissible development in the G7 Locality does not seek to categorise the acceptable form of development beyond the general definition of "housing". The reference to "apartment development" which occurs in the Desired Future Character statement refers specifically to the existing form of development generally found in those areas shown as "medium density" areas. That development generally takes the form of three levels of residential accommodation with a level of parking at ground level. The layout of the proposed rear residential buildings differs from the existing apartment buildings to the east immediately next door, and apartment buildings as understood generally, in that one residence occupies the two floors of the building whereas the residential component of the apartment building is on one floor only. The proposed rear residential buildings are not of the same character. The form, scale and

Orders