Mete v Warringah Council - [2008] NSWLEC 1383

Land and Environment Court

of New South Wales

CITATION: Mete v Warringah Council [2008] NSWLEC 1383

PARTIES:
APPLICANT
Anthony Mete
RESPONDENT
Warringah Council

FILE NUMBER(S): 10385 of 2008

CORAM: Hussey C

KEY ISSUES: Development Application :- Partial demolition of dwelling and construction of dwelling - amount of demolition, consistency with Desired Future Character, impacts on neighbours.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Warringah Local Environmental Plan 2000

CASES CITED: Edgar Allan Planning Pty Limited v Woollahra Municipal Council [2006] NSWLEC 681
Den Gillespies v Warringah Council [2002} NSWLEC 224

DATES OF HEARING: 28/08/08 and 29/08/08

DATE OF JUDGMENT:
24 September 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr P. Clay, barrister
Instructed by A. Mete of Harbord Lawyers
RESPONDENT
Ms J. Hewitt, solicitor
of HWL Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

24 September 2008

10385 of 2008 Anthony Mete v Warringah Council
JUDGMENT

Background

1 This appeal was lodged against the deemed refusal of a development application for the partial demolition of an existing garage and dwelling to enable building alterations to the dwelling at 33 Wyndora Avenue, Freshwater.

2 The issues identified for the appeal are summarised as follows:

Consistency with the desired future character,
Overdevelopment of the site, excessive height, inadequate setbacks,
Internal amenity,
Public interest, regarding amenity impacts on neighbouring properties.

The site

3 The site is described as Lot 48 DP 5396 and is located on the northern side of Wyndora Ave, to which it has a10.06m frontage. The total area is 404.76 sqm.

4 There is a medium land slope in the order of 5.8m from the rear boundary to the street. Currently there is a single level dwelling located at the rear of the property with a 690mm rear setback. There is level open space area at the front of the dwelling, which connects to the excavated garage at street level.

The proposal

5 The details of the proposal are:

Partial demolition of the garage and construction of a new front stair entry, new storage room with external stairs and lift access to a home office/study on the second floor, and a rumpus room on the third floor.
Excavation and construction of a 5.5m x 2m swimming pool in the front open space area, which separates the study/rumpus room from the main residence.
Partial demolition of the existing dwelling and construction of a new dwelling, comprising 2 storeys with a terrace on the upper storey adjacent to the parents retreat.
Construction of a new front fence.
Landscaping works.

Planning controls

6 Warringah Local Environmental Plan 2000 (LEP). Under this LEP the site is within the F5 Curl Curl Locality and the proposal is a Category One use. The LEP requires consideration to be given to the development standards in the Locality Statement.

7 Clause 18 deals with built form controls, including compliance with the desired future character of the locality and associated development standards. Clause 20 allows discretion for non-complying developments.

8 The desired future character for…

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: [2008] NSWLEC 1383
Decision Date: 24 September 2008

CaseChat Overview and Summary

In Mete v Warringah Council, Anthony Mete appealed the Warringah Council's refusal to grant development consent for his proposed alterations and additions to a dwelling at 33 Wyndora Avenue, Freshwater. The proposed works included partial demolition of an existing garage and dwelling, construction of a new front stair entry, a storage room, a home office/study, and a rumpus room, as well as the construction of a swimming pool and a new dwelling. The primary issues raised in the appeal concerned consistency with the desired future character, overdevelopment, internal amenity, and potential impacts on neighbouring properties. The Land and Environment Court found that the proposal demonstrated reasonable compliance with the relevant planning controls and development standards, albeit with some minor non-compliances.

The Court considered the planning principle set out in Edgar Allan Planning Pty Limited v Woollahra Municipal Council, which states that a development application to alter and add to a building will be taken to be that relating to a new building when more than half of the existing fabric of the building is demolished. The Court found that the proposal was close to the halfway mark for the retention of existing external fabric, and in the circumstances of the subject matter, strict compliance with this principle was not necessary. Instead, the Court considered the issue to be a question of fact and degree in each case. The Court found that the proposal would maintain the established amenity and impact relationship with the neighbours, except for some first floor level bedroom/retreat and terrace impacts, which were addressed through conditions of consent.

The Court also considered the concerns raised by the neighbours regarding the garage, study and rumpus room components, pool area, open space, internal amenity, and the rear terrace. The Court found that the proposal demonstrated reasonable qualitative compliance with the built form controls and development standards, and that the concerns raised by the neighbours could be adequately addressed through conditions of consent. The Court concluded that the proposal merited conditional consent and granted development consent for the proposed works subject to the conditions set out in Annexure A.

The final orders of the Court were: (1) the appeal was upheld; (2) development consent was granted to DA 2008/0363 for partial demolition of the dwelling and garage at 33 Wyndora Avenue, Freshwater to allow building alterations and construction of a pool subject to the conditions in Annexure A; and (3) the exhibits could be returned except for 2, 3.A, B, and C.

Orders