Mouawad Constructions v Warringah Shire Council

[2007] NSWLEC 645

Land and Environment Court

of New South Wales

CITATION:	Mouawad Constructions v Warringah Shire Council [2007] NSWLEC 645
PARTIES:	Applicant: P Mouawad Constructions Pty Ltd Respondent: Warringah Shire Council
FILE NUMBER(S):	10470 of 2007
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- view impact
DATES OF HEARING:	03/10/2007
DATE OF JUDGMENT:	9 October 2007
LEGAL REPRESENTATIVES:	Applicant: Mr D Wilson, barrister Mr K Webber, solicitor of Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

9 October 2007

10470 of 2007 P Mouawad Constructions Pty Ltd v Warringah Shire Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Warringah Shire Council (the council) of a development application to demolish the existing buildings on lot 100 DP 561021, known as 1244 Pittwater Road, Narrabeen and erect a part commercial part residential building.

2 On 23 July 2007 a s34 conference was held on site, at which I was the conciliator. The parties did not reach agreement and did not agree to my disposing of the case on that occasion. My report of the outcome of the conference identified the following matters being in contention:

· The building is too high. The height is 10.8m as against a maximum permissible height of 8.5m.

· The consequence of the additional height is view loss for unit 304/18 Ocean Street.

· The proposed building does not comply with the desired future character statement for Locality D1. this is also a function of its height.

· The applicant has not provided an assessment of the solar performance of the apartments. (The applicant estimates that 60% of apartments receive 2 hours of sunlight in their living areas; the council relies on the 70% rule of thumb in the Residential Flat Design Code.

3 Following the conference the applicant modified the design. The council’s planning expert, Ms Amy Webb, and the applicant’s expert, Mr Laurie Winnacott, met and agreed that the amended design met all of council’s concerns. The parties requested that I determine the matter. An on-site hearing was held on 3 October 2007, during which the Court heard the complaints of two objectors. Mr William McAndrew, who lives at unit 104, 18 Ocean Street, said that he was concerned about possible noise from the new development. The noise would come through a glass privacy screen from the nearest balcony in the proposed building. The concern arises from the fact that the existing building, which is to be demolished, presents a blank wall to the McAndrews’ balcony, so that now there is no noise from that direction. There appears to be nothing unusual in the proposed design that would suggest that the noise would be any more than what occurs normally in an apartment building. This objection does not justify the refusal of the application.

4 The second objector was Mrs Alison Monin, who lives at unit 304, 18 Ocean Street. The view impact on the Monins’ apartment was the main reason for the council’s refusal and the main matter in contention during the s34 conference in July 2007. The view impact has been reduced; however, some impact remains. Most of the remaining impact is to the views from the secondary terrace and the bedroom, both of which obtain their views across a side boundary. Views across side boundaries are vulnerable and more difficult to protect than views across front and rear boundaries. Ms Webb considers that, on balance, the view impact is now reasonable. I understand fully that Mrs Monin is unhappy about losing any views she currently has. I note that there are numerous rooms and two balconies in the Monins’ apartment with views, so that it would be difficult to preserve them all exactly as they are now. I agree with Ms Webb that the modified design of the proposal strikes a balance between the reasonable aspirations of the applicant and respect for the views from unit 304.

5 While the council did not give authority for consent orders, there was no expert evidence in favour of refusal or modification. In the circumstances there is no impediment to the appeal being upheld.

Orders

1 The appeal is upheld.

2 Development application to demolish the existing buildings on lot 100 DP 561021, known as 1244 Pittwater Road, Narrabeen and erect a part commercial part residential building is determined by the grant of consent subject to the conditions in Annexure A.

3 The exhibits are retained.

___________________
Dr John Roseth
Senior Commissioner