Navaroo Constructions Pty Ltd v Palerang Council

[2006] NSWLEC 406

Land and Environment Court

of New South Wales

CITATION:

Mann v Pittwater Council [2006] NSWLEC 406

PARTIES:

APPLICANT
Steven James Mann

RESPONDENT
Pittwater Council

FILE NUMBER(S):

10436 of 2006

CORAM:

Bly C

KEY ISSUES:

Development Application :- Consent orders, dwelling house, stormwater drainage, right-of-way, loss of vegetation, solar access, privacy, building height, setbacks, bulk and scale

LEGISLATION CITED:

State Environmental Planning Policy No. 5
Pittwater Local Environmental Plan 1993
Draft Pittwater 21 Local Environmental Plan
Pittwater 21 Development Control Plan

DATES OF HEARING:

11/10/2006

EX TEMPORE JUDGMENT DATE:

10/11/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr C Shaw, solicitor
SOLICITORS
Shaw Reynolds Lawyers

RESPONDENT
Mr M Causer, solicitor
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

11 October 2006

10436 of 2006 Steven James Mann v Pittwater Council

JUDGMENT

This decision was given extemporaneously

and has been revised and edited prior to publication

1 This appeal relates to development application No. 242/05 which is for the construction of a new multi-level dwelling with five bedrooms, swimming pool and three car garage at 2089B Pittwater Road, Church Point.

2 The site comprises Lot 1 DP 1068977 and has an area of 694 sq m. It is accessed via a right-of-way that traverses 2089 Pittwater Road off Pittwater Road itself. The nearest cross-road is Bakers Road to the north.

3 The site is situated amidst other detached dwelling houses as well as a four dwelling development approved pursuant to State Environmental Planning Policy No. 5 which adjoins the site to the northeast.

4 The site is zoned Residential 2(a) under Pittwater Local Environmental Plan 1993 and in this zone the proposal is permissible with development consent. Other applicable planning controls comprise the Pittwater 21 Development Control Plan and the draft Pittwater 21 Local Environmental Plan.

5 Under the DCP the desired character of the Church Point and Bayview locality in which the site is located is described as primarily low density with one and two storey residences in a natural landscape setting. The DCP also contains a number of relevant standards dealing with landscaping, building height, side and rear setbacks, site coverage and building envelope.

6 The application was notified and six resident submissions were received raising issues associated with stormwater drainage, use of the right of way, loss of vegetation, loss of solar access and privacy for neighbouring properties, building materials, building height and setbacks and envelope, site coverage and excessive bulk and scale. A number of those resident objectors gave evidence when the hearing began on-site particularising the above concerns. Of particular concern was the bulk and scale and height of the proposed building and the non-compliances with the provisions of the DCP.

7 One resident explained how the amended proposal was no longer of concern, the issue involving loss of views having been resolved by certain changes to the design.

8 Following receipt of additional information in relation to the proposal a report was prepared by Mr Grant Walsh, a council town planner, recommending that the application be approved and that conditional consent be granted. Notwithstanding this report, the council’s development unit under delegation from the council decided that the application should be refused for reasons relating to non-compliance with various provisions of the DCP, including matters involving building height, setbacks, envelope, site coverage, visual privacy and desired future character.

9 Those reasons for refusal essentially formed the basis of the Statement of Issues dated 6 July 2006.

10 Following the lodgement of the appeal Mr N Ingham, a consultant town planner became, with the agreement to the parties, the Court-appointed expert.

11 Mr Ingham’s final report dated September 2006 deals with the above issues and, having taken into account a number of amendments to the proposal, concluded that the proposed development (i.e. the proposal now before the Court), warrants approval.

12 On the basis of its further consideration of the matter and particularly taking into account Mr Ingham’s report and having taken into account the continuing resident objections, the council has now agreed to enter into consent orders which provide for the granting of consent subject to a number of conditions, which conditions are agreed to by the applicant.

13 I have now considered the matters of concern to the residents, the report of Mr Walsh and the report of Mr Ingham and have decided that the appeal should be upheld. I am satisfied that the two town planning reports properly cover the matters in issue and I am not aware of any matter that would suggest that the conclusions that they have reached should be overturned. I thus agree with their conclusions for the reasons that they have given in their reports.

14 I do not accept that the matters of concern identified by the resident objectors, in writing and orally whilst on site, are such as to overturn any of the conclusions reached in those reports. I particularly note the residents’ suggestions that the proposal exhibits a number of non-compliances with the provisions of the DCP including numerical non-compliances such as building height and setbacks. However, the DCP contains provisions which allow non-compliances with these standards in certain circumstances. These non-compliances were examined by Mr Ingham and, again, I agree with his reasoning and his conclusions.

15 More particularly, having accepted the evidence of Mr Ingham and Mr Walsh in relation to those standards I have also reached the conclusion that the proposed building is neither inappropriately located nor would it have an excessive bulk and scale.

16 I have therefore decided to make the orders as sought.

1. The appeal is upheld.

2. Development application No. N0242/05 for the erection of a new multi-level dwelling, with swimming pool and garage accommodation for 3 cars, on Lot 1 in Deposited Plan 1068977 being 2089B Pittwater Road, Church Point, is determined by the granting of development consent subject to the conditions of consent annexed and marked ‘A’.

3. Exhibits A, B and 1 are retained.

Note: The parties have agreed that there be no order as to costs.

___________________
T A Bly
Commissioner of the Court
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