Nikolaidis v Pittwater Council - [2010] NSWLEC 1098

Land and Environment Court

of New South Wales

CITATION: Nikolaidis & Anor v Pittwater Council [2010] NSWLEC 1098

PARTIES:
APPLICANTS
Leon Nikolaidis
Brigitte Nikolaidis
RESPONDENT
Pittwater Council

FILE NUMBER(S): 10473 of 2009

CORAM: Pearson C

KEY ISSUES: DEVELOPMENT APPLICATION :-

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Pittwater Local Environmental Plan 1993
Pittwater 21 Development Control Plan

CASES CITED: Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226
Nikolaidis v Pittwater Council [2007] NSWLEC 678
Nikolaidis v Pittwater Council (2009) 171 LGERA 104
Segal v Waverley Council (2005) 64 NSWLR 177
Zhang v Canterbury City Council (2001) 115 LGERA 373

DATES OF HEARING: 18 March 2010

DATE OF JUDGMENT:
25 May 2010

LEGAL REPRESENTATIVES: APPLICANT
Mr TS Hale SC, barrister
Instructed by Mr P Macarounas
McLachlan Chilton
RESPONDENT
Mr PW Larkin, barrister
Instructed by Ms T Sheahan
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

25 May 2010

10473 of 2009 Leon Nikolaidis and Brigitte Nikolaidis v Pittwater Council
JUDGMENT

1 Commissioner: This is an appeal pursuant to s97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Pittwater Council (the Council) of consent to a development application N0399/08 for alterations and additions to a dwelling at 4 Princes Street Newport, Lot 1 DP 1058241 (the site).

2 The site is located in a strip of houses on the western side of Princes Street and has waterfrontage to the Pittwater waterway. There is a park, Dearin Park, to the south of the strip of houses. The surrounding area is a mix of single dwelling houses and residential flat buildings. The site has a two storey dwelling house approved by Council in 2003 (the 2003 consent).

3 In 2006 the Council refused an application pursuant to s96 of the Act for modification of the 2003 consent by the inclusion of a parapet of 870mm around the top of the building, which has a flat roof. An appeal against that refusal was partially upheld, and approval was granted by Tuor C for the erection of the parapet limited to an area on the north east corner of the building to screen an air conditioning unit: Nikolaidis v Pittwater Council [2007] NSWLEC 678 (the 2007 approval). In these proceedings the applicant seeks approval for the “continuation of raised parapets to eastern elements of roof and part of northern roof”. The Council refused the application on 6 November 2008 and the applicant appealed to the Court.

4 The Council sought an order that the appeal be dismissed on the ground that the appeal is an abuse of process, because the subject matter of the appeal, the continuation of the parapet, was the subject of the previous proceedings heard and determined in 2007. That application was refused by Preston CJ: Nikolaidis v Pittwater Council (2009) 171 LGERA 104.

5 The issues in these proceedings relate to the height and bulk of the building, which the Council contends…

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: [2010] NSWLEC 1098
Decision Date: 25 May 2010

CaseChat Overview and Summary

In the case of Nikolaidis v Pittwater Council, the applicants, Leon Nikolaidis and Brigitte Nikolaidis, sought approval for alterations and additions to their dwelling at 4 Princes Street, Newport. The primary dispute was over the proposed extension of the parapet along the northern and eastern facades of the building, which the Council argued would increase the building's height and bulk, and result in adverse impacts on neighbouring properties. The applicants contended that the proposed parapet extension would enhance the architectural integrity of their building, which currently appeared disjointed.

The court considered several key issues, including whether the proposed development complied with the planning controls set out in the Pittwater 21 Development Control Plan and the Pittwater Local Environmental Plan 1993, and whether the extension of the parapet would be consistent with the desired future character of the locality. The Council argued that the proposed parapet extension would violate side and rear building line controls, and building envelope controls, both intended to minimise the bulk and scale of the built form. Additionally, the Council contended that the development would result in a loss of privacy for neighbouring properties and increase the potential for the roof to be used as an outdoor entertaining area.

The court rejected the applicants' argument that the circumstances had changed since a previous approval in 2007, finding that the proposed development was essentially the same as that previously considered and approved. The court also noted that the proposed parapet extension would still be visible from the driveway and outdoor pool area of a neighbouring property, and would add to the building's bulk and scale, contrary to the outcomes set out in the Development Control Plan. The court concluded that the proposed parapet extension would not achieve the stated architectural integrity aim, and that the increase in bulk and scale outweighed any benefits derived from the extension.

Accordingly, the appeal was dismissed, and the development application was refused. The court's orders included the dismissal of the appeal, the refusal of the development application, and the return of the exhibits, except for exhibits 1 and 6.

Orders