Peninsula Development Australia Pty Limited v Pittwater Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Peninsula Developments Australia Pty Ltd v Pittwater Council [2011] NSWLEC 1244

Hearing dates:

18 -19 April and 9 May. 3 and 9 June 2011 (written submissions)

Decision date:

19 August 2011

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

1. The appeal is dismissed.

2. The development application to demolish existing structures and construct an Infill Affordable Housing development at 9 -11 Beaconsfield Street, Newport, is refused.

3. The exhibits, except Exhibit 1, may be returned.

Catchwords:

APPEAL - Development application for Infill Affordable Housing. Amendment to planning instrument, non-discretionary development standards, compatibility with character of local area.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development
Pittwater Local Environmental Plan 1993

Cases Cited:

Blackmore Design Group v North Sydney Council [2001] 118 LGERA 290
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council [1977] HCA 40; (1977) 52 ALJR 20
Carr v Western Australia (2007) 232 CLR 138
Project Venture Developments v Pittwater Council (2005) NSW LEC 191
R v Young (1999) 46 NSWLR 681
Terrace Towers v Sutherland Shire Council [2003] NSWCA 289

Category:

Principal judgment

Parties:

Peninsula Developments Australia Pty Limited (Applicant)

Pittwater Council (Respondent)

Representation:

Counsel
Mr M Staunton, barrister (Applicant)

Mr P Larkin, barrister (Respondent)
Solicitors
Sattler & Associates (Applicant)

Mallesons Stephen Jaques (Respondent)

File Number(s):

10985 of 2010

Judgment

1. This is an appeal against the refusal by Pittwater Council (the council) of a development application (N0594/10) under the Environmental Planning and Assessment Act 1979 (EPA Act) to demolish existing structures and construct an Infill Affordable Housing development at 9 -11 Beaconsfield Street, Newport (the site).

1. The plans before the Court vary from those considered by the council. The main issue between the parties is whether the design of the development is compatible with the character of the local area. Other issues in relation to the impacts of the development on the visual and acoustic privacy and solar access of adjoining properties were generally resolved and would not be reasons to refuse the application.

Site and locality

1. The site is located on the southern side of Beaconsfield Street to the west of its intersection with Barrenjoey Road. It comprises two allotments being lot 29 DP 1093125 (11 Beaconsfield Street) and lot 30 DP 1093125 (9 Beaconsfield Street) and has a combined area of 2892sqm. Each lot is developed with a single dwelling and associated outbuildings and the site contains significant native trees (mainly Turpentines), particularly at its rear. The site falls from the street and north eastern corner to the south western corner with a slope of approximately 13.5%. There are views towards Pittwater from the site.

1. To the west, the site adjoins two detached dwellings (13A and 13 Beaconsfield Street). It also adjoins two detached dwellings to the east (7 and 5B Beaconsfield Street) and residential dwellings…