Pole Home Centre and Lidbury Summers and Whiteman v Great Lakes Council

[2009] NSWLEC 1016

Land and Environment Court

of New South Wales

CITATION:	Pole Home Centre and Lidbury Summers & Whiteman v Great Lakes Council [2009] NSWLEC 1016 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	Applicant: The Pole Home Centre Pty Ltd (Appeal No 10571 of 2008) Lidbury Summers & Whiteman (Appeal No 10863 of 2008) Respondent: Great Lakes Council
FILE NUMBER(S):	10571; 10863 of 2008
CORAM:	Roseth SC
KEY ISSUES:	DEVELOPMENT APPLICATION :- consent orders
DATES OF HEARING:	19 January 2009
EX TEMPORE JUDGMENT DATE:	19 January 2009
LEGAL REPRESENTATIVES:	Applicant: Mr S Kondilios, solicitor of Maddocks Respondent: Mr P Rees, solicitor of Mallik Rees

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

19 January 2009

10571 of 2008 Poll Home Centre v Great Lakes Council
10863 of 2008 Lidbury Summers Whiteman v Great Lakes Council

JUDGMENT

1 Senior Commissioner: These are appeals against the refusal by Great Lakes Council (the council) of two development applications. Appeal No 10571 of 2008 is against the refusal of an application to demolish the existing house on lot 18 DP 732419, known as 23 Belbourie Crescent, Boomerang Beach, and to erect three dwellings (two attached and one detached) on it. Appeal No 10863 of 2008 is an appeal against the refusal of an application to subdivide lot 18 into two allotments.

2 The parties have reached agreement and seek consent orders from the Court. Ten objectors have made written representations, of whom three gave oral evidence at the on-site hearing. They were:

· Mr R Swinton of 24 Belbourie Crescent;

· Mr A Affleck of unit 34 in Moby’s retreat; and

· Mr R Whittaker of 5 Moonah Street.

3 The objectors raised the following concerns:

· The site has high ecological value and should have only one house on it.

· The proposal breaches the height restriction in the DCP.

· There is no on-site visitor parking where the controls require one.

· There is too much excavation.

· The FSR is too high.

· The proposal will overshadow properties to the south, being units 34, 35 and 59 in Moby’s retreat.

· The proposal will overlook properties to the south.

4 The council’s planner, Mr D Pirie, disagrees that these objections justify refusal. In respect of the ecological value of the site, the council’s senior environmental officer (who was not present at the hearing but whose report was available) believes that the main issue is the preservation of significant trees. The proposal preserves three of the four significant trees on the site.

5 The council’s controls allow houses to be up to three storeys. One of the three houses is three-storeys, the others are two storeys. However, the middle house exceeds the height limit over a section of the area. The proposed ridgeline is 0.5m higher than the existing. Mr Pirie believes that, with the retention of the landscaping, this is reasonable.

6 As regards visitor parking, the site is steep and it would be difficult to provide space for visitors to park on the site. Visitors will have to park along the kerb. This is a solution the Mr Pirie finds acceptable.

7 I turn to the excavation. There is no control that would identify the maximum permissible amount of excavation. The amount is made necessary by the lowering of the floor levels, so that as the height of the development is lowered, the excavation is increased. According to Mr Pirie, the excavation could be reduced only if one of the dwellings were deleted. He does not think that the the magnitude of the problem justifies this solution.

8 The Floor Space Ratio (FSR) of the duplex site is 0.5:1; the FSR of the total development is 0.4:1. No FSR control applies to this area. Without such control it seems unreasonable to refuse the application on the ground of excessive FSR when its density is not unusual in other areas.

9 The overshadowing of lots 34 and 35 (and to a lesser extent of 59) appears to me to be the most significant negative feature of the proposal. Lot 34 will have its access to sunlight reduced; however the part of the development that causes the overshadowing complies with the height limit and is set back 3.4m from the common boundary, rather than 900mm, which is the minimum setback required.

10 As regards overlooking, privacy screens and obscure glass ensure that there will not be overlooking to the south.

11 I take into account that the proposal now submitted to the Court is a result of months of negotiations between the parties. According to Mr Pirie and his council, it is now a reasonable proposal. I note that the objectors are still unsatisfied. However, in order for the Court to refuse consent orders, the proposal would have to be offensive, which is not the case here. In general the public interest is best served by respecting the outcome that satisfies both parties in the proceedings.

Consent orders
Appeal No 10571 of 2008

1. The appeal is upheld.

2. Development consent is granted to Development Application 13/2008 for the demolition of the existing building and the construction of three dwellings on lot 18 DP 732419, known as 23 Belbourie Crescent, Boomerang Beach, subject to the conditions in Annexure A.

3. Exhibits 1 and A are retained.

Appeal No 10863 of 2008

1. The appeal is upheld.

2. Development consent is granted to Development Application 760/2008 for the subdivision of lot 18 DP 732419, known as 23 Belbourie Crescent, Boomerang Beach to create two allotments for residential use, subject to the conditions in Annexure A.

3. Exhibits 2 and B are retained.

_______________________
Dr John Roseth
Senior Commissioner

22/01/2009 - typo - Paragraph(s) cover