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Project Venture Developments v Pittwater Council

Project Venture Developments v Pittwater Council

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Case Copied 22 April 2005 11 min read

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Land and Environment Court

of New South Wales

CITATION:
Project Venture Developments v Pittwater Council [2005] NSWLEC 191

PARTIES:
Applicant:
Project Ventures Developments Pty Ltd
Respondent:
Pittwater Council

FILE NUMBER(S):
11209 of 2004

CORAM:
Roseth SC

KEY ISSUES:
Development Application - Existing Use Rights :- Planning principle: compatiblity with context

DATES OF HEARING: 04/04/2005

DATE OF JUDGMENT:

04/22/2005

LEGAL REPRESENTATIVES:
Applicant:
Mr I Pickles, barrister
Respondent:
Mr G Newport, barrister

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

22 April 2005

11209 of 2004 Project Venture Developments Pty Ltd v Pittwater Council

JUDGMENT
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. The conditions are not reproduced as part of this decision but are available for inspection at the Council. A copy the Court’s Orders and conditions may be obtained from the Court’s registry on payment of a fee. For details of the fee payable and process for obtaining a copy of the Orders and conditions see the Court’s web site at

1 Senior Commissioner: This is an appeal against the refusal by Pittwater Council (the council) of a development application to demolish the existing buildings and erect a three-storey residential flat building on lot 55 DP 263210, known as 6 Foley Street, Mona Vale.

2 The site is on the southern side of Foley Street, between Mona Vale Road and Vineyard Street. It is irregular, with a 70m frontage to Foley Street, and is now occupied by a car repair shop. On the opposite side of Foley Street is a RSL Club. The area to the south and east is detached housing.

3 The following properties share a boundary with the site: 2, 4, 6, 6A and 8 Brinawa Street, 76 and 78 Vineyard Street, and 4 Foley Street. These are one and two-storey houses, apart from 6 and 6A Brinawa Street, which is an attached dual occupancy.

4 Local Environmental Plan 1993 zones the land and the surrounding area Residential 2(a). The Dual Occupancy Control designates the area as Area 3. On the surrounding sites therefore, single houses and dual occupancies are permissible, while residential flat buildings are prohibited.

5 It was common ground that the proposal had existing use rights, so the zoning controls do not apply.

6 The applicant proposes to demolish the existing buildings on the site and erect a three-storey residential flat building containing 17 apartments with basement parking for 39 car spaces.

7 The applicant submitted the application in January 2004. Following notification, the council received 14 submissions. The applicant submitted amended plans in July 2004. These were advertised and attracted 31 submissions. In August 2004 the council’s Development Unit accepted a planning report recommending refusal. The applicant lodged the appeal in October 2004.

8 The council submitted a Statement of Issues containing six issues, of which four had been resolved before the hearing. The two remaining…

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: [2005] NSWLEC 191
Decision Date: 04/22/2005

CaseChat Overview and Summary

Project Venture Developments Pty Ltd appealed against the Pittwater Council's refusal of their development application to demolish the existing buildings on a site at 6 Foley Street, Mona Vale, and construct a three-storey residential flat building. The key issue before the Land and Environment Court was whether the scale and density of the proposed development was appropriate in its context. The Court heard evidence from objectors who expressed concerns about the impact of the proposal on their properties, including traffic, privacy, and overlooking. However, the Court dismissed these concerns as the council did not identify them as issues and the council's engineer raised no objection to the proposal on traffic grounds. The Court appointed a planning expert, Mr R Chambers, who found that the impact on neighbours was acceptable, and the surrounding residents would see the proposal from their properties, but the extent of disturbance by overlooking or noise would remain within acceptable limits. The Court concluded that the proposal was compatible with its surroundings and granted the development application subject to detailed conditions.

The Court applied the planning principle of compatibility in the urban environment to assess the proposal's visual compatibility with its context. The Court noted that compatibility is different from sameness and that buildings can exist together in harmony without having the same density, scale, or appearance. The Court found that the proposal's physical impacts on surrounding development were acceptable, and the proposal's appearance in harmony with the buildings around it and the character of the street. The Court noted that Foley Street did not have an established height, setback, or landscape character, and the most prominent building was the RSL Club. The Court found that the maximum height of the proposed building did not exceed the permissible height in the adjoining residential area. The Court concluded that most observers would not find the proposed building offensive, jarring, or unsympathetic to this section of Foley Street.

The Court granted the development application subject to the conditions in Annexure A. The exhibits were returned except Exhibits 7 and A. The Court's Orders and conditions may be obtained from the Court's registry on payment of a fee. For details of the fee payable and process for obtaining a copy of the Orders and conditions, see the Court's website.

Orders