Russo Family Trust v Warringah Council

[2004] NSWLEC 763

Land and Environment Court

of New South Wales

CITATION:	Russo Family Trust v Warringah Council [2004] NSWLEC 763
PARTIES:	APPLICANT Russo Family Trust RESPONDENT Warringah Council
FILE NUMBER(S):	10705 of 2003
CORAM:	Tuor C.
KEY ISSUES:	Development Application :- demolition of part of an existing mixed residential/commercial development and alterations and additions Setback No of Storeys View loss Access to rights of way.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Tenacity Consulting v Warringah Council [2004] NSWLEC 140
DATES OF HEARING:	23/03/2004 and 8/04/2004
EX TEMPORE JUDGMENT DATE :	04/08/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr J. Cole, solicitor of Abbott Tout RESPONDENT Mr S. Pattison, solicitor of Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

8 April 2004

10705 of 2003 Russo Family Trust v Warringah Council

JUDGMENT

1 This is an appeal against the refusal by Warringah Council (the council) of a Development Application (2002/0644) at No. 18-19 The Strand, Dee Why (the site). The application is for demolition of part of an existing mixed residential/commercial development and the carrying out of major additions and alterations to create a shop-top housing development, including retention of the existing restaurant and café, 10 residential units and basement parking for 26 cars.

2 As a result of the expert conferences, amended plans were prepared which council considered satisfactorily addressed its issues. Mr S Finlay, town planner for the council, prepared an assessment report of the amended proposal, which recommended approval of the application. A statement of evidence by Mr J Vesco, town planner for the applicant, was also provided to the Court. On the basis of the amended plans the parties have agreed to seek consent orders from the Court.

3 The amended plans were notified and 6 objections were received. The Court had the opportunity of a view and heard from the following objectors:

• Mr G Geshos, 16 The Strand, Dee Why;
• Ms J Taylor, 1/110 Howard Avenue, Dee Why;
• Mr C Ramos, 12 The Strand, Dee Why; and
• Mr Suttling, 11/105 Howard Avenue, Dee Why.

4 Mr Geshos owns the adjoining property to the South. His main concern is whether the proposal would impact on the future redevelopment of his site. In particular he was concerned about privacy impacts from the light wells and the setback of the top floor. He was not concerned about overlooking of his property from these areas but rather that redevelopment of his property may be constrained by having to ensure that acceptable privacy of these areas was maintained. The experts, in consultation with Mr Geshos, drafted a condition which deleted the top floor balcony areas and required screening of the light wells in the event of redevelopment of this property.

5 A further submission was made on behalf of Mr Geshos by Mr R Fleming, town planner. This raised the additional concern of ensuring that access to Mr Geshos’s property from the right of way was maintained during construction. This was also addressed by amendments to the conditions, and satisfied Mr Geshos’s concerns.

6 The concern of Ms Taylor was the proposal being built to the street alignment at the corner of The Strand and Howard Avenue. In her opinion this was inappropriate due to the proximity of a bus stop and the crowding on the corner that this generated; she was also concerned about the additional bulk on the corner and the impact this had on views from the street, and from her unit, of the pine trees and the sky.

7 Mr Ramos was also concerned about the setback of the development from the corner of The Strand and Howard Avenue and the projection of the development over and under the right of way. He considered that access to his property from the right of way would be restricted during construction and that structures such as air-conditioning units would be suspended from the overhang, which had occurred on a nearby property. This was unsightly and would, in his opinion, also restrict access.

8 In relation to the lack of setback of the building from the corner that was raised by Mr Ramos and Ms Taylor, I accept the experts’ opinions that this is consistent with the planning controls that require the corner to be emphasised by development being built to the street alignment for a distance of 20 m to a height of three storeys. The form of the building is therefore consistent with that envisaged by the planning controls, and the impacts that result from being built to the street alignment are acceptable.

9 In relation to the right of way, the access requirements have been dealt with by conditions. The height of the overhang over the right of way is 5.8 m where the standard requires 4.5 m. The overhang is set back from Howard Avenue about 11 m. I accept the experts’ evidence that this does not add significantly to the bulk of the building and does not impact on the streetscape.

10 In relation to structures being suspended from the overhang a condition has been added to deal with this. I note that Mr Ramos has no confidence in matters being dealt with by conditions. However, provided the conditions are reasonable and capable of being satisfied, they are the appropriate mechanism to deal with the issues he has raised.

11 Mr Sutling was concerned about view loss from his unit. His understanding of the view loss was that his views to Long Reef and those of the ocean would be lost by the development. He understood that the development did not reach the current height control but he considered that the proposal did not satisfy the control on the number of storeys as the loft was effectively another half floor.

12 In relation to view loss from Mr Sutling’s apartment (unit 11), the experts prepared an agreed statement, which concluded the primary view from unit 11 was an ocean view in an easterly direction, and that the proposed development would reduce this view by approximately 40%. The experts considered the view towards Long Reef to be a secondary view and agreed that this would be lost by the development. The experts also agreed that the principal impact on view is attributable to the eastward projection of the building towards The Strand, which results from an LEP requirement. They concluded that general principle No 61 was satisfied as appropriate view sharing from unit 11 is achieved.

13 The experts also assessed the view sharing against the principles enunciated by Senior Commissioner Roseth in the judgment Tenacity Consulting v Warringah Council 2004 NSWLEC 140. They concluded that the proposal was consistent with these principles as approximately 60% of the primary view towards the ocean was being maintained and that the view loss was reasonable and was not a result of non-compliance with planning controls.

14 The building is below the maximum height limit, and although the maximum number of storeys is four instead of three, these are contained within the envelope that is permissible for the site. I accept Mr Finlay’s opinion that a variation pursuant to cl 20 of LEP 2000 to the maximum number of storeys is supported as the resultant form of development is considered to be generally satisfactory. It is consistent with the desired future character statement, the general principles of development control, the streetscape, and the beach/parkland/commercial/ residential interface.

15 The residents’ concerns have adequately been addressed in council’s consideration of the application and I therefore agree to the consent orders sought by the applicant and the council.

1. The appeal is upheld.
2. Development Application No 2002/0644 for the partial demolition of an existing three-storey shop-top housing development and the carrying out of substantial alterations and additions to create a four-storey shop-top housing development comprising one floor of commercial floor space is approved, subject to the conditions contained in Annexure ‘A’.
3. The exhibits, with the exception of exhibits B and 3, are returned.

___________________

Annelise Tuor
Commissioner of the Court
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