Tenacity Consulting Pty Ltd v Warringah Council - [2004] NSWLEC 268

Land and Environment Court

of New South Wales

CITATION: Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 268

PARTIES:
APPLICANT
Tenacity Consulting Pty Ltd
RESPONDENT
Warringah Council

FILE NUMBER(S): 11415 of 2003

CORAM: Hussey C

KEY ISSUES: :- Apartment buildings - consistency with desired future character - compliance with built forms - streetscape impact - internal amenity - public interest

LEGISLATION CITED: Environmental Planning and Assessment Act
Warringah LEP 2000
SEPP 65

CASES CITED:

DATES OF HEARING: 14/04/04-15/04/04

DATE OF JUDGMENT: 05/31/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Robson, barrister
SOLICITOR
Landerer & Company
RESPONDENT
Mr G Newport, barrister
SOLICITOR
Wilshire Webb

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11415 of 2003

Hussey C

31 May 2004

Tenacity Consulting Pty Ltd
Applicant

Warringah Council

Judgment

Introduction
1. This appeal is against councils refusal of a development application for two apartment buildings above basement parking, containing 49 units, in Pacific Parade, Dee Why.
2. For the appeal, the following issues were identified:

consistency with the design future character statement,
compliance with built form controls,
streetscape impacts/overbearing,
internal amenity,
impact on adjoining properties.

The site
3. The subject property is known as 19 – 21 Pacific Parade and 14 Sturdee Parade, Dee Why. It is described as Lots 4, 5 and 27 of Section E in DP 8270. It comprises three similar sized lots forming an "L" shape within the block bounded by Pacific, Sturdee Parade and Pittwater Road. Details of the site are shown in Attachment 1.
4. The site has a frontage of 30.48 m to Pacific Parade and 15.24 m to Sturdee Parade. The total site area is 2048 m2. There is a fall from the southern to the northern boundary of approximately 4 m.
5. The surrounding area is characterised by a mix of detached dwelling houses, residential flat buildings and commercial development. The land adjoining to the southwest forms part of the site containing the Dee Why Hotel. It currently contains a bottle shop and car park.
6. On the eastern side of the site is a childcare centre, which is owned by Warringah Council. This building has its main frontage to Pacific Parade and a rear frontage to Sturdee Parade, which is an open parking area.
7. Further to the east at 31 – 37 Pacific Parade and 24 – 26 Sturdee Parade, an apartment development including buildings up to 7 stories and containing 74 units has recently been completed. Also recently completed is a 41 unit development at 28 – 32 Sturdee Parade, which is designed to be integrated with the aforementioned development and is collectively known as the "IPM" development.
8. On the opposite side of Pacific Parade there is a mix of commercial buildings, residential flat buildings and dwelling houses.
The proposal
9. This proposal involves the demolition of the two existing dwellings on the site and the construction of the following 49 apartments:

- 3-storey apartment building containing 6 units adjacent to Pacific Parade. This building…

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: [2004] NSWLEC 268
Decision Date: 05/31/2004

CaseChat Overview and Summary

Tenacity Consulting Pty Ltd sought to appeal against Warringah Council's refusal of a development application for two apartment buildings above basement parking, containing 49 units, in Pacific Parade, Dee Why. The key issues identified for the appeal included consistency with the desired future character, compliance with built form controls, streetscape impacts, internal amenity, and impact on adjoining properties. The subject property is located within Locality E8 – Sturdee Parade, which is primarily a residential area, with future development comprising new apartment style housing. The proposal involved the demolition of the existing dwellings and the construction of a 3-storey apartment building containing 6 units adjacent to Pacific Parade and a 9-storey apartment building containing 43 units towards the rear of the site. The court considered the planning controls in the Warringah Local Environmental Plan 2000 and the State Environmental Planning Policy number 65 -- Design Quality of Residential Flat Development. The court found that the proposal was consistent with the desired future character for E8 and satisfied the relevant SEPP 65 design principles. The court also noted that the proposal had been subject to a detailed development assessment by council planners, who recommended conditional approval. The court granted the appeal and development consent, subject to conditions in Annexure A.

In summary, the court found that the proposal for two apartment buildings above basement parking, containing 49 units, in Pacific Parade, Dee Why, was consistent with the desired future character for E8 and satisfied the relevant SEPP 65 design principles. The court granted the appeal and development consent, subject to conditions in Annexure A. The court found that the proposal was for a development of good quality and would set a good precedent in terms of implementing the pattern of development advocated in the diagrams accompanying the relevant section of WLEP 2000.

Orders