CITATION: Tenacity Consulting v Waringah [2004] NSWLEC 140
PARTIES: Tenacity Consulting Pty Ltd Applicant
Warringah Council Respondent
CASE NUMBER: 10996 of 2003
CATCH WORDS: Development Application; Development Standards
LEGISLATION CITED:
CORAM: Roseth SC
DATES OF HEARING: 29/03/2004-31/03/2004
DECISION DATE: 07/04/2004
LEGAL REPRESENTATIVES
Mr A Galasso, barrister instructed by Mr T Sattler of Landerer & Co Mr D Wilson, barrister instructed by Mr S Patterson of Wilshire Webb
JUDGMENT:
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IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
10996 of 2003
Roseth SC
7 April 2004
Tenacity Consulting Pty Ltd
Applicant
v
Warringah Council
Respondent
Judgment
Introduction
This is an appeal against the refusal by Warringah Council (the council) of a development application to demolish the existing building and erect a mixed use building containing ground floor commercial space and 18 apartments over two levels of basement parking for 41 cars on lots 6, 7 and 8 DP 879859, known as 64-68 Pitt Road, North Curl Curl.
The site
The site is on the north side of Pitt Road, near its intersection with Griffin Road and within a small strip of shops. The site area is 1,214m2. It now accommodates three retail buildings.
To the east of the site is a drive-in bottle shop. To the west is a new three-storey commercial-residential development at 70-72 Pitt Road. To the north are three residential properties: 32 Griffin Road, 7 Bellevue Place and 8 Bellevue Place. Opposite the site is a tennis centre. The wider area around contains detached houses of one or two storeys.
The proposal and its history
The applicant proposes to demolish the existing buildings on the site and to erect a new building containing parking for 41 cars, retail area of about 90m2, commercial space of 70m2 and 18 apartments.
The applicant lodged the development application in February 2003. Following notification, the council received 94 individual objections. The applicant amended the application in June and November 2003 and in February 2004. Following notification of the last amendments, the council received objections from 19 properties. In August 2003 the applicant lodged an appeal against deemed refusal. In October 2003 the council refused the application. In November 2004 the council’s Independent Hearing and Assessment Panel considered a planning report from council (presumably relating to an amended proposal) that recommended refusal. The Panel agreed with the recommendation and its chairman submitted a report also recommending refusal.
Relevant legislation, planning instruments and policies
Warringah Local Environmental Plan 2000 (the LEP) zones this site Local Retail Centre. The mixed-use building of retail, commercial and residential is permissible.
Draft amendments to the LEP have been exhibited. Their relevance to the proceedings is that they omit the two-storey height limit, retain the 8.5m control and add a new control of a maximum of 7.2m for the top ceiling line above natural ground level.
State Environmental Planning Policy 65 – Design Quality of Residential Flat Development (SEPP 65) applies to the proposal. It incorporates a publication…
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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AGLC
Tenacity Consulting v Warringah [2004] NSWLEC 140
Case
[2004] NSWLEC 140
Decision Date
CaseChat Overview and Summary
Tenacity Consulting Pty Ltd sought to appeal against the Warringah Council's refusal of a development application to demolish the existing building and erect a mixed-use building on a site at 64-68 Pitt Road, North Curl Curl. The proposed development would include ground floor commercial space and 18 apartments over two levels of basement parking for 41 cars. The site, located in a Local Retail Centre zone, was currently occupied by three retail buildings. The proposal was subject to objections from nearby properties and the council's Independent Hearing and Assessment Panel recommended refusal. The key legal issues were whether the three-storey nature of the proposal was acceptable, the adequacy of the setback from the rear boundary, the impact on the privacy and views of neighbours, and the internal amenity of the apartments.
The court found that while the proposal complied with the 8.5m height limit, it exceeded the two-storey limit allowed by the Warringah Local Environmental Plan 2000. The applicant argued that the land's 9.4% slope qualified it as "significantly sloping", allowing for a three-storey building. However, the court concluded that a slope under 10% is generally considered "moderate" and not "significant". The court also found that the proposal did not meet the general principles of development control for local retail centres, which favour a two-storey height. The court further found that the rear setback of approximately 5m was unreasonably small and did not provide a transition to adjacent residential development as required. The impact on the views and privacy of the neighbouring properties was deemed severe, as the proposal would significantly obstruct the highly valuable ocean and Manly views from the lower three levels of 7 Bellevue Place. The court concluded that the proposal was not consistent with the principles of view sharing and reducing the amenity of adjoining residential land.
The court dismissed the appeal, finding that the three-storey nature of the proposal and the small rear setback created an unacceptable impact on the amenity of the residential properties to the north. The development application was refused and the exhibits were returned.