Thomas v Warringah Council

[2013] NSWLEC 1065

Land and Environment Court

New South Wales

Medium Neutral Citation:

Thomas v Warringah Council [2013] NSWLEC 1065

Hearing dates:

11 April 2013

Decision date:

19 April 2013

Jurisdiction:

Class 1

Before:

O'Neill C

Decision:

1. The appeal is upheld.

2. Development Application No. 2012/1411 for the demolition of existing structures and construction of a new dwelling house and pool at 14 Gardere Ave, Curl Curl is approved, subject to the conditions in Annexure 'A'.

3. The exhibits, other than exhibits 2 and A, are returned.

Catchwords:

DEVELOPMENT APPLICATION - new dwelling and pool, resident objectors

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Cases Cited:

Futurespace Pty Ltd v Ku-ring-gai [2009] NSWLEC 153

Category:

Principal judgment

Parties:

Mr Stuart Thomas (Applicant)
Warringah Council (Respondent)

Representation:

Mr N Eastman (Applicant)
Mr S Patterson (Respondent)
Gadens Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

10041 of 2013

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 2012/1411 (the proposal) by Warringah Council (the Council) for a new dwelling and pool, at 14 Gardere Ave, Curl Curl (the site).

1. The appeal was subject to mandatory conciliation on 11 April 2013, in accordance with the provisions of s34AA of the Land and Environment Court Act 1979.

1. Agreement was reached between the parties during the conciliation conference on the basis of amendments made to the proposal following the joint conferencing of the planning experts. The parties agree that the proposal is substantially unchanged by the amendments, however Council requested that the conciliation conference be adjourned to allow for objectors to be notified of the amended proposal, in accordance with clause A.7 of the Warringah Development Control Plan (WDCP), on the basis that the amendments made to the proposal are not 'minor'.

1. Clause A.7 of WDCP includes the following regarding the notification of amended development applications:

Notification of amended development applications where the development is substantially unchanged

Amended or substituted applications will be notified / advertised in the same manner as the original application and to each person who made a submission to the original application.

· Amended or substituted applications will be notified / advertised in the same manner as the original application and to each person who made a submission to the original application.

· If a development application is amended or substituted, and

· Council has notified/advertised the original application, and

· Council is of the opinion that the amended or substituted application differs only in minor respects from the original application, and does not result in a greater environmental impact,

· Council may decide to dispense with further notification/advertising in relation to the amended or substituted application at the discretion of the officer responsible for the management of development assessment. Amended or substituted applications that require notification/advertising will be notified and advertised in the same manner as the original application and to each person who made a submission to the development application.

1. Mr Eastman submits that the amendments are minor in the context of clause A.7 of WDCP, however he agrees with the Council that the amendments are not minor in the context of s 97B of the Environmental Planning and Assessment Act 1979 (EPA Act) (Futurespace Pty Ltd v Ku-ring-gai [2009] NSWLEC 153: at [42]). He submits that the amendments are minor in the context of clause A.7 of WDCP because the amendments reduce the size of the footprint and the height of the proposal, in response to Council's contentions and objections raised by the neighbours. Mr Eastman further submits that the Court, pursuant to s 39(2) of the Land and Environment Court Act 1979 (the Court Act), can readily exercise the discretion permitted by clause A.7 of the WDCP and decide not to renotify the proposal.

1. The amendments to the proposal are, in summary, as follows:

• The side setback (from Tanderra Place) has been increased from 1.15m to 2m and the soft landscaping within the setback has been increased;
• Windows and external timber louvres have been added to the blade wall of the southern elevation at Ground Level;
• The setback of the eastern elevation, from the Gardere Ave front boundary, has been increased from 6.5m to 8.5m, to match the setback of the existing dwelling;
• Garage Level: the bin storage has been relocated to the rear of the garage;
• Lower Ground Level: the pool has been reorientated from north - south, to east - west and positioned adjacent to the shared boundary with 16 Gardere Ave;
• Ground Level: the increase to the side setback from Tanderra Place has resulted in a minor adjustment of the internal planning at the rear of the dwelling and the wall along the shared boundary with 16 Gardere Ave has been deleted;
• Level 1: the width of the master bedroom pavilion has been reduced by 0.675m and the height of the parapet roof has been reduced from RL32.9 to 32.75 (0.25m). The internal planning of the master bedroom suite has been adjusted.
• The applicant confirmed that the only trafficable roof area is the terrace on the eastern side of the main bedroom (Level 1) and the remaining roof areas will only be accessed for maintenance.
• The applicant confirmed that the existing stone wall at the rear of the shared boundary with 16 Gardere Ave will be retained.

1. I agree with Mr Eastman that the amendments proposed are minor when considered in the context of clause A.7 of WDCP, because the proposal has been modified to increase its front and side setbacks and slightly reduce its overall height. The proposal differs only in minor respects from the original application and does not result in a greater environmental impact. In my view, it is appropriate to dispense with notification of the amended proposal for the following reasons:

• The WDCP provides unqualified discretion for the consent authority to decide not to renotify objectors.
• The planning experts made the amendments to the proposal during joint conferencing, in response to Council's contentions regarding the bulk of the building, inadequate landscaping within the front and side setbacks and the impacts on views from neighbouring properties.
• The plans were explained in detail, on site, during the conciliation conference to the two neighbours to the north of the site and a third observer, with reference to existing heights of retaining walls, the existing dwelling and the neighbour's dwelling. Both neighbours were satisfied that the amendments made to the proposal substantially address their concerns.
• Council's planning expert, Mr Keller, is satisfied that the issues have been resolved by the amendments made to the proposal.
• I am satisfied that the amendments made to the proposal and the conditions of consent address the issues raised by the objectors directly affected by the proposal.

1. As Mr Patterson did not have instructions from the Council to enter into a s34AA agreement, the conciliation conference was terminated pursuant to s34AA(2)(b) of the Court Act and the proceedings dealt with as a hearing held forthwith, pursuant to s34AA(2)(b)(i). The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.

1. The Council did not oppose the granting of leave for the applicant to rely on the amended plans and leave was granted by the Court on the basis agreed by the parties, pursuant to s 97B(2) of the EPA Act.

The site and the proposal

1. The site is located on the north-western corner of Tanderra Place and Gardere Avenue, Curl Curl. The site falls to the east, towards Curl Curl Beach and to the south and overlooks the ocean to the east. The site contains an existing dwelling constructed during the 1950s. 16 Gardere Ave is to the north of the site, also facing east and overlooking the ocean and 28 Gardere Ave is to the west of the site, facing north. Part of the eastern side boundary of 28 Gardere Ave forms the rear boundary of the site. 28 Gardere Ave is situated further up the hill from the site and has district and ocean views to the south-east, over the existing roof of the site.

1. The proposal is to demolish the existing dwelling and construct a new dwelling and pool. The proposal consists of a garage level accessed from Gardere Ave, at the eastern end of the site; a media room and swimming pool on the lower ground level over the garage; a main living level on the ground floor consisting of two pavilions separated by a garden courtyard and connected on the southern side by a circulation corridor, entered from Tanderra Place and a main bedroom suite over the rear pavilion, setback on all sides from the level below.

Planning Framework

1. The site is zoned R2 Low Density Residential pursuant to Warringah Local Environment Plan 2011 (LEP 2011) and the proposal is permissible with consent.

Public submissions

1. Two resident objectors provided evidence on site and two resident objectors provided an email outlining their objections to the proposal (included in Exhibit 1).

1. The two resident objectors agreed, following an explanation of the proposal by the applicant's planning expert, assisted by the architect, that their concerns have been largely addressed by the increased setback of the eastern elevation to match the setback of the existing dwelling and by re-orientating the pool east - west, adjacent to the shared boundary with 16 Gardere Ave. They were both satisfied with the explanation that the only trafficable roof area is the terrace to the east of the main bedroom and that the rest of the roof area is non-trafficable and that the louvres to the northern and western elevations of Level 1 are to be fixed in a position that prevents overlooking of adjoining properties.

1. The resident objector and owner of 16 Gardere Ave to the north of the site, requested a dilapidation report be prepared by the applicant to document the condition of his dwelling prior to construction of the proposal. Mr Patterson showed him condition 16 of the conditions of consent requiring a dilapidation survey of the two adjoining neighbours and the resident objector was satisfied with this condition.

1. The resident objectors and owners of 28 Gardere Ave, to the west of the site, were unable to attend the site inspection and asked one of the resident objectors to relay their request that the height of the vegetation along the rear, western boundary be limited, in order to preserve their views to the south-east. The applicant agrees to a condition to limit the height of the vegetation along the rear boundary.

Conditions of Consent

1. The following conditions have been added to the conditions of consent, by agreement, in response to the evidence of the resident objectors:

• The proposed swimming pool is to be relocated parallel to the northern boundary and setback a minimum of 3.5m from the eastern boundary and 7m from the southern boundary (condition 2);
• Any trees, shrubs or screen plantings on the site, used for landscape planting, are to be maintained with a maximum height of 5.0 metres or less above natural ground level in order to minimise coastal view impacts from dwellings overlooking the site (condition 35);
• The fixed external louvres on the northern and western elevations of the Level 1 master bedroom are to be angled to avoid overlooking of the private open space of adjoining properties (condition 17A);
• A 1.65m high privacy screen, 1.5m long with horizontal louvres is to be provided to the northern side of the main bedroom terrace (condition 17B).

Conclusion

In considering LEP 2011, WDCP and the amended plans and documents and agreed conditions of consent (Annexure A) and taking into consideration the issues raised by the objectors, I am satisfied that there is no reason why consent should not be granted to the amended plans.

Orders

1. The orders of the Court are:

1.   The appeal is upheld.

2.   Development Application No. 2012/1411 for the demolition of existing structures and construction of a new dwelling house and pool at 14 Gardere Ave, Curl Curl is approved, subject to the conditions in Annexure 'A'.

3.   The exhibits, other than exhibits 2 and A, are returned.

Susan O'Neill

Commissioner of the Court

Annexure 'A'

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Decision last updated: 19 April 2013