Warringah Properties Pty Ltd v Warringah Council - [2004] NSWLEC 393

Land and Environment Court

of New South Wales

CITATION: Warringah Properties Pty Ltd v Warringah Council [2004] NSWLEC 393

PARTIES:
APPLICANT
Warringah Properties Pty Ltd
RESPONDENT
Warringah Council

FILE NUMBER(S): 10137 of 2004

CORAM: Hoffman C

KEY ISSUES: Development Application :- Erection of 12 dwellings for aged and/or disabled with strata subdivision - future character of precinct - access to community facilities and services - privacy - shadows - bulk - scale - views

LEGISLATION CITED: Warringah Local Environmental Plan 2000
Environmental Planning and Assessment Act 1979

CASES CITED: Mete and Warringah, Talbot J [2004] NSWLEC 273

DATES OF HEARING: 28/06/2004

DATE OF JUDGMENT: 06/30/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Doyle, solicitor
RESPONDENT
Mr J Johnson, barrister
SOLICITORS
P J Donellan & Company

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

30 June 2004

10137 of 2004 Warringah Properties Pty Ltd v Warringah Council
JUDGMENT

1 This was a class one appeal 10137 of 2004 between Warringah Properties Pty Limited and Warringah Council in regard to a deemed refusal of an application lodged on 6 June 2003 for twelve dwellings with strata subdivision under cl 29 of Warringah Local Environmental Plan 2000.

2 The site was three existing lots fronting two roads, they were No. 603 Pittwater Road and No. 2a and 4 Moorilla Street, Dee Why. Numbers 2a and 4 were battleaxe lots with their access drives one each side of No. 2, which was an existing two storey house. The second storey of No. 2 was being built at the time of the hearing. The main parts of the allotments of No.s 2a and 4 were north of No. 2 on the top of a knoll. The three existing houses on the subject site were to be demolished.

3 The house on No. 603 having burnt down recently was already gone. The rear boundary of No. 603 abutted No. 2a so the subject site formed an L shape having a total area of 2831 sq m.

4 The proposed units were designed with all vehicle access off Moorilla Street via the access handle of No. 4 to a basement carpark for twelve cars, two of which were for disabled drivers. There was a lift serving all floors.

5 There were eight units on the two upper floors above the basement. There was a pedestrian pathway from the street along the access handle of No. 2a, and the entry lobby of the proposal and the pathway was suitable for disabled persons. The other four units in the development stepped down the hill on No. 603. They were in two blocks, two storeys high with courtyards between them. Each block had two units one above the other. They were partly excavated into the hillside on the uphill end such that at the uphill end they were only about one and a half storeys high.

6 Horizontal access walkways linked the main block on top of the knoll with the other two buildings utilising a lower…

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 393
Decision Date: 06/30/2004

CaseChat Overview and Summary

Warringah Properties Pty Ltd, the applicant, sought approval from Warringah Council to develop a site into twelve dwellings with a strata subdivision. The proposal included the erection of three blocks of units for aged and/or disabled individuals, and was challenged by the council and several local residents. The Land and Environment Court was tasked with determining whether the application complied with relevant planning laws and policies, particularly concerning the future character of the precinct, access to community facilities, privacy, shadows, bulk, scale, and views.

The key issues revolved around whether the proposed development complied with the Warringah Local Environmental Plan 2000, particularly clauses 29, 12, and 40, and the State Environmental Planning Policies (Seniors Living). Specifically, the court needed to assess whether the proposal met the requirements for adequate access to support services, compliance with frontage width standards, height restrictions in the rear portion of the site, and whether State Environmental Planning Policy No. 1 could be applied to overcome non-compliance with the Seniors Living Policy.

The court examined the proposal's design, which featured buildings set back from the street, with landscaped areas and mature trees to maintain the existing streetscape. The development included a basement carpark and lifts for accessibility. The applicant had undertaken to address concerns regarding access to public transport and community services by agreeing to build suitable footpaths and kerb ramps. The court considered expert reports on environmental effects, disabled persons' access, and traffic, as well as objections from local residents concerning overshadowing, privacy, and noise.

After hearing evidence and submissions, the court concluded that the proposal complied with the Warringah Local Environmental Plan 2000 and did not fall under the Seniors Living Policy. The design of the proposal, which featured apartment buildings consistent with the future character of the area, was deemed acceptable. The court found that the concerns raised by local residents, such as overshadowing and privacy, were reasonable and could be mitigated through the proposed conditions. The court ultimately decided that the proposal should be approved, subject to the conditions outlined in the judgment.

Orders