Tenacity Investments Pty Limited v Warringah Council [2006] NSWLEC 650 (13 October 2006)

Last Updated: 12 February 2007

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Tenacity Investments Pty Limited v Warringah Council [2006] NSWLEC 650


PARTIES:
APPLICANT:
Tenacity Investments Pty Limited
RESPONDENT:
Warringah Council


CASE NUMBER: 11212 of 2004


CATCH WORDS: Development Application


LEGISLATION CITED:
Warringah Local Environmental Plan 2000, (WLEP)
Environmental Planning and Assessment Act 1979; ss 79C and 96(6)
Environmental Planning and Assessment Regulations 2000

CORAM: Watts C

DATES OF HEARING: 13/10/2006

DECISION DATE: 13/10/2006


LEGAL REPRESENTATIVES

APPLICANT:
Mr A Sattler, solicitor
SOLICITORS:
Sattler and Associates Pty Limited
RESPONDENT:
Mr S Patterson, solicitor
SOLICITORS:
Wilshire Webb


JUDGMENT:


THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES


Watts C


13 October 2006


11212 of 2004 - Tenacity Investments Pty Limited v Warringah Council


JUDGMENT

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the decision of the Warringah Council (the council) to refuse to modify Development Application No 2004/1055 for shop-top housing at Nos 64-68 Pitt Road, North Curl Curl, being Lot 1 and 2, SP 57776, (No 64 Pitt Road), Lot 7, DP 5963, (No 66 Pitt Road) and Lot 6, DP 5963, (No 68 Pitt Road).
2 I heard from local residents at the on-site hearing when I viewed the premises in company with the parties.
3 I have concluded that since the issues concerning view loss and view sharing have been addressed by the applicant with the amended architectural plans the proposed consent orders are appropriate with some additions to the conditions to address levels and to relate these to Australian Height Datum.

The land
4 The land is situated on the northern side of Pitt Road, about 20m to the west of the intersection of Griffin Road. The land is rectangular in shape, with a frontage to Pitt Road of 30m and an area of about 1,195m2. The subject land is within a small strip of neighbourhood shops between the corner of Pitt and Griffin Roads and North Road, which is an identified "Local Retail Centre".
5 The subject land presently contains three (3) commercial/retail buildings with attached residential units close to the front.
6 A drive-in bottle shop abuts to the east with a driveway access along the common boundary. At Nos 70 - 72 Pitt Road to the west is a modern three-storey commercial/residential building. To the north at No 32 Griffin Road, No 7 Bellevue Place and No 8 Bellevue Place are three residential dwellings. Opposite the land are two detached dwellings and a vacant block, which is a former tennis centre and is approved for detached dwellings.
7 Development Application No 2004/1055 for the demolition of existing buildings and construction of a mixed retail/residential flat building development was lodged with council on 18 August 2004. The Land and Environment Court by Orders No 11212 of 2004, on 1 February 2005, approved this application. A major issue of the appeal related to ‘view sharing’.

Relevant planning controls

Warringah Local Environmental Plan 2000, (WLEP)
8 Under the provisions of the WLEP that land is in the F5 locality and the proposal is permissible with consent.
9 Clause 12 of the WLEP relates to what matters are considered before consent is granted. This clause only applies where development is permissible on the land and consent can be granted.
10 Notwithstanding cl 12 of the WLEP before granting consent the following must be satisfied:
11 Clause 12(1) states that before granting consent for development, the consent authority must be satisfied that the development is consistent with:
· any relevant general principles of development control in Part 4, and,
· any relevant State Environmental Planning Policy described in Schedule 5 (State policies).

12 Clause 12(2) of the WLEP states that before granting consent for development, the consent authority must be satisfied that the development will comply with;
· the relevant requirements made by Parts 2 and 3, and
· development standards for the development set out in the Locality Statement for the Locality in which the development will be carried out.

13 Clause 12(3) of the WLEP only applies where development is permissible and states that before granting consent for development classified as:
(a) Category One, the consent authority must consider the Desired Future Character described in the relevant Locality Statement.

14 Clause 18 of the WLEP relates to how will the built form of development be controlled. This provision requires the built form will be controlled in accordance with the general principles of development control and the desired future character statement set out in the ‘Locality Statement’.
15 Clause 20 of the WLEP relates to whether development can be approved if it does not comply with a development standard. Clause 20(1) of the WLEP states that, notwithstanding Clause 12(2)(b), consent may be granted to proposed development even if the development does not comply with one or more development standards, providing the resulting development is consistent with the general principles of development control, the desired future character and any relevant State Environmental Planning Policy listed under Schedule 5 of the WLEP.
16 The subject land is located within the F5 - Curl Curl Locality under the WLEP. The adjoining locality to the north is the E15 - Wingala Hill Locality, the adjoining locality to the west is the F3 - Brookvale Industrial Locality and the adjoining locality to the south is the H1 - Freshwater Beach Locality.
17 The desired future character within the F5 - Curl Curl Locality is:
The Curl Curl locality will remain characterized by detached style housing in landscaped settings interspersed by existing apartment style housing in landscaped settings interspersed by existing apartment style housing and a range of complementary and compatible uses. The land containing the existing Bowling Club at Lot 2682 DP 752038 on Abbot Road and the land containing the existing Harbord Bowling Club at Lot 4 DP 601758 on Stirgess Avenue will continue to be used only for recreation facilities.
Future development will maintain the visual pattern and predominate scale of detached housing in the locality. The streets are to be characterized by landscaped front gardens and front building setbacks, which are consistent with surrounding development. The exposed natural sandstone rock outcrops throughout the locality will be maintained. Development on prominent hillsides or hilltops must be designed to integrate with the landscape, topography and long distance views of the hill. Unless exemptions are made to the housing density standard in this locality statement, any subdivision of land is to be consistent with the predominate pattern, size and configuration of existing allotments in the locality.
The locality will continue to be served by the existing local retail centres in the areas shown on the map. Future development in these centres will be in accordance with the general principles of development control provided in Clause 39.

18 The proposal is considered by the council to be Category 1 development within the F5 locality, incorporating ‘Housing (not on ground floor)’, ‘Shops’ and ‘Offices’ within a Local Retail Centre.
19 Under cl 39 ‘Local Retail Centres’ in the WLEP, the Built Form Controls do not apply apart from building height for the applicable locality unless the locality statement provides otherwise.
20 In the F5 locality buildings are not to exceed 8.5m to the ridge (measured vertically from natural ground level). The other control for height is 7.2m to the upper ceiling (measured vertically from natural ground level).
21 No variations of the requirements of the WLEP under cl 20 are required for the proposed development.
22 The general principles of development control applicable to this proposal are:
Clause 38 - Glare and reflection;
Clause 39 - Local retail centres;
Clause 42 - Construction sites;
Clause 43 – Noise;
Clause 50 - Safety & security;
Clause 61 – Views;
Clause 62 - Access to sunlight;
Clause 64 - Private open space;
Clause 65 – Privacy;
Clause 66 - Building bulk;
Clause 67 – Roofs;
Clause 68 - Conservation of energy and water;
Clause 69 - Accessibility - public and semi-public buildings;
Clause 70 - Site facilities;
Clause 74 - Provision of carparking;
Clause 75 - Design of carparking areas; and
Clause 76 - Management of stormwater.

23 The schedules of the WLEP that apply to this proposal are Schedule 8 - Site Analysis and Schedule 17 - Carparking Provision.

The original modification application and its history
24 The original modification application in respect of development consent No 2004/1140 under Section 96AA of the Environmental Planning and Assessment Act 1979, was lodged with the respondent council on about 5 December 2005.
25 It was proposed to add new habitable rooms within a redesigned roof form, change a shop to an office, make various changes to the first and second floor plans and various changes to conditions of consent associated with a mixed retail and residential ‘shop top housing’ development.
26 In particular, the original proposal involved:
· an amendment of the roof design;
· an amendment to the ground floor Level 1 to change from a retail shop to a commercial unit, add an exhaust shaft and a skylight to the new office and change the levels within the car park area;
· an amendment to the first floor Level 2 where Unit 1 is provided with internal stairs to a new loft area and Bedroom No. 1 is deleted. Unit 2 is provided with a 3rd bedroom and a skylight is added to the courtyard;
· an amendment to the second floor Level 3, whereby Unit 1 is provided with a loft and the roof form is changed accordingly. Unit 11 has Bedroom No 2 and a bathroom deleted and a new access to a new loft level is added. Unit 12 is provided with an access to a new loft level and a media room is added and Bedroom 2 is deleted;
· a new roof plan to provide for new Bedrooms Nos 2 and 3 and a bathroom for Unit 11. Unit 12 is provided with a loft area, incorporating Bedroom No. 3 and an en-suite;
· an amendment of Condition 19 to change the number of required carparking spaces from 35 to 36 as a result of the change from a shop to an office and selected changes from 2 bedroom to 3 bedroom units. Also, the requirement for certification of line marking by a Civil Engineer is sought to be deleted;
· an amendment of Condition 100 to change the number of required carparking spaces from 35 to 36, associated with the change in commercial floorspace and bedroom sizes.

Notification
27 The original modification application was notified in the Manly Daily on 24 December 2005 under the provisions of the former Development Control Plan No 1 (Feb 2000) and cl 23 of the WLEP. Thirty-eight 38 adjoining and surrounding property owners and occupiers and the council received thirteen (13) submissions, twelve (12) of which raised objections to the proposal and one (1) had no objection.

The council’s decision
28 By notice dated 16 June 2006 the council refused the original modification application for the following reasons:
1) Pursuant to Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979 the proposed development will have an adverse and unreasonable visual impact upon the amenity of the neighbouring property at No. 32 Griffin Road, North Curl Curl.
2) Pursuant to Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979 the proposed development will have an adverse impact upon the availability of district views for the neighbouring property at No. 32 Griffin Road, North Curl Curl.

29 The council’s Independent Hearing and Assessment Panel had considered the original modification application on 24 May 2006 and recommended refusal for the following reasons:
The design of the additional space and roof form is inappropriate and its impact on the view is not considered to be in accordance with the view sharing principles of the Tenacity case or the determination of the court in its previous decision. The Panel does not believe that glare and reflection will be unsatisfactory but agrees with the objector from 32 Griffin Road in terms of visual aesthetics this is an unsatisfactory resolution in its presentation to the windows of that property.

30 The Director of Planning and Assessment Services recommended to the Council Meeting on 13 June 2006:
THAT Council as the consent authority REFUSE development consent to a Section 96 Modification of development consent 2004/1055 granted by the Land and Environment Court 11212 of 2004 to provide habitable rooms within new roof form, change shop to office, associated building amendments and modification to Conditions 19 & 100 on land at Lots 6, 7 & 8 DP 879859, Nos 64-68 Pitt Road, North Curl Curl for the reasons outlined as follows:
1) Pursuant to Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979 the proposed development will have an adverse and unreasonable visual impact upon the amenity of the neighbouring property at No. 32 Griffin Road, North Curl Curl.
2) Pursuant to Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979 the proposed development will have an adverse impact upon the availability of district views for the neighbouring property at No 32 Griffin Road, North Curl Curl.

31 The council adopted the recommendation of the Director, Planning and Assessment Services and the application was determined by way of refusal.

The hearing
32 The appeal in respect of the original modification application was filed on 21 June 2006.
33 Mr M E Neustein, the Court-appointed town-planning expert, made preliminary recommendations that encouraged the applicant to further amend the proposal so as to limit the height of development to that originally approved.
34 Mr S Findlay, Acting Manager - Major Developments prepared the statement of basic facts dated 25 July 2006.

The issues
35 On 25 July 2006 the council filed a statement of issues in respect of the original modification application.
Not substantially the same development
1. The proposed modification should not be approved as it does not satisfy the provisions of Section 96AA(1)(a) of the Environmental Planning and Assessment Act 1979 in that the development as proposed to be modified is not substantially the same as that for which consent was originally granted.
Particulars
a. The proposed modification to the building height, roof form, visual bulk, presentation of elevations and the increase from two storeys to three storeys will result in a development which is not substantially the same development as the development for which consent was originally granted;
b. the proposed modification will result in a detrimental impact on views from 32 Griffin Road which are substantially different to the impact on views from 32 Griffin Road caused by the development for which consent was originally granted; and
c. the proposed increase in the number of storeys from two to three storeys should be the subject of a separate development application which would be subject to the provisions of State Environmental Planning Policy No. 65.

Views
2. The proposed modification should not be approved as it will have a detrimental impact on views and does not allow for the reasonable sharing of views.
Particulars
a. The proposed increase in building height, roof bulk and scale will detrimentally impact on the views from 32 Griffin Road contrary to clauses 12(1)(a) and General Principle 61 of Warringah Local Environmental Plan 2000 ("WLEP 2000").
b. The detrimental impact on the views from 32 Griffin Road is contrary to clause 39 and the Desired Future Character Statement for the F5 Curl Curl locality contained in WLEP 2000.

Submissions Received by Council
3. The proposed modifications should not be approved having regard to the submissions received by Council.

36 The loss of views and view sharing are the salient issues.

Amended modification application
37 Before the hearing commenced the applicant amended the plans to delete the rooms in the roof and to reinstate the originally approved roof profile. This change eliminated the obstruction to views and addressed fully the council’s issues in this appeal.

Consent orders
38 Before the hearing, the parties reached agreement that the appeal in respect of the modification application be decided by way of consent orders.

The evidence and findings

Loss of views and view sharing
39 At the on-site hearing the resident representatives agreed that if the originally approved roof profile were reinstated there would be no objection to the Court making the proposed consent order. These residents accepted that view loss and view sharing issues had been addressed.
40 The parties agreed that the Australian Height Datum, (AHD) levels of floors and roofs be nominated in conditions. Also the parties agreed that the Principal Certifying Authority should inform the council of the surveyed height of floor levels within one week of the slab on that level being poured. Also the parties agreed that the certificate concerning levels be posted on a notice board on the site within one week of the slab on that level being poured.
41 I am now satisfied that I may grant consent to the amended modification application under s 96AA of the Environmental Planning and Assessment Act 1979.
42 For the above reasons, the appeal is upheld by consent.

Conditions
43 The conditions are those in Exhibit 6, attached to the draft consent orders.

Consent orders
44 The consent orders are:
1. The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application to modify the Court granted consent relating to Development Application No 2004/1140 under s 96AA of the Environmental Planning and Assessment Act 1979, proposing a change from a shop to an office, various changes to the first and second floor plans and various changes to conditions of consent associated with a mixed retail and residential ‘shop-top housing’ development at Nos 64-68 Pitt Road, North Curl Curl, being Lot 1 and 2, SP 57776, (No 64 Pitt Road), Lot 7, DP 5963, (No 66 Pitt Road) and Lot 6, DP 5963, (No 68 Pitt Road) is approved subject to Conditions 1 to 106 in Annexure A.

3. The exhibits except for Exhibits A, 2, 4, 5 and 6 are returned.





S J Watts
Commissioner of the Court
sw

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at http://www.lawlink.nsw.gov.au/lec/