Tenacity Consulting Pty Ltd v Warringah Council

LEGISLATION CITED: Warringah Local Environmental Plan 2000

DATES OF HEARING: 31/01/2005 and 1/02/2005 EX TEMPORE JUDGMENT DATE : 02/01/2005

APPLICANT Mr A Galasso, barrister SOLICITORS Slatter and Associates LEGAL REPRESENTATIVES: RESPONDENT Mr D Wilson, barrister SOLICITORS Wilshire Webb

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11212 of 2004 Tenacity Consulting Pty Ltd v Warringah Council

JUDGMENT 1 This is an appeal against a deemed refusal by Warringah Council of a development application to demolish the existing buildings and erect a mixed use building containing ground floor retail space and fourteen apartments over parking for thirty-six cars on Lots 6, 7 and 8 DP 879859 known as 64-68 Pitt Road, North Curl Curl. The site 2 The site is on the north side of Pitt Road at its intersection with Griffin Road and within a small strip of shops. The site area is 1214 sq m. It now accommodates three retail buildings. To the east of the site is a drive-in bottle shop, to the west is a more recent 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 3 The applicant proposes to demolish the existing buildings on the site and to erect a new building containing parking for thirty-six cars, a retail area of about 240 sq m and fourteen apartments.

4 The applicant lodged the development application in August 2004. Following notification, the council received fourteen objections. In December 2004 the applicant lodged an appeal against deemed refusal. Relevant planning controls 5 The Warringah Local Environmental Plan 2000 zones the site local retail centre. The mixed use building of retail and residential is permissible with consent in the zone. State Environmental Planning Policy 65 Design of Quality of Residential Flat Development which applies to the proposal incorporates the publication titled Design Code for Residential Flat Development. The council raised no issue arising out of SEPP 65.

6 The council submitted a statement of issues containing six issues, however, following discussion between the planning experts, Ms Deborah Laidlaw and Mr Neil Ingham, and modifications of the drawings by the applicant, only one issue remained. This concerned the proposal's impact on the windows on the boundary of two apartments of the adjoining building 70-72 Pitt Road. One of the original issues was the view impact on 7 Bellevue Place and despite the expert's agreement, the owner of that property still had objections to the proposal.

On behalf of the Stewarts who own 7 Bellevue Place, Mrs Danielle Stewart gave evidence to the Court on the site inspection. She expressed concern about the lift overrun as in her opinion it draws one's eye and would interrupt the view line to the water. She accepts there would be a loss of views from the lower levels of their premises. 7 The height of the building in the current application before the Court is one level lower than the previous development application that was refused. And in response to the expert planners recommendations the applicant has agreed to a further amendment to reduce the height of the roof and lower the lift tower. The issue now is whether the lift overrun is an unreasonable intrusion on the views enjoyed by No 7. Mr Ingham and Ms Laidlaw provided a joint statement to the Court and they agree that the amended proposal is satisfactory. We agree with the experts that the height of the lift overrun is acceptable. In our assessment the development as now proposed provides for reasonable view sharing.

8 The site inspection was informative in that the Court, the Stewarts and the parties had the opportunity of witnessing the extent of the view loss with the benefit of height poles. This was further depicted on the photographs that were tendered to the Court as shown in the attachment showing the impact on the views from the upper level of 7 Bellevue Place, from both a sitting and standing position, on the deck and in the living room. These demonstrate that while the lift overrun protrudes above the roofline of the proposed building, the foreshore/land interface will still be visible from the upper level of the Stewarts' property, including part of the vegetated dunes.

9 We now turn to the impact on 70-72 Pitt Road. The Court heard from two objectors. The first was the daughter of the owners of unit 2. The concern of unit 2 is that three of its windows - to the toilet, to the bathroom and to the laundry - will lose natural light because the proposal at that point will have a solid wall on the boundary. The Court agrees this will involve a loss of amenity, but one that is unavoidable, arising out of the building on 70-72 having windows on the boundary.

10 The Court notes that the conditions of the development consent for Nos. 70 - 72 required, among other things, mechanical ventilation to the above three service rooms and that, the building appears not to have complied with the condition because there was no evidence of mechanical ventilation.

11 The second objector was Ms Norma Gill of unit 5. Her concern was that the walls of the proposal would be too close to the boundary. The Court notes that the distance of the proposal from the boundary at the point at which Ms Gill was concerned is exactly the same as the setback of 70-72 itself from the boundary. In the circumstances, while there would be a loss of amenity to unit 5, that loss of amenity could be avoided only at the cost of unreasonably reducing the reasonable development expectations for the subject site. 12 The Court heard the evidence of Mr Tom Sakiris, a building regulations consultant, who was retained by the applicant, and Mr Rodney Piggott, who is the development assessment officer with the council. The following facts emerged from the evidence.

13 The development consent issued for 70-72 Pitt Road contained Condition 32, requiring that the windows/doors in the eastern external walls be protected in accordance with the provisions of Pt C(3) of the Building Code of Australia, details being required to be submitted with the building application. It also contained Condition 38 to the effect that the bathroom, laundry and water closet compartments of units 2 and 4 are to be provided with a mechanical ventilation exhaust system. Details were to be submitted to council and approval was to be obtained prior to release of building approval.

14 The windows of the rooms mentioned in these two conditions do not comply with Pt C(3) of the Building Code of Australia. The reason is that, while they have external sprinklers, the windows are openable and the Building Code of Australia requires the windows to be fixed. The service rooms of Unit 2 rooms do not comply with Condition 38 because they do not contain mechanical ventilation.

15 The council has the power to issue an order requiring the owners of 70-72 Pitt Road to comply with condition 32, i.e. it could require the windows on the wall on the boundary to be protected in accordance with the provisions of Pt C(3) of the Building Code of Australia. If the order were issued, then at the very least the windows would have to be fixed though the Building Code of Australia allows other ways of dealing with it. 16 The Environmental Planning and Assessment Regulations 2000 require sprinklers to be certified annually to ensure they are functioning correctly. The owners of 70-72 have been providing annual certification but, if the windows on the previously mentioned rooms become fixed, it is likely that that certification could be carried out only through access on the applicant's land. The applicant is not willing to allow this access. It would be open to the owners of 70-72 Pitt Road to seek legal access through the Courts.

17 The parties agreed that as long as the portion of the western wall on the proposal is constructed in type A construction, the impact this would have on 70-72 Pitt Road would not justify the refusal of this application. The dispute between the parties remains only in relation to a paragraph which the council wishes to add to the condition that requires the type A construction. The paragraph the council wishes to add is: In this regard an alternative solution addressing the relevant performance requirements of the BCA for 70-72 Pitt Road shall be submitted to and approved by council or the principal certifying authority prior to the issue of the construction certificate. 18 The applicant does not agree to the inclusion of this paragraph. The Court accepts the applicant's position for the following reason. The applicant has already provided an exhibit to the Court demonstrating that there is an alternative way to service the sprinkler system of 70-72 Pitt Road. That evidence came to the Court as Exhibit K and it is open to the council to use the information in it in its negotiations with the owners of 70-72 Pitt Road.

19 The second reason is that the Court accepts the evidence of Mr Sakiris that, once a wall of type A construction is constructed on the boundary of the applicant's land, the sprinkler system will not be necessary to satisfy the requirements of the BCA. Even if that was not the case, in the Court's opinion a condition requiring the applicant to provide an alternative solution for another property is not a reasonable condition to impose, as it does not properly relate to the application.

20 The only remaining condition in dispute was that concerning the hours during which construction work can be carried out on the subject land. The dispute was in relation to Saturday afternoons. The Court heard the evidence of Mr Nej that the prohibition of construction work on Saturday afternoons was a standard council condition imposed on all applications. Given that that is what everybody else is required to do, the Court finds it reasonable that the applicant should comply. The council's proposed condition is imposed.

21 The agreed conditions include one for the trees to be planted in the rear of the subject property, such that they grow to a maximum height of 6 m. The applicant is prepared to replace the 'coastal banksias' shown on the landscape plan with 'coastal tea trees'. Mrs Stewart was satisfied with this outcome.

22 The formal orders of the Court are: 1. The appeal in respect of the property known as 64-68 Pitt Road, North Curl Curl is upheld.

2. The development application submitted to Warringah Council, as amended, for a mixed-use development containing: 14 residential units; parking; and ground floor retail space, is approved subject to a deferred commencement and the conditions contained in Annexure 'A'.

      Dr J Roseth J S Murrell
      Senior Commissioner Commissioner of the Court
      rjs/ljr

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08/03/2005 - The words "applicant accepts" appeared by mistake instead of the words "Court accepts". - Paragraph(s) 19 09/03/2005 - The words "applicant accepts" appeared by mistake instead of the words "Court accepts". - Paragraph(s) 19

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