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[2013] NSWLEC 1065
Land and Environment Court (NSW)
2013-04-11
Original judgment source is linked above.
Judgment 1COMMISSIONER: 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). 2The 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. 3Agreement 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'. 4Clause 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. 5Mr 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. 6The amendments to the proposal are, in summary, as follows:
The site and the proposal 10The 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. 11The 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 12The 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 13Two resident objectors provided evidence on site and two resident objectors provided an email outlining their objections to the proposal (included in Exhibit 1). 14The 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. 15The 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. 16The 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 17The following conditions have been added to the conditions of consent, by agreement, in response to the evidence of the resident objectors:
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 18The 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'
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 April 2013
Thomas
Warringah Council