Warringah Properties Pty Ltd v Warringah Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

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 lift lobby underneath the basement level. At the Pittwater Road end of the walkway was another lift in another upper level lobby. Down at the ground floor below that point there was another street entry lobby that gave access via a pathway suited to disabled persons to an elevated laneway above Pittwater Road.

7 There was no vehicular access onto the site from Pittwater Road. The laneway ran beside Pittwater Road down to the north and the first intersection was May Road. There was a roundabout and a pedestrian refuge on May Road, and once crossed, one was at the start of the Dee Why shopping centre, although the shops such as supermarkets et cetera were still some distance away further downhill. The evidence was however that bus stops, going both north towards Palm Beach and south towards the City, were within the specified distance under cl 29 of the Warringah Local Environmental Plan 2000 from the site boundary on the Pittwater Road frontage.

8 A council approved townhouse development in Exhibit L was to occupy the next couple of allotments north and west of the subject land. It also fronted both Moorilla Street and the elevated laneway on Pittwater Road. Under its consent a footpath and laneway widening was to occur that would suit older people and people with a disability, down to May Road where the existing council footpath commenced. The widening was needed for vehicle access to that development from the lane.

9 The applicant undertook in Exhibit N that the subject proposal would not be occupied before that footpath was constructed. The applicant also undertook to build suitable kerb ramps at May Road and Sturdee Parade to facilitate access to the bus stops.

10 Updated building plans were tendered at the hearing without objection in Exhibit A, landscape plans were in Exhibit B. There was in Exhibit D a minor amendment to the access path at the laneway on Pittwater Road to locate a garden bed between the on site pathway and the lane. A footpath from the on site path would connect with the new public footpath to May Road.

11 It was notable that the building was set back 30 to 33 m from the Pittwater Road boundary and mature trees in the front setback back were to be retained. This was said to retain the existing streetscape where the site was located. It was on a crest of Pittwater Road and the crest formed a gateway between Brookvale and Dee Why. On the east was the Stoney Range Flora and Fauna Reserve. Although some houses on the west side of Pittwater Road were built with little front setback, the trees of others created a vegetated look on both sides of Pittwater Road at that point, adding to the "gateway" effect.

12 The proposal was also set back some 42 m from Moorilla Street with a separation distance of some 22 m between the house on No. 2 Moorilla Street and the main building of the proposal. 13 The issues were: (1) Compliance with Support Services Pursuant to s 79(c)(1)(a)(i) of the Environmental Planning and Assessment Act 1979 , cl 12(1)(a) and cl 40 of the Warringah Local Environmental Plan 2000 . Clause 40 standard - adequate access to: shops, banks, retail and commercial services, community services and recreational facilities, practice of a general medical practitioner. Proposed development - Bus transport is available within 400 m of the site, however it is considered accessing the bus stop is unreasonable for older people and people with a disability. This is because it is considered the access route is circuitous internally from the top of the subject site (Unit 3) to the Pittwater Road boundary. Whether there is adequate access to support services. (2) Compliance with State Environmental and Planning Policies Seniors Living cl 38(3) Pursuant to s 79(c)(1)(a)(i) of the Environmental Planning and Assessment Act 1979 and the State Environmental Planning Policies (Seniors Living) Standard:cl. 38(3) site frontage at least 20 m wide at the building line. Proposal: frontage = 14.46 m (Pittwater Road frontage). Whether the proposal complies with cl 38(3) as the frontage is 5.35 m short of the required width. (3) Compliance with State Environmental Planning Policies Seniors Living cl.38(4)(c) Pursuant to s 79(c)(1)(a)(i) of the Environmental Planning and Assessment Act 1979 and State Environmental Planning Polices (Seniors Living) .

Standard: cl. 38(4)(c) - a building located in the rear 25% area of the site must not exceed 1 storey in height. Proposal: 2 storey. Whether the proposal complies with cl. 38(4)(c) as the Moorilla Street building is 2 storeys in height. (4) Whether State Environmental Planning Policy No.1 is available and if it is whether its application is made out to overcome the non compliance with State Environmental Policies (Seniors Living) 2004 . 14 The attendance at the on site hearing was for the applicant: o Justin Doyle, solicitor, o Tony Chen Chow, architect, o Barry Doyle director of the applicant company o Corina Doyle unit holder of the applicant company. 15 For the respondent was: o James Johnson barrister instructed by o Patrick Donnellan solicitor of P J Donnellan and Company of Gosford. o Alex Babij of No.601 Pittwater Road, o Joe Mete of No. 597-599 Pittwater Road, o Joan Cobb of No.615 Pittwater Road, o Manual Guzman (who has written No. 2a Moorilla Street on the attendance sheet but I believe his proper address is No. 2, o Marcia Rutter of No. 47 May Road, Dee Why, o Ann Sharpe of No. 77 Brighton Street, Harbord, o Alex Shepherd of No. 613 Pittwater Road, Dee Why; and o Penny Goldin assessment officer for Warringah Council. 16 In Exhibit 4, the draft conditions of any consent, there was a deferred commencement condition 1 that the respondent deleted during the hearing because of the additional arborist report of Tracey Gilling the landscape architect in Exhibit C and another report by Dominic Fanning, arborist dated 8 June 2004. Condition 69 regarding s 94 contributions was disputed and a copy of the council's s 94 plan was not available at the hearing. The Court allowed the parties to give written submissions on that within fourteen days of 28 June 2004. The determination of any dispute remaining in regard to that condition, if raised, could be determined at the time of dealing with the conditions.

17 There were in evidence the following expert reports and other documents. None of the experts were called for cross-examination except for Mr Chen Chow who attended on site to explain the amended drawings and their impacts on the neighbours. o In Exhibit E was a Statement of Environmental Effects and an update of 10 December 2003 by Leland Sanchez principal of MCS Planning Services Pty Limited. o In Exhibit F was State Environmental Planning Policy No. 1 objections by Leland Sanchez to cl. 38(3) and cl. 38(4) of the State Environmental Planning Policy Seniors Living 2004. These were precautionary objections in the event that the Seniors Living Planning Policy applied to this development. o Exhibit G was a joint experts reports, minutes dated 9 June 2004 by Tony Chen Chow, architect for the applicant, Stephanie Little, town planner for the applicant and Penny Goldin, town planner for the respondent. o Exhibit H was Older and Disabled Persons Support Services Reports by Lyle Allen of Q Care Australia and Stan Manning of Stan Manning Associates. o Exhibit K was a joint report by disabled persons access experts Mark Relf for the applicant and Trevor Beardsmore for the respondent. o Exhibit J was a traffic report by John Hewitt of J Hewitt Traffic Planning Associates Pty Limited. o Exhibit M was the council officer reports of 26 May 2004 to the Warringah Independent Hearing and Assessment Panel (IHAP) and the Panel's recommendation of refusal at that stage due only to three concerns: The first over the roof design that was subsequently resolved by amended plans in Exhibit A. The concerns about trees were resolved by Exhibit C in the report by Dominic Fanning and disabled persons access concerns resolved by Exhibit K. 18 The Court was told by the applicant that a subsequent (IHAP) panel meeting of 23 June last now supported the proposal but the minutes of it were not yet typed. The applicant had called for the minutes and other documents however, the respondent had not been able to provide them. The Court gave leave of the parties to provide the panel's report within 14 days and any written submissions on it. However having had regard to the evidence and submissions before the Court, the Court need not and does not rely on the panel's recommendation to the council administrator in order to come to a decision. 19 The respondent tendered no expert reports but maintained its opposition to the application as in the further amended Statement of Issues dated 17 June 2004 in Exhibit 3. The Court heard evidence from and was taken to the properties of objectors adjoining the site, Mr J Mete, Mr A Babij and Mr M Guzman. The other objectors not directly adjoining the site gave evidence also. The objectors' written submissions were in Exhibit 7. 20 The key objections from Mr Babij were: o the bulk and overshadowing of the proposal on his house and backyard, which was to the south of the proposal. Of special concern was the landscape plan proposing a row of trees that would grow to 7 m along his boundary. o Loss of views to the ocean and Long Reef from his front balcony, the view being obtained across the subject property. o The noise of construction, which would necessitate excavation in the solid rock beneath the site and o overlooking of his backyard from the decks of units 2 and 6 of the proposal. 21 The main objection of Mr Mete was: o was overlooking of his house from the south facing balconies of units 3, 4, 7 and 8. 22 The main objections of Mr Guzman were: o overshadowing of his rear yard and pool area, o privacy to his new first floor additions that had large sliding glass doors facing the proposal. 23 After hearing the evidence and submissions the Court has concluded that following His Honour Justice Talbot in appeal 11629 of 2003, Mete v Warringah 2004 NSWLEC 273 the application was not made pursuant to State Environmental Planning Policy Seniors Living 2004 and therefore issues 2, 3 and 4 fall away. Therefore the applicable statute under the Environmental Planning and Assessment Act 1979 is the Warringah Local Environmental Plan 2000.

24 Under the latter instrument cl 29 is one of the major considerations together with cl 12 and the provisions for the Locality F4 Brookvale Valley Area. In regard to the locality statement it allows for Category 2 developments of housing for older people or people with disabilities. The question is whether the design is consistent with the Future Character Statement under cl 12(3)(b). 25 The future character envisages apartment buildings in the locality, which is the form of the older persons housing in this design. The proposal is in all locations one and two storeys above ground level except at the entry to the basement garage behind No. 2 Moorilla Street and the lower entry lobby off Pittwater Road. In both of the positions the third level at those two places is well screened by new proposed vegetation at Moorilla Street and existing vegetation at Pittwater Road. Breaking up of the building into three blocks reduces its bulk and scale to something that is not anathema to the new large houses in the locality and the new attached town house development approved by council next door on Nos. 607-611 Pittwater Road and No. 6-8 Moorilla Street.

26 The site is not within a medium density area as outlined in the local environmental plan map, but the provisions in cl 29 do not require housing for older persons to be in a medium density area.

27 In regard to cl 29(2)(a) height, the parties agree the only portion of the proposal that exceeds 8 m is the very tip of the eaves of the large clere storey roof lights to the upper units in each block. The roof lights were taken out of design drawings in an earlier version of the proposal, but they were in drawings seen by the independent experts panel of council. They had been deleted by the applicant to avoid any issue on height, but then re-introduced at the instigation of the council's panel as a desirable architectural feature with minimal impact. The Court concludes any exceedence by these small parts of the building are de minimus. The structures are set back from the main elevations of the building and are recessive in that regard. Any visual bulk of the building occurs at the facia or barge line of the roofs because the roofs for the most part are flat.

28 In regard to cl 29(2)(b)(i) the Floor Space Ratio complies with the statute as a result of amendments in the Exhibit A plans and the reduction of floor space therein. As the result of enlarging private open spaces under cl 29(2)(g) the proposal complies there also.

29 In terms of landscaped area the site provides almost double the requirement under the statute and complies with the parking requirements.

30 In regard to the objectors' concerns it seems that the concerns of the objectors who live away from the site are to do with the issues of access by frail or disabled persons to transport and community services and facilities and that has been resolved by the joint experts agreements and the draft conditions.

31 The objectors' concerns about the advent of apartment or medium density style buildings in a detached residential area is a matter for serious consideration. In the end the Court was convinced by the drawings of the council approved development on Nos. 607-611 Pittwater Road and Nos. 6-8 Moorilla Street directly adjoining and in part uphill of the site that the proposal being of similar character must come within the range of compatible types of housing contemplated.

32 In regard to Mr Babij's concerns, it was seen by height poles erected during the Court's view that the proposal represents a building that varies in the steps up the hill of between one and two storeys high, and complies with side boundary set backs and other built form requirements for the F4 locality.

33 The shadows cast, although greater than at present, still retain the council's minimum requirement of sunlit area in the Babij back garden in mid winter. Obviously the shadows are much less at other times, in other words there is more sunlight at other times of the year. Mr Babij (snr's) bedroom and the games room and the yard area outside them would retain direct sun until 3 pm on the shortest day of the year.

34 The Court has concluded that these impacts are reasonable and acceptable.

35 Privacy from the balconies of the proposal was to be given by fixed louvre blades on the balconies of concern. One must say from the site view the rear yard of Mr Babij's house was already overlooked by neighbours from windows and yard areas. The proposal would reduce the current impact, although there would be a larger structure than the existing one storey old cottage on No. 2a at Mr Babij's back fence. Nevertheless one would expect any redevelopment of that cottage to be two storeys as is the proposal.

36 In regard to construction noise that is also a likely occurrence given any redevelopment of No. 603 or No. 2a adjoining the Babij property, therefore it should not be reason for refusal provided adequate conditions are imposed to limit construction hours and periods of jack hammering excavation in rock such that there are breaks in jack hammering to give the adjoining neighbours respite.

37 The proposed trees alongside the side boundary should be of such species that they grow no higher than the wall of the building adjacent and they should be pruned at that height in order to give the screening and softening of the architectural form that was desired but without creating extra shadow that might reduce the amenity of the Babij property. 38 In regard to view loss from the front balcony it is true that the view will be lost, however it does occur across the adjoining property. The proposed structures there are no higher than one might expect with any redevelopment of No. 603, and considering on that frontage, the development is already set back more than 30 m from the Pittwater Road boundary, any further restriction of development on No 603 would appear to be unreasonable.

39 Of Mr Guzman's concerns the submission was made that he made his development application for the first storey extension and windows of his house after the development application for the proposal and in the knowledge of the existing overlooking from the existing houses on No. 2a and 4 and No. 597 Pittwater Road.

40 The proposal would have south facing balconies that would provide views beyond and over the top of his roof. Screen vegetation on the boundary would retain his privacy at his pool and ground floor level. With growth of the vegetation the new upper storey may also be screened. The barge facia of the roof of the proposal was only about 1.8 m above the roof of the existing one storey house on No. 2a and about the same height as the roof of the existing one storey house on No. 4 Moorilla Street. The bulk and height of the proposal was reasonable. It seemed to the Court that given reasonable growth of the screen vegetation, and also the separation between the buildings would provide reasonable and acceptable privacy in a typical suburban situation where mutual overlooking already exists.

41 In regard to Mr Mete's concern, his house on No. 597 Pittwater Road had only minor windows and side balconies facing obliquely towards the proposal. His rear yard was almost completely covered by a carport roof and the yard would not be observable from the proposal. The separation to his house was about 24 m. Given AMCORD standards that is more than adequate separation for privacy let alone the limited nature of the windows that might be seen from the proposal.

42 In any case Mr Guzman had much closer views of most of the same balconies and windows in Mr Mete's house from Mr Guzman's backyard, his new 2nd storey and pool area. Mutual overlooking already existed.

43 In regard to Mr Mete's father's house at No. 599 Pittwater Road, that house was well down towards the street boundary. There was a large empty backyard visible from the subject property which contained only a couple for cars and did not appear to be subject to high usage for recreation in which case one could not see any major impact on the property.

44 Overall the Court has found nothing sufficient for refusal of the proposal and intends to grant consent. 45 The submissions on draft condition 69 can be dealt with at the time of determining the conditions applicable to the proposal once written submissions on condition 69 are received.

46 Therefore the orders of the Court are : (1) The appeal is upheld.

(2) Consent is granted to 12 dwellings for older persons or persons with a disability under cl. 29 of the Warringah Local Environmental Plan 2000 with strata sub-division at No. 2a and 4 Moorilla Street and No. 603 Pittwater Road, Dee Why, as shown in drawings in Exhibits A, B and D of this appeal all as amended by and in accordance with the conditions in Annexure A hereto.

(3) The Exhibits be returned to the parties except Exhibits A, B, C, D, G, K, M, N, and 1, 3 and 4.

K G Hoffman Commissioner of the Court Nmc/rjs/ljr

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.