Boston Blythe Fleming Pty Ltd v Pittwater Council [2013] NSWLEC 1240

Boston Blythe Fleming Pty Ltd v Pittwater Council [2013] NSWLEC 1240

The proposal was refused because it significantly extended the existing envelope of the Pasadena building, creating additional bulk and scale that would have unreasonable impacts on the scenic quality and amenity of the surrounding public domain and on views from 2195 Pittwater Road, and was inconsistent with the desired future character of the locality. The proposal also provided no on-site parking for restaurant, bar and cafe patrons, which would have a significant detrimental impact on the amenity of the surrounding area.

Jurisdiction
Australia
Judgment Date
24 December 2013
Procedural Posture
Class 1 Appeal Pursuant to S97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Principal Judgment After Mandatory Conciliation Under S34 of the Land and Environment Court Act 1979 Was Terminated and the Matter Proceeded to Hearing
Outcome
Appeal dismissed and development application refused.
Legal Topics
['development Application Refusal' 'existing Use Rights' 'alterations and Additions' 'intensification of Use' 'height, Bulk and Scale' 'view Loss' 'heritage Impacts' 'car Parking Adequacy' 'foreshore Access']
['planning and Environment Law' 'development Control' 'land and Environment Court Proceedings'] ['development Application Refusal' 'existing Use Rights' 'alterations and Additions' 'intensification of Use' 'height, Bulk and Scale' 'view Loss' 'heritage Impacts' 'car Parking Adequacy' 'foreshore Access']

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Procedural Posture

Class 1 Appeal Pursuant to S97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Principal Judgment After Mandatory Conciliation Under S34 of the Land and Environment Court Act 1979 Was Terminated and the Matter Proceeded to Hearing

Legal Issues

  1. 1 ['Whether the proposal was appropriately characterised as alterations and additions rather than demolition and new development.' 'Whether the proposal represented an unacceptable intensification of the existing use.' "Whether the proposal's height, bulk and scale were acceptable having regard to the site's context and desired future character of the locality." 'Whether the proposal caused unjustified view impacts from 2195 Pittwater Road, Church Point.' 'Whether the proposal provided adequate on-site car parking for the restaurant, bar and cafe patrons.' 'Whether the proposal had unacceptable detrimental impacts on the setting of nearby heritage items.' 'Whether land-based pedestrian foreshore access should be provided over the site.']

Ratio Decidendi

The proposal was refused because it significantly extended the existing envelope of the Pasadena building, creating additional bulk and scale that would have unreasonable impacts on the scenic quality and amenity of the surrounding public domain and on views from 2195 Pittwater Road, and was inconsistent with the desired future character of the locality. The proposal also provided no on-site parking for restaurant, bar and cafe patrons, which would have a significant detrimental impact on the amenity of the surrounding area.

Court Disposition

Appeal dismissed and development application refused.

Orders

  • ['The appeal is dismissed.' 'Development Application No. N0021/13 for alterations and additions to an existing building for continued use as a restaurant, cafe, motel and retail shop is refused.' 'The exhibits, other than exhibits 10, A and D, are returned.']