Provincial Planning Pty Ltd v Warringah Council [2004] NSWLEC 186

Provincial Planning Pty Ltd v Warringah Council [2004] NSWLEC 186

The amended development, subject to the agreed and Court-amended conditions, was consistent with the desired future character of the locality, satisfied or could satisfy the applicable Warringah Local Environmental Plan 2000 controls, and had no unacceptable impacts sufficient to refuse consent. The height...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
15 March 2004
Procedural Posture
Class 1 Appeal Concerning Refusal of a Development Application / Ex Tempore Judgment by Consent Orders
Outcome
Appeal upheld; development application approved as a deferred commencement consent subject to conditions.
Legal Topics
['demolition of Existing Industrial Buildings' 'erection of Industrial Warehouses and Office Buildings With Strata Subdivision' 'landslip Hazard' 'visual Impact and Building Height Exceedance' 'desired Future Character of Industrial Precinct' 'protection of Bushland, Flora and Fauna' 'landscaped Area' 'traffic, Parking and Loading']
['planning and Environment' 'development Consent'] ['demolition of Existing Industrial Buildings' 'erection of Industrial Warehouses and Office Buildings With Strata Subdivision' 'landslip Hazard' 'visual Impact and Building Height Exceedance' 'desired Future Character of Industrial Precinct' 'protection of Bushland, Flora and Fauna' 'landscaped Area' 'traffic, Parking and Loading']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Class 1 Appeal Concerning Refusal of a Development Application / Ex Tempore Judgment by Consent Orders

Legal Issues

  1. 1 ['Whether the amended development was consistent with the desired future character of the Brookvale Industrial West locality under Warringah Local Environmental Plan 2000.' 'Whether an exception should be granted for non-compliance with the 11 m building height control.' 'Whether the development adequately protected nearby bushland, remnant vegetation, flora and fauna, including by retaining a 25 m bushland buffer.' 'Whether the site conditions and proposed excavation gave rise to unacceptable landslip or stormwater risks.' 'Whether the development satisfied requirements for landscaping, building bulk, visual impact, traffic access, parking, loading, erosion and sedimentation, and archaeological matters.' "Whether impacts and objectors' concerns could be addressed by appropriate conditions of deferred commencement consent."]

Ratio Decidendi

The amended development, subject to the agreed and Court-amended conditions, was consistent with the desired future character of the locality, satisfied or could satisfy the applicable Warringah Local Environmental Plan 2000 controls, and had no unacceptable impacts sufficient to refuse consent. The height exceedance for the buildings was acceptable under cl 20 because the development would remain below the relevant tree canopy context, not dominate the street or skyline, and its visual, landslip, ecological, traffic, parking and other impacts could be ameliorated by conditions.

Court Disposition

Appeal upheld; development application approved as a deferred commencement consent subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development application No. 2002/1837DA for the demolition of existing structures and the erection of five buildings above a podium at Nos. 122 to 126 Old Pittwater Road, Brookvale, is approved as a deferred commencement consent subject to the conditions contained in Annexure A.' 'The...