Court finds provisions not eroded by non-compliances
The Land and Environment Court has found that a list of non-complying development approvals on the Peninsula did not demonstrate that the council's planning provisions had been eroded.
In dismissing an appeal against the council refusal of an application to build three units at 34 Warrah St, Umina, Commissioner Peter Walsh said the list did not demonstrate that the Council's development control plan had been selectively applied.
The case appears to be the first time Central Coast Council has taken a public position on the status of historic non-compliant approvals on the Peninsula or that the Court has made finding about them, despite such lists regularly appearing in development applications for the Peninsula.
Commissioner Walsh said his attention had been drawn by the applicant to a previous decision of the court which stated a "development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied".
"I accept the closing submissions from Council that a 'careful approach' is necessary in coming to a view that relevant policy has been selectively applied.
"In this instance, I was not satisfied that the references to other approvals in the applicant's evidence and submissions proved the point."
Commissioner Walsh said: "It is necessary to have at least some understanding of 'the nuances of (an) individual site' when references to other approvals seek to prove an argument that policy has relevantly been set aside.
"I do not believe that the limited details provided or selective references to very-dated Council assessment reports in support of the applicant's position is sufficient on that front."
Commissioner Walsh also noted that Central Coast Council had recently adopted a new development control plan.
"It seems premature to be assuming too soon, or without more comprehensive evidence, that the relevant provisions should be set aside based on historical development assessment."
Commissioner Walsh also said most of the list of non-complying approvals did not help address the issues with the application under consideration.
"It is very reasonable to turn to the function of recent development or approvals in defining existing and desired future character," he said.
"However, in regard to this, it did not seem to me that the applicant (through [the applicant's planning consultant Mr Ravi] Sharma or otherwise) provided convincing evidence about other examples of the juxtaposition of non-compliant fill at the site frontage, non-compliant front building setback, along with what I will suggest to be unresolved privacy treatment in regard to the front courtyard.
"While Mr Sharma cited examples on other issues, I think the most apposite comparable example to the proposal's site frontage configuration was the adjacent development at 32 Warrah St.
"When I compare the proposal to this adjacent development, all I can see is the proposal as a more-detracting element, in regard to local character ambitions."
SOURCE:
Website, 4 Mar 2024
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