Alco Electrics Pty Ltd v Waverley Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Alco Electrics Pty Ltd v Waverley Council [2014] NSWLEC 1223
Hearing dates:	23 September 2014
Decision date:	14 October 2014
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld in part
Catchwords:	MODIFICATION: Condition of consent; Floor space ratio, rear setback
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 2012
Cases Cited:	Gann & Anor v Sutherland Shire Council [2008] NSWLEC 157
Category:	Principal judgment
Parties:	Alco Electrics Pty Ltd (Applicant) Waverley Council (Respondent)
Representation:	Applicant: Mr A Isaacs (Barrister) Respondent: Ms C Morton (Solicitor) Applicant: Boskovitz & Associates Respondent: Sparke Helmore
File Number(s):	10523 of 2014

Judgment

1. COMMISSIONER: The applicant appeals Waverley Council's deemed refusal of modification application DA-618/2011/B for an extension to the rear of the first floor dwelling of an approved dual occupancy at 86 Blair Street, North Bondi (the site). The purpose of the proposed extension is to create a third bedroom.

1. The appeal, made under s 97AA of the Environmental Planning and Assessment Act 1979 (the EPA Act), commenced on site as a mandatory conciliation conference under s 34AA of the Land and Environment Court Act 1979 (the Court Act).

1. At the commencement of the conciliation the parties and the Court heard from two nearby residents who had lodged written submissions opposing the proposal. Both objectors own properties to the rear of the site. One of the objectors made submissions on behalf of another neighbour who owns a property immediately adjoining the rear of the site. Their concerns are summarised as:

• Loss of privacy/ overlooking of private open space and primary living areas
• Visual impact - excessive bulk and scale
• Overdevelopment of the site

1. The site was viewed from the objectors' properties. The rear building alignment was noted on site.

1. As there was no agreement between the parties, the conciliation was terminated and the matter proceeded to a hearing in accordance with s 34AA(2)(b)(i) of the Court Act.

The site, locality and relevant background

1. The site is located on the northern side of Blair Street. Adjoining the site to the west is a two-storey red brick residential flat building over ground level parking; to the east is a two storey dual occupancy of subdivided semi-detached dwellings with garages at the street frontage. Nearby development ranges in style and age and is typically two to three storeys in height. To the rear are two storey semi-detached dwellings located over parking.

1. Relevant to some of the objectors' concerns, in 2011 the Land and Environment Court made orders in effect to restrain the unauthorised use of the premises as either 'backpackers' accommodation' or as a 'boarding house'.

1. Construction work is currently underway for alterations and additions to an existing dual occupancy dwelling on the site. The works were approved under development consent DA-618/2011, as modified by DA-618/2011/A.

1. Modification application DA-618/2011A was approved subject to (amended) condition 2(b) and (new) condition 2(k). Condition 2(k) is in the following terms: