Casa Maria Pty Limited v Waverley Council

[2009] NSWLEC 1374

Land and Environment Court

of New South Wales

CITATION:

Casa Maria Pty Limited v Waverley Council [2009] NSWLEC 1374

PARTIES:

APPLICANT
Casa Maria Pty Limited

RESPONDENT
Waverley Council

FILE NUMBER(S):

10636 of 2009

CORAM:

Tuor C

KEY ISSUES:

CONSENT ORDERS - DEVELOPMENT MODIFICATION :- Alterations and Additions
impact on residential amenity

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

30 October 2009

EX TEMPORE JUDGMENT DATE:

30 October 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr P McEwen (barrister)
SOLICITOR
Swaab Attorneys

RESPONDENT
Mr S Patterson (solicitor)
SOLICITOR
Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tour C

30 October 2009

10636 of 2009 Casa Maria Pty Limited v Waverley Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 This is an appeal against the deemed refusal by Waverley Council (council) of an application under s96 of the Environmental Planning and Assessment Act 1979 to amend development consent (577/2006) for minor alterations and additions to the approved mixed residential/commercial development at 40 Hall Street, Bondi (the site).

2 The alterations and additions proposed under the s 96 application are set out in the Statement of Environmental Effects (Exhibit B) and the Statement of Facts (Exhibit 3).

3 The parties are seeking consent orders from the Court. In accordance with the Court’s practice direction objectors were notified of the consent orders and they provided evidence on site. The principal concerns of the residents were the number of changes to the approved development that have occurred and that the overall bulk and scale of the development has increased through these changes. The objectors considered that the changes already impact on their amenity, particularly privacy.

4 In relation to the specific amendments proposed under the s 96 application, the residents main concern related to the proposed glass balustrade (items 5, 6, 7 and 8) and the changes to the louvres from fixed to sliding (item 9). The residents considered that the balustrade would enable the roof area to be used. Mr Pearce was concerned that the balustrade should be opaque glass to minimise privacy impacts and to limit the visibility of the air conditioning and servicing units from his property.

5 Mr Faruqi provided planning evidence for the council. He adopted the assessment in the Statement of Environmental Effects and considered the proposed changes to be minor. He stated that the changes would not result in an increase in the overall bulk of the building or adverse amenity impacts such as overshadowing, view loss or privacy. In particular, Mr Faruqi considered that the glass balustrades were required to provide a minimum parapet height. The spaces enclosed by the balustrade along Consett Avenue were not of sufficient width to be usable open space and there would be no privacy impacts as the areas faced a public street and were a considerable distance from the residential properties across the road.

6 Similarly, the spaces enclosed by the balustrade along the west side, in Mr Faruqi ’s opinion, would not have adverse privacy impacts due to their size and distance from Mr Pearce’s property. However, he recognised that opaque glass rather than clear glass, would limit the visibility of the air conditioning and service units. The applicant has agreed to change the glass from clear to opaque, which has been imposed as an additional condition of the s 96 consent.

7 Mr Faruqi also considered that the change to the louvres would not result in adverse privacy impacts due to the louvres being off a bedroom, which faced a public street or the front garden of the adjoining semi. The bedrooms were also a significant distance from the dwellings opposite.

8 I accept Mr Faruqi ’s assessment. I understand the residents concerns about the development as a whole and the sensitivity of a commercial/ residential zone interface, however, the application before me is for minor changes, which will not result in any material increase in bulk or adverse amenity impacts. I therefore am satisfied that the consent orders sought by the parties may be granted.

9 The consent orders are:

(1) Appeal is upheld.
(2) Consent is granted to Section 96 Modification Application dated 28 July 2009 seeking to modify development consent No 577/2006 for minor alterations and additions to the approved mixed residential/commercial development at 40 Hall Street Bondi subject to the conditions as set out in Annexure A.
(3) Exhibits 3, 2 and A are retained.
The Court notes the agreement of the parties that there be no order as to costs.

___________________

Annelise Tuor
Commissioner of the Court
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Annexure ‘A’

Conditions of Consent

Casa Maria Pty Ltd v Waverley Council

1. Approved Development

The development must be in accordance with Architectural Plan Nos A1.15P, A1.16M, A1.17M, A1.18N, A1.19M, A1.20M, tables and documentation prepared by Giles Tribe Architects, dated 28/07/2009, and received by Council on date 28 July 2009, except where amended by the following conditions of consent;

2. BALLUSTRADING

All glass balustrading on the southern and western elevations on the western side of the third floor of the building shall be opaque.

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