Colonial State Properties Pty Ltd v Willoughby City Council

[2005] NSWLEC 678

Land and Environment Court

of New South Wales

CITATION:

Colonial State Properties Pty Ltd v Willoughby City Council [2005] NSWLEC 678

PARTIES:

APPLICANT
Colonial State Properties Pty Limited

RESPONDENT
Willoughby City Council

FILE NUMBER(S):

10749 of 2005

CORAM:

Tuor C

KEY ISSUES:

Development Application :- Residential Flat Building
Impact on adjoining property
SEPP 1 objection floor space ratio
whether site area includes land zoned for road reservation

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 1
Willoughby Local Environmental Plan

DATES OF HEARING:

21/11/2005

EX TEMPORE JUDGMENT DATE:

11/21/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. Kondilios, solicitor
of Maddocks

RESPONDENT
Mr A. M. Pickles, barrister
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

21 November 2005

10749 of 2005 Colonial State Properties Pty Limited v Willoughby City Council

JUDGMENT

1 This matter comes before the Court as consent orders between Colonial State Properties Pty Limited and Willoughby City Council (the council). The appeal is in relation to the refusal by the council of a development application for a residential flat building at 110 Victoria Avenue, Chatswood (the site).

2 In accordance with the Court’s Practice Direction 23, the opportunity is provided for any person who has objected to the proposal to seek leave to be heard in the Court’s consideration of a request for consent orders. In this regard I heard evidence on site from Mr Curran of Unit 2, 7-13 Kooringa Road, Chatswood. Mr Curran’s main concerns was the impact on solar access to his open space.

3 Willoughby Development Control Plan 15 (DCP 15) provides that a minimum of three hours solar access should be maintained between 9 and 3 in midwinter to north facing windows and living areas and the principal portion of recreational open space. Ms Laidlaw, the Court appointed planning expert’s evidence was that this control was met. She considered the terrace area off the living room to be the principal portion of open space to Unit 2, which would maintain solar access from midday onwards in midwinter.

4 Mr Curran also raised concerns about the proposal’s non-compliance with floor space ratio (FSR), site coverage, landscaped area and setback controls contained in the council’s planning instruments. These matters were issues between the parties but have been resolved by the submission of amended plans in response to Ms Laidlaw’s preliminary report.

5 The non-compliance with the planning controls results from whether the site includes the area of land zoned 5(d) Road Reservation under Willoughby Local Environmental Plan (the LEP). I accept Ms Laidlaw’s evidence and the submissions of both advocates that it is appropriate that the area of the road widening be included in the site area. On this basis there is general compliance with the planning controls.

6 The non-compliance with the fsr control is about 0.1:1. The applicant has submitted a SEPP 1 objection which states that the additional floor space is within an attic roof form and consequently the non-compliance does not result in any additional bulk and scale and meets the objectives of the standard. Ms Laidlaw agreed that the bulk of the development was not markedly different from that to be expected by a development which complied with the fsr standard. I accept Ms Laidlaw’s evidence that the SEPP 1 objection is well founded.

7 On this basis I am satisfied that the consent orders sought by the parties may be granted.

8 The orders by consent are:

1. The appeal is upheld.
2. The development application No 0314/2005 lodged on 29 April 2005 for the demolition of existing dwelling house structures within Lot 1 in Deposited Plan 934946, Lot 21 in Deposited Plan 976882 and Lots 1 and 2 in Deposited Plan 980474 and the construction of a 20 dwelling residential flat building including basement car parking and ancillary landscaping and services, be approved subject to the attached conditions marked “Annexure A”.
3. The exhibits except exhibits A and 2 may be returned.
4. Each party to bear its own costs.

___________________

Annelise Tuor
Commissioner of the Court
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