Grinberg v Byron Shire Council - [2007] NSWLEC 746

Land and Environment Court

of New South Wales

CITATION: Grinberg v Byron Shire Council [2007] NSWLEC 746

PARTIES:
APPLICANT
Bernard Grinberg
RESPONDENT
Byron Shire Council

FILE NUMBER(S): 10806 of 2007

CORAM: Brown C

KEY ISSUES: Development Application :- erection of a new dwelling to create a detached dual occupancy development - impact on character of area - amenity impacts

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Byron Local Environmental Plan 1998

CASES CITED: Veloshin v Randwick Council [2007] NSWLEC 428

DATES OF HEARING: 12/11/07

DATE OF JUDGMENT:
20 November 2007

LEGAL REPRESENTATIVES:
APPLICANT
Dr S Berveling, barrister
SOLICITORS
Blake Dawson Waldron
RESPONDENT
Mr A Seton, solicitor
SOLICITORS
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

20 November 2007

10806 of 2007 Bernard Grinberg v Byron Shire Council
JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Development Application DA 10.2007.63.1 by Byron Shire Council (the council) for the erection of a new dwelling to create a detached dual occupancy development at 89 Wordsworth Street Byron Bay (the site).

The site and surrounding area

2 The site is Lot 1 in DP 780229. It has an eastern frontage of 22.28 m to Wordsworth Street and a northern frontage of 40.23 m to Burns Street giving a total site area of 915.5 sq m.

3 The site contains a single storey dwelling located towards the Wordsworth Street frontage and a shed located approximately mid way along the southern boundary. A large mango tree is located near the shed.

4 The surrounding area is exclusively residential in nature.

The proposal

5 The proposal is to construct a new two-storey dwelling to the west of the existing dwelling with access from Burns Street. The ground floor area will have an area of 143.6 sq m and contain a rumpus room, a media area, a guest room and a garage containing two car parking spaces. The first floor has an area of 123.8 sq m and contains three bedrooms, kitchen, dining room, lounge room, toilet and bathroom facilities. Front and rear verandahs are also provided on this level.

Relevant planning controls

6 The site is zoned 2(a)(Residential Zone) under Byron Local Environmental Plan 1998 (LEP 1998). The proposed use is permissible within this zone. Clause 9(3) provides that consent must not be granted unless the proposed development is consistent with the zone. Clause 17 provides specific requirements for dual occupancy developments, relevantly a minimum lot area of 800 sq m (cl 17(5)(b)) and a maximum floor space ratio (FSR) of 0.5:1 (cl 17(6)). There was no disagreement that the proposed development satisfies these requirements being 915.5 sq m and 0.4:1 respectively.

7 Clause 40 provides requirements for height, relevantly a height of 4.5 m for the topmost floor level above existing ground level (cl 40(2)(b)(i)) and a height of 9 m from the topmost part of the building measured vertically to the existing ground level (cl 40(2)(b)(ii)). There was no disagreement that the proposed development…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWLEC 746
Decision Date: 20 November 2007

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Bernard Grinberg appealed against the Byron Shire Council's refusal of his Development Application DA 10.2007.63.1, which sought to construct a new dwelling on his property at 89 Wordsworth Street, Byron Bay, creating a detached dual occupancy development. The site, zoned under the Byron Local Environmental Plan 1998 as a Residential Zone, was exclusively residential, with a single storey dwelling and a shed. The proposed new two-storey dwelling, intended for holiday letting, included a ground floor with a rumpus room, media area, guest room, and garage, and a first floor with three bedrooms, kitchen, dining room, lounge room, toilet, and bathroom. The council argued that the proposal had unacceptable impacts on the area's character and amenity, and inadequate parking for the existing dwelling.

The court considered several issues, including whether the proposed development had an unacceptable impact on the character of the area, particularly front setback, bulk, scale, and density, whether it created unacceptable amenity impacts on adjoining properties, and whether it provided adequate parking for the existing dwelling. The court found that while the proposal complied with most of the relevant prescriptive measures, it did not sufficiently align with the character of the area as anticipated by the Byron Development Control Plan 2002. The two-storey construction of the dwelling was seen as disproportionate and inconsistent with the existing character of predominantly single storey residential dwellings. The court also noted valid concerns about overlooking and noise from the rear verandah and first floor windows to the directly adjacent property at 91 Wordsworth Street, which were not adequately addressed by the proposed development. Furthermore, the court considered that the proposed development did not adequately consider the existing dwelling on the site, leading to a disproportionate concentration of floor space.

The appeal was dismissed, and the development application was refused. The court's orders included the dismissal of the appeal, the refusal of the development application, and the return of the exhibits. This decision underscores the importance of considering the character of the surrounding area and the specific site constraints when assessing development applications, particularly in relation to bulk, scale, and massing of proposed developments.

Orders