Lea v Waverley Council

[2008] NSWLEC 1498

Land and Environment Court

of New South Wales

CITATION:

Lea and Anor v Waverley Council [2008] NSWLEC 1498

PARTIES:

APPLICANT
Graham Lea and Orel Lea

RESPONDENT
Waverley Council

FILE NUMBER(S):

10741 of 2008

CORAM:

Bly C

KEY ISSUES:

Development Application :- three-storey semi-detached dual occupancy dwelling, overdevelopment of the site, non-compliance with various provisions of the planning controls, streetscape, bulk and scale, setbacks, height, amenity impacts on neighbours, including view loss, vehicular access and parking.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Waverley Development Control Plan 2006

CASES CITED:

Tenacity Consulting v Warringah [2004] NSWLEC 140

DATES OF HEARING:

04/12/2008 and 19/12/2008

 
DATE OF JUDGMENT: 

23 December 2008

LEGAL REPRESENTATIVES:

APPLICANT
Ms S. Hill, solicitor
of Susan Hill & Associates Lawyers

RESPONDENT
Mr S. Patterson, solicitor
of Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

23 December 2008

10741 of 2008 Graham Lea and Orel Lea v Waverley Council

JUDGMENT

1 This appeal relates to a development application for the demolition of an existing dwelling and the construction of a new three-storey semi-detached dual occupancy dwelling at 11 Kent Street, Waverley.

2 The site is zoned 2(a) Residential-Low-Density under Waverley Local Environmental Plan 1996 and in this zone the proposal is permissible with development consent. Also applicable is the Waverley Development Control Plan 2006.

3 The application was advertised and six objections were received from neighbouring property owners or tenants and from the Bronte Beach Precinct Committee. Matters of concern raised in these objections include loss of privacy, view loss and overshadowing, excessive height bulk and scale and non-compliance with applicable planning controls. These concerns were elaborated upon by several of these objectors when the hearing began on-site.

4 The application was refused by the council for 11 reasons including failure to meet various requirements of the planning controls including character objectives, floor space ratio, setback, height and streetscape controls and car parking.

5 For the purposes of the appeal the council's contentions include overdevelopment of the site and failure to comply with various provisions of the planning controls relating to streetscape bulk and scale setbacks and height; amenity impacts on neighbours including view loss; vehicular access and parking.

6 As a result of discussions between the parties the applicant agreed to significant amendments to the building's design that in turn resulted in the council advising that it now raises no objection to the proposal, leaving the matter to the Court.

7 I have now reviewed the various materials provided during the hearing including the council officer's development assessment report that recommended approval, the minutes of the development and building unit that indicate concurrence with the officer's report, together with the resident objections. Bearing in mind that there are now no issues in dispute between the parties that require the resolution of the Court, I see no reason why development consent as now sought should not be granted.

8 I should nevertheless comment on the particular concerns that resulted in the removal of the parapet structure from the building. During the on-site hearing it became apparent that a view of the ocean over the site would be affected by this structure and I understand that its removal now facilitates the retention of at least some of this view. The resulting modified roof form does not however avoid the loss of some of the views from other close by residential properties (including 3 Kent Street opposite that is to be modified).

9 View sharing was considered at length in the council officer's report applying the view sharing principle in Tenacity Consulting v Warringah [2004] NSWLEC 140, concluding that the development exhibits the best outcome for the site and its surrounds. I see no reason why I should disagree with this analysis especially taking into account the removal of the parapet structure that has the effect of improving views.

10 I have therefore decided that:

1. The appeal is upheld.
2. Development application No 80/2008 for the demolition of an existing building and the construction of a three-storey semi-detached dual occupancy building at 11 Kent Street, Waverley is determined by the granting of development consent subject to the conditions in Annexure A hereto.

___________________

T A Bly
Commissioner of the Court
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