Lufi and Associates Pty Ltd v Waverley Council

[2006] NSWLEC 296

Land and Environment Court

of New South Wales

CITATION:

Lufi & Associates Pty Ltd v Waverley Council [2006] NSWLEC 296

PARTIES:

APPLICANT
Lufi & Associates Pty Ltd

RESPONDENT
Waverley Council

FILE NUMBER(S):

11372 of 2005

CORAM:

Bly C

KEY ISSUES:

Development Application :- Demolition of existing dwelling, construction of 2-storey townhouse, overshadowing, height, floor space ratio, solar access, off-street carparking, loss of visual and acoustic privacy, loss of views, streetscape

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Waverley Council Development Control Plan No 2 – Dwelling House and Dual Occupancy Development.

DATES OF HEARING:

26/05/2006

EX TEMPORE JUDGMENT DATE:

05/26/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr R. O'Gorman Hughes, barrister
Instructed by Bray, Jackson & Co

RESPONDENT
Mr M. Staunton, solicitor
of Staunton Beattie

JUDGMENT:

- 4 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

26 May 2006

11372 of 2005 Lufi and Associates Pty Ltd v Waverley Council

JUDGMENT

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

1 This appeal relates to Development Application No. 622/05 which is for the demolition of an existing dwelling house and the construction of a 2-storey dual occupancy development with a semi-basement carpark at No. 5 Alexander Street, Tamarama. The site comprising Lot 10 DP 10118 is rectangular in shape with a front boundary of 12.19 m and an area of about 446 sq m.

2 The locality is generally developed with detached dwelling houses, 2-storey townhouses and residential flat buildings of 3 and more storeys. Adjoining the site to the north is a 4 level residential flat building and to the south a 2-storey townhouse development.

3 The site is included in the Residential 2(b) zone under Waverley Local Environmental Plan 1996 (“the LEP”) in which zone the proposal is permissible with development consent. The objectives of the 2(b) zone provide for the introduction of a variety of housing forms including dwelling houses, residential flat buildings, townhouses and boarding houses, and require the maintenance and improvement of the amenity and existing characteristics of the locality.

4 Clause 10(2) of the LEP requires that consent shall not be granted unless the development under consideration meets one or more of the objectives of the zone. The proposal meets objective (a) of the zone that and this requirement is met. There are no relevantly applicable development standards in the LEP. Also applicable to the site is Waverley Council Development Control Plan No 2 – Dwelling House and Dual Occupancy Development (“the DCP”). This DCP relevantly contains standards relating to building height, site area, floor space ratio, setbacks and solar access.

5 In relation to building height I am satisfied that the proposal meets the various applicable requirements as well as the setback requirements. However the proposal having a floor space ratio of slightly over 1:1.1 exhibits a significant non-compliance with the maximum floor space ratio requirement, which is 0.61:1.

6 The DCP also contains solar access requirements in relation to neighbouring properties to the effect that the windows of adjoining properties, should not have their solar access reduced to less than two hours per day in mid winter. In this regard the overshadowing of the neighbouring townhouse development is variously affected such that some windows would no longer meet this requirement.

7 The application was advertised and 12 objections were received. Expressed concerns in relation to the proposal include insufficient off-street carparking, the creation of a wind tunnel for the adjoining development to the north, non-compliance with various Council controls, loss of visual and acoustic privacy, loss of views, loss of solar access and adverse impacts on the streetscape.

8 The hearing was conducted as an on-site hearing and the Court heard from eleven of the residents who explained in some detail their concerns that had previously been expressed in their letters to the Council. The Court also had the benefit of visiting some of these resident’s homes to understand their concerns.

9 The appeal was lodged with the Court on the basis of a deemed refusal. The Statement of Issues identified a number of issues which are in essence:

· Whether or not the proposed development meets the specific aims and zone objectives within the LEP;

· Whether the proposal meets the various requirements of the DCP;

· Whether sufficient information has been provided to enable the assessment of the application;

· Whether the proposal would be in the public interest and;

· Whether approval of the application create an unacceptable precedent.

10 To assist the Court in its deliberations the Court appointed, with the agreement of the parties, Mr B Newbold, an architect and town planner. Mr Newbold reported on the application and following his preliminary assessment a number of changes made to the design, which is now before the Court. In his final report Mr Newbold considered not only the identified issues but also considered the design more generally, reaching the conclusion that it could be approved. The council has now decided that the appeal can be determined by the granting of consent and has agreed to enter into consent orders.

11 Leaving aside for the moment the matter of overshadowing, having considered Mr Newbold’s report and his oral evidence and taking into account the concerns of the residents, I am satisfied that the proposal meets the general intent and for the most part the requirements of the DCP. I am also satisfied that there are no matters in the Statement of Issues or raised by the residents that are of determinative concern.

12 Much of the hearing time was taken up in attempting to understand the shadow impacts of the proposal and much of this time could have been saved had the architect provided the required comprehensive shadow diagrams. Nevertheless, Mr Newbold’s input was of considerable assistance and this resulted in a suggestion on his part that the impacts on the neighbouring townhouse development to the south could be improved by further changes to the design.

13 It was submitted on behalf of the applicant that these changes as suggested were not necessary, taking into account the zoning of the land which is for medium density development and the north-south relationship between the subject site and the townhouse development and the west facing windows and courtyard in the townhouse which obtain good levels of solar access. In principle I agree but the impacts were such, taking into account the provisions of the DCP, that in its initial form the proposal would not have been sufficiently responsive to the DCP requirements as to warrant approval.

14 The setting back of the southernmost dwelling from the rear as suggested by Mr Newbold and now accepted by the applicant as an alternative now achieves acceptable balance. As a consequence of that change and the existence of the central courtyard were the pergola structure will be lowered to first floor level the result is in solar access terms, satisfactory. The wider objectives of the DCP and the LEP are thus met and the development can thus be approved.

15 Finally, in reaching my conclusion I have also taken into consideration that development consent should be granted the non-compliance with the floor space ratio. I agree with Mr Newbold that this non-compliance does not cause any adverse impacts, particularly taking into account that the building fits entirely within if not almost entirely within the building envelope generated by the building height and the setback controls.

16 The orders of the Court will, by consent, be that the appeal is upheld. Development consent is to be granted subject to the conditions as provided by the Council plus additional conditions as discussed during the hearing involving:

The reduction in the extent of the skillion roof projection at the front of the building;

The deletion of the privacy screen and nib wall along the northern face of the top storey balcony facing the street;

The relocation of the western pavilion by 2.5 m away from the western boundary;

The lowering of the courtyard pergola;

Deletion of the courtyard privacy screen and the consequential adjustment of landscaping etc…within the court yard;

The inclusion of obscure glass in the stairwell.

___________________

T A Bly
Commissioner of the Court
Gbv/ljr