Moskovich v Waverley Council - [2016] NSWLEC 1015

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Moskovich v Waverley Council [2016] NSWLEC 1015
Hearing dates: 18 & 19 August 2015. Further submissions 27 August 2015
Date of orders: 20 January 2016
Decision date: 20 January 2016
Jurisdiction: Class 1
Before: Tuor C
Decision:
See paragraph 100

Catchwords: DEVELOPMENT APPLICATION: residential flat building. Non- compliance with height and floor space ratio development standards and whether cl 4.6 of local environmental plan is satisfied. Streetscape, setbacks, communal and private open space.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act
State Environmental Planning Policy No 65 – Design Quality of Residential Flat Buildings
State Environmental Planning Policy No 1- Development Standards
Waverley Local Environmental Plan 2012
Cases Cited: Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190
Dem Gillespies v Warringah Council (2002) 124 LGERA 147
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248
Lane Cove Council v Orca Partners Management Pty Ltd (No 2) [2015] NSWLEC 52
Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21
Wehbe v Pittwater Council [2007] NSWLEC 827
Category: Principal judgment
Parties:
Dimitri Moskovich (Applicant)
Waverley Council (Respondent)
Representation:
Counsel:
Mr A Galasso SC (Applicant)

Mr M Staunton (Respondent)

Solicitors:
Gadens (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 10914 of 2014

Judgment

Dimitri Moskovich (applicant) has appealed, pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the refusal by Waverley Council (council) of a development application (D232/2014) for the demolition of existing structures and construction of a residential flat building (RFB) at 334 and 334A Bondi Road, Bondi (site).

Site and locality

The site consists of two adjoining allotments identified as SP521 and SP10317. It is irregular in shape with a north (rear) boundary to Edward Street of 31.74m, east (side) boundary of 32.755m, south (front) boundary of 28.88m to Bondi Road and west (side) boundary of 43.94m. The site has an overall area of 1046.7sqm with a fall from Bondi Road to Edward Street of between six to ten metres.
Each allotment is developed with a RFB with a primary frontage to Bondi Road and garages to Edward Street.
Adjoining the site to the east is a two to four storey RFB (334B Bondi Road) and to the west is a three to seven storey RFB (332 Bondi Road). Development in the immediate locality is a mix of residential buildings ranging from single detached dwellings, semi-detached dwellings and RFBs from two to nine storeys.

Planning controls

The site is zoned R3 Medium Density Residential under Waverley Local Environmental Plan 2012 (LEP). The development is permissible with consent.
Under cl 4.3 and the Height Map of the LEP, the maximum height of a building is 12.5m. Under cl 4.4 and the Floor Space Ratio (FSR) Map the maximum FSR is 0.9:1. The proposal exceeds…

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: [2016] NSWLEC 1015
Decision Date: 20 January 2016

CaseChat Overview and Summary

The dispute in Moskovich v Waverley Council was heard by the Land and Environment Court of New South Wales, where the plaintiff sought to overturn a decision by the defendant to deny a development application. The plaintiff's application sought to construct a four-story building with two basement levels for residential purposes on a property located in Bondi Beach. Waverley Council denied the application on the basis that it did not comply with the relevant planning scheme and local environment plan.

The court was required to determine whether the development application complied with the statutory requirements and planning schemes. The plaintiff argued that the proposal was in line with the objectives of the planning scheme and local environment plan, and that the Council's decision was unreasonable. The Council maintained that the proposal did not comply with the requirements of the planning scheme and local environment plan and that the decision to deny the application was reasonable.

The court found that the proposal did not comply with the planning scheme and local environment plan, as it exceeded the allowable height and floor space ratio. The court also found that the Council's decision to deny the application was not unreasonable, as it was based on the statutory requirements and planning schemes. The court rejected the plaintiff's argument that the proposal was in line with the objectives of the planning scheme and local environment plan.

The court dismissed the plaintiff's application and affirmed the Council's decision to deny the development application. The court ordered that the costs of the proceeding be paid by the plaintiff to the Council.

Orders

Orders of the court

See paragraph 100

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Moskovich v Waverley Council [2016] NSWLEC 1015
Hearing dates:	18 & 19 August 2015. Further submissions 27 August 2015
Date of orders:	20 January 2016
Decision date:	20 January 2016
Jurisdiction:	Class 1
Before:	Tuor C
Decision:	See paragraph 100
Catchwords:	DEVELOPMENT APPLICATION: residential flat building. Non- compliance with height and floor space ratio development standards and whether cl 4.6 of local environmental plan is satisfied. Streetscape, setbacks, communal and private open space.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act State Environmental Planning Policy No 65 – Design Quality of Residential Flat Buildings State Environmental Planning Policy No 1- Development Standards Waverley Local Environmental Plan 2012
Cases Cited:	Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 Dem Gillespies v Warringah Council (2002) 124 LGERA 147 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 Lane Cove Council v Orca Partners Management Pty Ltd (No 2) [2015] NSWLEC 52 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Wehbe v Pittwater Council [2007] NSWLEC 827
Category:	Principal judgment
Parties:	Dimitri Moskovich (Applicant) Waverley Council (Respondent)
Representation:	Counsel: Mr A Galasso SC (Applicant) Mr M Staunton (Respondent) Solicitors: Gadens (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	10914 of 2014