Raissis v Waverley Council

[2017] NSWLEC 1519

Land and Environment Court

New South Wales

Medium Neutral Citation:	Raissis v Waverley Council [2017] NSWLEC 1519
Hearing dates:	4 September 2017
Date of orders:	05 September 2017
Decision date:	05 September 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is upheld. 2. Modification application No DA528/2015/A to modify the development consent for a residential flat building at 15 Park Parade, Bondi is approved subject to the conditions in Annexure A. 3. The exhibits, with the exception of exhibits 3, A and B are returned.
Catchwords:	MODIFICATION APPLICATION: modification of approval for the construction of a residential flat building - reconfiguration of the lower ground floor to add an additional unit – excessive floor space ratio – inadequate side setback – inadequate landscaped area
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 65 Waverley Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Spiro Raissis (Applicant) Waverley Council Respondent)
Representation:	Counsel: Dr J Smith, barrister (Applicant) Mr K Webber, solicitor (Respondent)   Solicitors: Maddocks Lawyers (Applicant) Wilshire Staunton Beattie Lawyers (Respondent)
File Number(s):	2017/10719
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of modification application number DA528/2015/A, which seeks to modify Development Consent No. DA528/2015 (the original approval) that approved for the construction of a new residential flat building at 15 Park Parade, Bondi (the site).

2. The modification application proposes the modification of condition 1 of the development consent to permit the following:

1. reconfiguration of the lower ground floor to add an additional unit;

2. consequential changes to the basement level to accommodate seven car spaces and deletion of storage area, bicycle spaces, OSD tank and services;

3. provision of a car lift in lieu of a ramp access;

4. reconfiguration of internal areas, including stairwell;

5. extension of southern portion of the building to reduce southern side setback to 1.5 m, extending from midway to rear of the building, and modify unit 3 from a studio to one-bedroom unit;

6. removal of the lift; and

7. landscaping modifications, including conversion of rear yard from communal to private open space, removal of tree, and amend front setback to include bin storage.

3. The council raises a number of contentions in relation to the modification application. Those identified in the council's Statement of Facts and Contentions are:

1. excessive floor space ratio (FSR);

2. unacceptable building design;

3. inadequate setbacks;

4. inadequate landscaped area;

5. poor unit amenity;

6. overshadowing;

7. tree loss;

8. inadequate car and bicycle parking;

9. excessive excavation;

10. inadequate waste storage; and

11. inadequate information.

4. A number of the contentions, such as tree loss, inadequate information, and inadequate car and bicycle parking were addressed to the satisfaction of council through additional reports, and other matters such as overshadowing and poor unit amenities were addressed in the joint report of Mr Layman for the council and Ms Askin for the applicant.

5. In simplifying the contentions, Mr Webber for the council succinctly stated that the concerns of the council relate to a combination of the excessive FSR, the reduced setback particularly in the south-east corner of the site, and the amount of landscaping. In essence, the amount of the floor area proposed was excessive for the site and created shortcomings in other areas, such as landscape area and setbacks.

The site

6. The site is rectangular with a front and rear boundary of 12.49 m and side boundaries of 40.59 m, giving an area of 507 sqm. It falls away by approximately 2.5 m from the front to the rear of the site. The site is currently occupied by a single-storey dwelling and single garage to the rear. There is vehicular access from Park Parade provided along the northern side of the site. To the north of the site are two-part three-storey residential flat buildings. To the south are two-storey Federation-era dwelling houses, a single-storey sandstone Colonial dwelling house, and a red-brick three-storey 1960s residential flat building.

Relevant planning controls

7. The site is zoned R3 Medium Density under the Waverley Local Environmental Plan 2012 (LEP 2012). The site is not listed as a heritage item and is not within a conservation area although the site is located in the vicinity of heritage items at 18 Park Parade and adjoins the Waverley Park landscape conservation area opposite, although the council raised no heritage contentions. Clause 4.3 provides for an FSR of 0.6:1 although the original approval by the council provided an FSR of 0.65:1 and the modification application seeks an FSR of 0.88:1.

8. Waverley Development Control Plan 2012 (DCP 2012) provides for setbacks at pt C2 cl 2.5 and requires a minimum site setback of 3 m in control (b). The proposed modification seeks a minimum 1.5 m setback in the south-west portion of the site. In relation to landscaping, pt C2 cl 2.13 of DCP 2012 requires 30%, or 152 sqm of the site to be landscaped area. The proposed modification seeks to provide 102 sqm.

9. State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development. Clause 28 requires consideration to be given to the design quality principles (cl 28(2)(b)) and the publication Apartment Design Guide (ADG) (cl 28(2)(c)).

The evidence

10. While the variation to the FSR, side setback and landscaped areas are not minor, it was generally accepted that the site and its context contribute to the need to consider variations to these and other planning requirements. It is correctly acknowledged by the council that the site is constrained due to its non-compliant 12.49 m frontage, and the unlikely opportunity to amalgamate with adjoining properties, so that strict compliance with LEP 2012 development standards and DCP 2012 requirements should not necessarily be required. The question is, to what extent should some flexibility be allowed in this case?

11. Ms Askin accepts that the proposed modification is reasonable in terms of variations to the planning controls, whereas, Mr Layman comes to the opposite conclusion. Dr Smith, for the applicant submits that some consideration should be given to the comments provided on the modification application by the council's SEPP 65 Design Review Panel (the Panel). Section 29(2)(a) of SEPP 65 provides for this consideration. He submits that as the appeal was a deemed refusal, the comments of the Panel have not been considered by the council. The comments of the Panel provide a thorough assessment of the modification application through the provisions of SEPP 65; these comments are positive and supportive of the application and in relation to FSR state:

The proposed FSR of 0.89:1 is an increase of 0.24:1 above the previous approved scheme 0.65:1 and 0.29:1 above the planning controls. It would appear that many of the residential flat buildings along Park Parade would exceed the current controls, though whether it is by the same extent as the proposed in this application, should be confirmed by council.

The additional yield being proposed, beyond that already approved, has been made possible by the reconfiguration of the basement to allow for two additional dwellings (now one dwelling), at the lower level of the rear of the property. This is a good design outcome and ensures better use of the rear garden."

12. For side setbacks, the Panel states, "

Setbacks from the side boundaries vary between 1.5 m and 3.8 m, which are the same as the previous application. The majority of the building is setback 1.5m from both side boundaries, which is half of the DCP control, which seeks a 3 metre setback from side boundaries. The panel believes the 3 m setbacks are excessive and do not reflect the typical conditions found throughout the locality. The proposed 6 m setback from the rear boundaries consistent with the control dimension but the building extends further to the rear of its site, then do the adjacent buildings."

13. The Panel makes comments in relation to landscaping and their comments and disagrees with the calculations of Mr Layman in terms of the amount of landscaped area. It would appear that Mr Layman has excluded any areas that are located above the basement slab, where the Panel has allowed this area to form part of the landscaped area as, presumably, it is based on the definition in that, "it is part of the site use for growing plants, grass and trees." The Panel comments in relation to landscaping are: "

The deep soil and landscaped areas of the site comply with the control requirements. Communal open space is inside court guards setbacks with the front and rear spaces being secured for private use by the adjacent units. The landscaped area of 159 square metres or 31% is a good outcome given the small site area, even though it includes roof gardens at levels 1 and 2 that are not accessible and have limited information on how these areas will be planted."

14. Overall, the Panel makes the following comments,

This is a well resolved building that would suit its location. The proposal seeks a further increase in the order 0.89:1 beyond the existing approval 0.65:1 and exceeding the FSR control of 0.6:1. It is noted that this increase has been gained through the addition of two units at the rear, now one of the property where the impact is negligible.

The proposed changes to the building setbacks have an increase shadow impact to 16 Park Parade; however, this is relatively minor given the majority of the building sits with the height controls. The panel accepts that the side setback of 1.5 m (against the DCP control of 3 m) is consistent with the characteristics of the locality

.

The panel would prefer the OSD tank to be relocated away from the rear boundary to preserve the existing tree. In addition, the relocation of the garbage bin storage away from Park Parade frontage is also preferred. Subject to matters noted above being resolved to the satisfaction of the reviewing planner, the panel commends this proposal to council.

15. With the benefit of a site inspection and surrounding and an understanding of the existing approval and the proposed modifications, I agree with the comments of the Panel and Ms Askin. I am satisfied that the modification application does not change the approved development to any meaningful way and the additional floor area is not overly visible from any location. In my view, the limited area for the reduced side setback also has little if any effect on the adjoining property or the streetscape. Overall, the form of the modified building is acceptable in its context. Consequently, there is no reason why the modification application should not be approved.

Orders

16. The orders of the Court are:

1. The appeal is upheld.

2. Modification application No DA528/2015/A to modify the development consent for a residential flat building at 15 Park Parade, Bondi is approved subject to the conditions in Annexure A.

3. The exhibits, with the exception of exhibits 3, A and B are returned.

__________

G Brown

Commissioner of the Court

10719.17 Brown - Annexure A (306 KB, pdf)

Decision last updated: 21 September 2017