Rihani v Waverley Council

[2022] NSWLEC 1292

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rihani v Waverley Council [2022] NSWLEC 1292

Hearing dates:

4-5 May 2022

Date of orders:

6 June 2022

Decision date:

06 June 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Development application DA-320/2021 for partial demolition of an existing two storey semi-detached dwelling and construction of an additional level and new hardstand car space, at 12 Narelle Street North Bondi, is determined by refusal of consent.

(3) The exhibits are returned except Exhibits 2, A and D which are retained.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house ––floor space ratio contravention – streetscape character – weight to development control plan provisions

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Waverley Local Environmental Plan 2012

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (December 2021)

Waverley Development Control Plan 2012

Category:

Principal judgment

Parties:

Sophia Zara Rihani (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
A Gough (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2021/364892

Publication restriction:

No

Judgment

1. This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by Waverley Local Planning Panel of development application No DA-320/2021 for alterations and additions to a dwelling house at 12 Narelle Street, North Bondi (site).

Site and locality

2. I rely on the Statement of Facts and Contentions (Ex 1) filed by the respondent, Waverley Council (Council), for much of the material in this and the following scene-setting sections.

3. The site is identified as Lot 481 in DP 209061 and is located on the southern side of Narelle Street, between Polyblank Parade to the west and Reina Street to the east.

4. The site is a rectangular shape with a northern frontage to Narelle Street and a southern rear boundary abutting 12 Stewart Street. The site has an area of 218m² and falls from the north front boundary towards the south boundary by approximately 5m.

5. The site is currently occupied by a one and two storey semi-detached dwelling with no vehicle access. The adjoining semi (ie “paired” with the dwelling on the site) has a street address of 10 Narelle Street. 10 Narelle Street has quite recently received approval for its own alterations and additions (referenced by the parties as DA-252/2021).

6. The site is located in the R2 Low Density Residential zone under Waverley Local Environmental Plan 2012 (WLEP), as is the area generally surrounding the site.

7. It is fair to describe Narelle Street as accommodating a varied collection of dwelling types; including single detached and semi-detached dwellings, with very evident alterations and additions of many different periods, and many alternative configurations in regard to off-street parking.

Proceedings

8. The proceedings were initially subject to mandatory conciliation in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act), commencing with an on-site inspection. The parties were not able to come to a formal agreement. In turn, the matter proceeded to a contested hearing, via the MS Teams platform, consistent with the Court’s COVID-19 Pandemic Arrangements Policy.

9. The experts providing town planning evidence to the Court were N Lennon (for the Applicant) and E Ross (for Council). The experts’ joint report was admitted into evidence as Ex 4.

Proposal

10. The DA seeks approval for partial demolition of the existing semi-detached dwelling on the site and construction of additional floor space in a proposed lower ground floor area and in a new first floor area. Related, particularly, to elements of the partial demolition is the proposal to provide for a new hardstand car parking space in the front of the dwelling.

11. There are two aspects of the proposed scheme that warrant attention. The first is the streetscape consequences of the hardstand car space. The proposed car space is dimensioned as 5.625m x 2.7m (Ex K). It requires a new driveway across the nature strip and then an elevated parking area which would be cut into the existing built form including the hip roof element shared with 10 Narelle Street. This is as a consequence of: (1) the fact that the existing dwelling is only setback about 3m from the road reserve boundary, and (2) the fall in levels between the road and the dwelling.

12. The east-west dimension of what I will call the “ground level cutout” accords with the car space width (ie 2.7m). The north-south dimension of the ground level cutout was not dimensioned but scales at some 2.4m. What I will call the “roof cutout” has the same east-west dimension but has a lesser north-south dimension of 1.32m (Ex L). This is because a portion of the car which would use the parking space can sit under the (future) roof undercroft.

13. The second aspect warranting particular attention is the presentation to the street of the additional upper level. This additional level would sit above much of the existing residence. However, in the plans before the Court (Ex D), a component of it projects beyond the northernmost point of the main roof ridge and the alignment of the upper level addition approved with DA-252/2021 (ie with respect to the adjoining semi-detached dwelling at 10 Narelle Street).

Statutory considerations

14. The proposal is permissible within the R2 zone of WLEP.

15. Clause 4.3 of WLEP stipulates a maximum building height for the site which the proposal would contravene by a relatively small amount. Council did not contest the building height topic or the Applicant’s written request seeking approval notwithstanding the contravention under cl 4.6 of WLEP.

16. Clauses 4.4 and 4.4A of WLEP provide floor space ratio (FSR) controls applicable to the site, which the proposal would contravene, and which is a contested matter.

17. Waverley Development Control Plan 2012 (WDCP) applies and is a point of significant attention.

Issues

18. In its outline of closing submissions received 5 May 2022 (CCS), and after certain plan amendments had been agreed, Council nominated six remaining contentions. These contentions relate to certain nominated policy provisions and embody some overlap.

19. For my purposes here I can usefully divide the issues in dispute into three areas, even then (and as will be seen) involving some overlap. These are:

1. Bulk and scale – essentially concerned with the contravention of the floor space ratio (FSR) control.

2. Streetscape presentation – the contention is concerned with the presentation of the semi-detached dwelling form in the streetscape. There are three main sub-issues: (1) implications of the proposed off-street car space (including roof “cut-out”), (2) implications of proposed first level addition’s street setback (including proposed projection beyond the main roof ridge line) and (3) proposed front façade windows.

3. Design excellence – having regard to certain particular provisions of WDCP.

20. It is convenient for me to consider the second and third issues together.

Bulk and scale including floor space ratio standard contravention

21. The experts had agreed in their written evidence that bulk and scale issues had been “largely resolved”. The planners’ joint expert report (Ex 4) has no paragraph or page numbers. I will cross reference this material by referencing the counted page. The abovementioned quote is from the 5^th page of Ex 4.

22. Nonetheless there is a contravention of the applicable floor space ratio (FSR) control under cl 4.4A(b) of WLEP. The applicable control is 0.865 :1 and it is agreed that the proposal would exceed the associated gross floor area by some 10.7m². It is further agreed that this would constitute an FSR breach of 4.9%.

23. The Applicant is seeking an exception for the contravention of the FSR standard under cl 4.6(2) of WLEP, which provides relevantly as follows:

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument...

24. The permissive power in cl 4.6(2) is subject to the restrictions in subcll 4.6(3)- (5):

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless—

(a) the consent authority is satisfied that—

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Planning Secretary has been obtained.

(5) In deciding whether to grant concurrence, the Planning Secretary must consider—

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.

25. Thus, the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the permissive power under cl 4.6(2) to grant development consent notwithstanding a development standard contravention (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [14]). The first opinion is in regard to a written request from the Applicant seeking to justify the contravention of the development standard and, specifically, whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3). The second opinion requires me to make my own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.

26. The Applicant has opened up the possibility of application of cl 4.6(2) in this matter by submission of a written request seeking to justify the contravention. The written request, prepared by Planik, is dated 26 April 2022 and was admitted into evidence as Ex H.

Floor space ratio contravention

Whether written request adequately demonstrates compliance is unreasonable or unnecessary

27. Ex H seeks to demonstrate that compliance with the FSR development standard is unreasonable and unnecessary using the first “Wehbe way” in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (‘Wehbe’) (ie that the development achieves the objectives of the standard, notwithstanding the contravention). It is helpful for me to call to mind the rationale behind the first “Wehbe way”, as explained by Preston CJ, in Wehbe (at [43]):

“The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).”

28. The objectives of cl 4.4 of WLEP are also seen as reasonably applying to the provisions at cl 4.4A in the circumstances. They are, relevantly, as follows:

…

(b)  to provide an appropriate correlation between maximum building heights and density controls,

(c)  to ensure that buildings are compatible with the bulk and scale of the desired future character of the locality,

(d)  to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and the locality.

29. I note there is a table at p 9 of Ex H which nominates and responds to “Objectives for consideration”. However, my consideration of the adequacy of the written request is not limited to this table. I need to consider the whole of the written request.

30. In relation to Objective (b), Ex H argues that no floor area is proposed above the applicable maximum building height and that on this basis the resultant density is not incongruous with the maximum building height applicable to the site. With this argument, Ex H demonstrates that the proposal provides an appropriate correlation between maximum building heights and density controls, and that Objective (b) is achieved in this instance.

31. There are three points in Ex H which for me adequately demonstrates the proposal’s achievement of Objective (c). That is to say, the proposed building achieves the objective of being compatible with the bulk and scale of the desired future character of the locality, notwithstanding the contravention. One point is in regard to the scale of the contravention. That is, the relatively minor contravention of some 4.9% or some 10.7m². This would not be sufficient alone, but Ex H also indicates that there is a similar overall building “volume” proposed with the approved development at 10 Narelle Street (DA 252/2021), and that recent approvals for the adjoining semi-pair to the west also involved FSR contraventions of similar or larger scale than that proposed here. The third point is the references to the surrounding context. I accept the argument that in terms of its bulk and scale (which here I differentiate from the quality of its streetscape presentation) the building is compatible rather than out of context with the desired future character.

32. I accept the argument in Ex H that the proposal does not result in unreasonable amenity impacts on neighbouring properties and the locality, and Objective (d) is achieved notwithstanding the contravention. I note the experts also indicate there is general agreement on this point (Ex 4 - 6^th page).

33. Using the first Wehbe way, Ex H has demonstrated that compliance with the development standard is unnecessary (the standard’s objectives are achieved anyway) and unreasonable (no purpose would be served).

Whether written request adequately demonstrates there are sufficient environmental planning grounds to justify the contravention

34. Ex H references two particular environmental planning grounds which in my opinion are sufficient to justify the contravention. The first is concerned with the explanation of the central (north-facing) courtyard. Apart from providing for amenity within the subject residence, the courtyard is argued as assisting in maintaining solar access to certain rooms for the neighbour to the west in mid-winter, something which would not necessarily occur with a more regular two storey (compliant) proposal. However, a consequence of the central courtyard (on the first floor) is a central hallway (“bridge”) element which adds about 6.5m² of floor space, but without impacting externalities. The second is concerned with the area which Ex H refers to as a “study/sunroom nook”. This area had been “added-back” to the proposal for the purposes of reducing the extent of cut-out of the roof to aid in the proposal’s streetscape presentation. This two points, along with the argued small scale of the contravention, are sufficient environmental planning grounds to justify the contravention.

35. Given these findings, I am satisfied that Ex H has adequately addressed the matters required to be demonstrated at cl 4.6(3), and therefore the requirements of cl 4.6(4)(a)(i) are met.

Proposed development in the public interest because of its consistency with objectives of standard and zone objectives

36. I rely on the reasons outlined above to find that the proposal is consistent with the objectives to the floor space ratio standard.

37. The zone objectives are, relevantly, as follows:

•  To provide for the housing needs of the community within a low density residential environment.

…

•  To maximise public transport patronage and encourage walking and cycling.

38. In regard to the first bullet point, the proposal involves an expansion to an existing residence to increase bedroom numbers to five, to meet certain housing needs, while the setting remains a low density residential environment. In regard to the third bullet point, the site is in a well serviced area of Sydney with regard to public transport, and both related and unrelated walking and cycling. The alterations and additions can assist in maximising public transport patronage and encouraging walking and cycling. The zone objectives, as relevant, are achieved.

39. Given these findings, I am satisfied that proposed development will be in the public interest because it is consistent with the objectives of the FSR standard and the objectives for development within R2 zone, and therefore the requirements of cl 4.6(4)(a)(ii) are met.

Conclusion – FSR contravention

40. I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b) of WLEP but note that I have considered the matters in cl 4.6(5) in coming to my conclusions in regard to the contravention and find nothing of significance arises in regard to these matters.

41. The states of satisfaction required by cl 4.6 of WLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding a breach of the FSR standard.

Semi-detached dwelling form, streetscape presentation and design excellence

The main concerns

42. As indicated above, the main concerns on streetscape presentation were: (1) implications of proposed on-site car space which involves demolition of part of the front of the ground floor of the dwelling and cut-out of the existing hip roof of the semi-pair, (2) first level addition’s setback to the street, in particular its projection beyond the main roof ridgeline and (3) the proposed window treatment to the front facade. After providing further particulars, I consider these matters of themselves, but also in the context of the design excellence provisions at Part B12 of WDCP.

43. The semi-pair (ie 10 and 12 Narelle Street) share a hip roof. A first floor addition recently approved (but not yet built) for 10 Narelle Street adopts the existing front junction point of the main roof ridge as its northern extent (with the exception of a short eave). That is, the approval for 12 Narelle Street does not extend beyond the main roof ridge. The first floor addition in the proposal before the Court would project beyond the roof ridge towards the street. There is a short length of about 1m which would align with 10 Narelle Street, but the plans at Ex D show a projection of 935mm for the first floor addition, otherwise. I note also that the Applicant proposed a condition of consent which would bring back the alignment of the northern façade of the first floor addition by 100mm. This would mean the new construction could meet the ridge capping to the hipped roof element. Under this condition the projection of the major portion of the façade would reduce to 835mm.

42. Ex D indicates windows over much of the front façade, albeit behind proposed vertical battens. An amended plan prepared by the Applicant, provided some comparisons with the window treatment proposed for No 10 Narelle Street. The drawings indicated a reduction of the proposed window area by about half (still behind battens).

Policy

45. There are a number of provisions of WDCP which apply. A selected group of applicable provisions is provided here. Most of the clause references below are found in Part C of WDCP. The exception is the reference to the “design excellence” contention which refers to Part B of WDCP.

46. Clause 2.13 of Part C of WDCP is concerned with semi-detached dwellings and has as its objectives:

“(a) To ensure alterations and additions visually read as a cohesive part of the existing dwelling from the streetscape.

(b) Materials and detailing of design elements such as roof features are to be of a high quality and reference existing architectural style and features.

(c) To maintain the original style, form and detail of development to provide cohesion between semi-detached or attached buildings.

(d) To maintain the appearance of semi-detached development as one of a pair, demonstrating consistent scale, character and established streetscape values.

(e) To retain the ability of the adjoining residence to undertake comparable cohesive additions.

(f) To ensure that additions present as an extension of the historic form of the existing building envelope.

(g) To ensure that the design of first floor additions provides for cohesion, both at the interface of dwellings resulting from additions to one dwelling and the overall form resulting from additions to both adjoining semi-detached dwellings.”

47. Clause 2.13.1 is concerned with built form. Control (c) is most relevant:

“(c) To protect the street frontage of the pair of semi-detached dwellings, the demolition of one existing semi-detached dwelling must not be carried out for the front 6m of the dwelling, or forward of the roof ridge line (whichever is greater).”

48. Clause 2.13.2 is concerned with first floor additions to semi-detached dwellings. Among other things it provides, by way of a control, that:

“(b) Any first floor addition is to be set back 6m or behind the roof ridge line (whichever is greater) from the principal street frontage in order to maintain a substantial portion of the existing front roof slope and any front verandah.”

49. Clause 2.8 is concerned with car parking. The clause objectives are:

“(a) To provide convenient and accessible parking that is appropriately designed and located.

(b) To achieve a high standard of urban design and retain the visual quality of lower density residential accommodation, streetscapes and landscapes.

(c) To protect the amenity and safety of pedestrians.

(d) To ensure that car parking accommodation does not dominate or adversely impact on the existing built or landscape character of the street.

(e) To encourage the use of alternative modes of transport in areas well serviced by public transport.

(f) To ensure on-street parking supply is protected by minimising impacts of additional vehicular kerb crossings.”

50. A “design approach” control at cl 2.8.1(a) is that:

“Approval for on-site parking will only be granted where the site and locality conditions permit.”

51. A “design” control under cl 2.8.4(c) is that:

“No element of the street façade/frontage of a building, including verandahs

and window awnings are to be removed or demolished in order to

accommodate car parking...”

52. The design excellence provisions of WDCP are at Part B12. The objectives are at clause 12.1 of this part and are as follows:

“(a) To ensure development contributes to the architectural and overall urban design quality of Waverley.

(b) To encourage variety in architectural design and character across large developments.

(c) To identify the key components of good urban design.

(d) To increase the value of site and context analysis and promote site specific design responses.”

53. Nominated controls include:

“(a) Development is to achieve a high standard of architectural design, materials and detailing appropriate to the building type and location.

(b) The form and external appearance of development is to improve the quality and amenity of the public domain.”

Evidence

54. Ms Ross notes that, with the front demolition (or cutout) required, as it is, to deliver the on-site car space, the facade setback is some “2.9m behind the recently approved adjoining semidetached dwelling at 10 Narelle Street (DA-252/2021)” and that this means “the front building line is not cohesive with the overall built form between the (semi) pair” (Ex 4 10^th page).

55. Ms Lennon emphasised the fact that the (amended) application retains a full view and appreciation of the western façade when viewing from the west, also noting the adjacent “perched” car park platforms at 14 and 16 Narelle Street (Ex 4 10th page).

56. In regard to the upper level, Ms Ross notes the misalignment with the approved development at 10 Narelle Street and believes that this part of the proposal would (Ex 4 12^th page):

“… dominate the streetscape when viewed from the public domain. The subject already sits forward of surrounding semi-detached dwellings located on the southern side of Narelle Street and any development forward of the principal ridge line will be highly noticeable from the street.”

57. Ms Lennon highlighted the existing eclectic streetscape character in the locality (Ex 4 12th page).

58. In regard to the front windows, Ms Ross argued as follows (Ex 4 15^th page):

“The proposed size of the front first floor bedroom windows are excessive and the reduction in size to front north facing windows is necessary so the style is to complement the style and proportions of the existing dwelling when viewed from the street.”

59. Ms Lennon argued that proposed “vertical battening” would obscure the reading of the size and or shape of window.

60. Ms Ross argued that the proposal could not accommodate off-street parking due to the on-site conditions. As proposed, the car space was visually incompatible with the streetscape context and the adjoining semi-pair.

61. Overall, Ms Ross argued (Ex 4 15th page):

“The amended plans do not encourage or facilitate a high architectural and aesthetic style through disregarding the adjoining approved development at No. 10 Narelle Street. The works to the front of the dwelling do not respond to the architectural style, scale, materials and character of the existing built form of the sunroom and front roof scape.”

62. Ms Lennon’s summary point was that the proposal (ibid):

“…retains the majority of the hipped roof form, respects the union of the roof and maintains the full western facade at the ground floor and part of the northern ground floor facade. The recessed car park element will be set behind a fence and gate that picks up the vertical batten expression of the proposed built form. While No.10 does not include a car space and will be different to No12, No.6 and No. 8 have recessed car space elements similar to what is proposed and carparking within the front setback is the predominant streetscape feature as demonstrated in [accompanying photos].”

Consideration

63. When I consider the three topics, clearly it is the proposed window configuration which is of least concern. I accept Ms Lennon’s evidence that no offence would be caused by the ultimately intended front windows, behind battens.

64. When I turn to the topics of the building and roof cut-out (for parking) and the upper level projection beyond the approved alignment for the upper level of the terrace pair with DA-252/2021, I note a clear breach of the controls in WDCP.

65. There are well-known findings in Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 (Zhang) that in determining a development application, development control plans need to be taken into consideration, as a “fundamental element” in, or a “focal point” of the decision-making process (Zhang [75], [77]). There is also the related finding that a “directly pertinent” development control plan provision was entitled to “significant weight” but “was not, of course, determinative” (Zhang [75]). In this instance we have directly pertinent provisions against the proposal. Among others, there is the control at Part C clause 2.8.4(c) restricting the removal of buildings to accommodate parking, and the controls looking to set first floor additions behind the roof ridgeline (Part C clause 2.13.1(c)).

66. I am also mindful of the findings in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 (‘Stockland’) at [87] in regard to the relevance of consistency of application of policy instruments, and of course the provisions of s 4.15(3A) of the EPA Act which asks me to look for alternative solutions to achieve the objects of development control plan provisions in instances of non-compliance.

67. First, I consider the arrangement to secure the new car space. The provision of an off-street parking space is no doubt a sought after outcome for local residents. This is evident from the varied configurations in Narelle Street delivering this outcome, including the immediately adjacent car park platforms at 14 and 16 Narelle Street. However, even the parking/built form configuration next door does have its own architectural coherence. It seems to me that it would be a new level of contravention of WDCP’s ambitions, in this street at least, to allow the direct cutting out of part of the front of a semi-detached residence to allow parking. In this instance there is no opportunity for effective landscaping which might soften that change. While I note that the building and roof cut-out would not be able to be viewed when walking along the footpath on the south side of the street, and the residence’s ground level is lower than the street, the change would have a good degree of visibility in the street otherwise and be noticeable due to its character (ie cutting out of part of the roof and frontage of a semi-pair).

68. Under s 4.15(3A) of the EPA Act, the Court should be flexible in applying the provisions of clauses 2.8.4(c) and 2.13.1(c). It was the Applicant’s submission that the proposal provided a reasonable alternative solution that achieves the objects of the standards. It seems to me that the objectives of clauses 2.8 and 2.13 are not achieved with the alternative provided by the Applicant. In regard to clause 2.13, the objectives relating to ensuring cohesion between terrace pairs would not be met with the proposed cut-out configuration. In relation to clause 2.8, I agree with the Applicant that the first part of the first objective, concerned with providing convenient and accessible parking is achieved. However, the proposal does not achieve a high standard of urban design or retain the visual quality of the setting and does not achieve the objective of ensuring parking does not dominate or adversely impact on the existing street character.

69. The projection of the first floor addition is a further detracting element of the proposal, projecting out 835mm from main roof ridge point, and the alignment adopted in the approved plans for 10 Narelle Street. It also would breach WDCP objectives and controls in my view. It was noteworthy that the Applicant made submissions that I consider an interim finding to bring that part of the first floor addition back to the alignment approved for 10 Narelle Street (DA-252/2021). In this instance I do not need to contemplate that (unusual) option, as the proposed parking configuration and visual impacts, more at the street level, would be unacceptable in my view in any event.

70. The proposal is at odds with relevant controls under WDCP, in relation to streetscape presentation for alterations and additions to semi-detached dwellings and the provision of off-street parking, and does not provide reasonable alternative solutions which achieve the objectives behind the relevant controls. There is insufficient justification to grant approval to the proposal in the circumstances.

Orders

71. The Court orders that:

1. The appeal is dismissed.

2. Development application DA-320/2021 for partial demolition of an existing two storey semi-detached dwelling and construction of an additional level and new hardstand car space, at 12 Narelle Street North Bondi, is determined by refusal of consent.

3. The exhibits are returned except Exhibits 2, A and D which are retained.

…………………………..

P Walsh

Commissioner of the Court

**********

Decision last updated: 06 June 2022