Rihani v Waverley Council

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…