Shields v Waverley Council

[2011] NSWLEC 1115

Land and Environment Court

New South Wales

Medium Neutral Citation:

Shields v Waverley Council [2011] NSWLEC 1115

Hearing dates:

28 April 2011

Decision date:

28 April 2011

Jurisdiction:

Class 1

Before:

Murrell C

Decision:

1.Appeal in respect of No 82 Queens Park Road Queens Park is upheld.

2.The s 96 modification application to enlarge the basement area is determined by the granting of consent subject to the consolidated conditions in Annexure A.

3.The exhibits are returned with the exception of the amended plans and conditions.

Catchwords:

APPEAL: s 96 modification application to increase basement storage area by additional excavation and other minor matters. Impact on adjoining properties by excavation and removal of material; increase in FSR leading to overdevelopment; necessity and reasonableness of large storage area and potential for use as habitable area.

Legislation Cited:

Land and Environment Court Act 1979

Cases Cited:

Super Studio v Waverley Council [2004] NSWLEC 91
Zhang v Canterbury City Council [2001] NSWCA 167

Category:

Principal judgment

Parties:

Ms Andrea Shields (Applicant)
Waverley Council (Respondent)

Representation:

Mr V Conomos
Conomos Legal (Applicant)

Mr S Patterson
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

10126 of 2011

Judgment

1. These proceedings today have been conducted as an onsite hearing. The matter was originally incorrectly set down for a s 34AA conciliation conference pursuant to the Land and Environment Court Act 1979 and the following the Registrar contacting the parties they agreed for the matter to proceed by way of an on-site hearing under s34B of the Act.

1. The Court met on-site with the parties and heard from the adjoining property owners who object to the s 96 modification application. Following the view, the Court resumed to the council chambers and I heard evidence from the parties experts in this matter, as well as having the benefit of the joint experts report.

1. Prior to giving judgment in this matter at the council chambers, I raised with those present if they objected to me giving an extempore judgment that would be recorded later, due to the fact that unfortunately I did not have a dictaphone with me. I gave those present the opportunity to object to this course of action and that the alternative would be for me to hand down judgment the next morning in Court. No objection was raised to giving my determination at that time with judgment subsequently to be published.

1. The applicant is seeking consent to a modification application to an approval granted by the Court for alterations and additions to an existing dwelling at the property known as 84 Queens Park Road, Queens Park. The modification seeks to amend the consent as follows:

(a)   increase the floor area of the basement level by undertaking additional excavation, including the installation of a narrow highlight window to the western elevation and skylights around the swimming pool;

(b)   reduction in the size of the swimming pool and setback the swimming pool from the eastern boundary;

(c)   reconfiguration of the double garage, pedestrian entry and bin storage area and;