Shulkin v Waverley Council

[2009] NSWLEC 1290

Land and Environment Court

of New South Wales

CITATION:

Shulkin v Waverley Council [2009] NSWLEC 1290
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Ronnie Shulkin

RESPONDENT
Waverley Council

FILE NUMBER(S):

10394 of 2009

CORAM:

Dixon C

KEY ISSUES:

SECTION 96 MODIFICATION :- To increase the lower ground floor area of a dual occupancy, floor space ratio.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Waverley Development Control Plan 2006
Waverley Local Environmental Plan 2006

DATES OF HEARING:

31 August 2009

 
DATE OF JUDGMENT: 

1 September 2009

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Hill (solicitor)
SOLICITOR
Susan Hill & Associates

RESPONDENT
Mr S Patterson (solicitor)
SOLICITOR
Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Dixon C

1 September 2009

10394 of 2009 Ronnie Shulkin v Waverley Council

JUDGMENT

1 The applicant seeks approval to increase the lower ground floor area of two three storey dual occupancies at 13 St Thomas Street, Bronte.

2 This is an appeal pursuant to section 96 of the environmental planning and assessment Act 1979 for the modification of a development consent issued by the court on 26 June 2008.

3 Although initially refusing this application the Council now supports the amended plans filed by the applicant and asks the Court to make orders in accordance with the consent orders filed today.

4 The council’s evidence is that the amended plans together with the draft conditions address all of council’s contentions. Furthermore, the adjoining neighbours who attended the hearing on site gave evidence that subject to certain additional conditions addressing their concerns they too had no further objection to this application

Background

5 The site is on the western side of St Thomas Street Bronte with a total area of 717m2 and a frontage of 14.705 to St Thomas Street, a rear boundary of 14.705m with both side boundaries of 48.77m.

6 St Thomas Street is located within an area defined by the Bronte Beach Residential Character Study under the Waverley Development Control Plan 2006 (Amendment No4) as being in the Bronte Terraces precinct – made up of escarpments and areas with curvilinear streets hugging the hillside. The locality includes a mix of architectural styles and periods and the site is not in a heritage or conservation zone.

7 The relevant planning controls which I am required to consider in my assessment of this application under section 79C include: Waverley Local Environmental Plan 2006 and Waverley Development Control Plan 2006 specifically Part D1-Dwelling House and Dual Occupancy Development.

8 The area is zoned 2(a) residential under the LEP and dual occupancy development is permissible with consent. The development approved by the Court created two new Torrens Title lots, providing equal sized allotments of 358.5m2 and the construction of two three storey dual occupancies on the site.

9 The approved development has an FSR for the site of 1.38:1(986.4m) a departure from the DCP maximum of 0.5:1(358.5m2). This resulted in a non compliance of 175% or 627.9m2,of which 502.8m2 is located over two levels underground, and with the majority of the ground level also below the natural ground level.

10 The original section 96 modification sought approval to carry out excavation to accommodate additional storage at the lower basement level, two gyms and two new home theatres at the upper basement level, all totally below ground level. The additional area sought was 232m2.

11 Council refused the original section 96 modification on 24 April 2008 on the following grounds:

12 “The proposal [is] excessive, unnecessary and an unacceptable overdevelopment of the site, resulting in a 220% non compliance with the Council’s excavation control in WDCP 2006, Part D1, 5.1.1

13 There is insufficient justification to allow the development and it is deemed unnecessary and therefore not supported following an assessment against the planning principles stipulated [in] Super Studio V Waverley Council.

14 The amenity of the new rooms is substandard, being significantly underground, and cannot be supported.

15 The proposal fails against the zone objectives in the Waverley Local Environment Plan 1996, particularly clause 10(c) which dictates that uses should be compatible with the character and scale of low density housing.

16 The application is against the public interest.”

17 The evidence of the applicant’s own planner Mr Moody is that he was unable to support the original section 96 application and as a consequence the applicant lodged an amended proposal which Mr Moody and the Council now support.

18 The amended proposal was advertised and initially the adjoining neighbours lodged written objections in respect of the application.

19 The amended proposal which, is now supported by the council and the adjoining neighbours, is described in Mr Moody’s position paper dated 28 August 2009 to include:

“No modifications… at the basement level for each dwelling; and
Wine cellar, storeroom and gym for each dwelling at the lower ground level.”

Evidence.

20 Council submits that its senior planner Mr Bull is supportive of the amended application subject to conditions because it satisfactorily addresses all of the contentions raised by Council in the statement of facts and contentions filed with the court.

21 The appeal commenced onsite and included a view of the site from the street and Mr Boyd’s adjoining property.

22 The parties used time at the commencement of the hearing to talk to the adjoining neighbours to resolve their concerns. Mr Boyd whose property adjoins the site gave evidence that subject to certain additional conditions he had no objection to the application. Ms Sheehan who lives next door gave evidence that subject to reinstatement of her boundary fence as detailed in an additional condition she had no objection to the application.

23 At the hearing I made clear to the residence and the parties that the Court needed to be satisfied on the evidence having regard to the matters raised in section 79C of the environmental planning and assessment act 1979 that the application should be approved by way of consent orders. I was concerned to make clear that this process was not a rubber stamp of a done deal between the parties. Both residents I believe understood my role and their opportunity to raise any objection to the application.

24 Following the view the appeal resumed in court and the residents were invited to attend the further hearing but declined that invitation.

25 The applicant called evidence from Mr Moody to address the amended proposal including whether the development was substantially the same development and other relevant matters in section 79C as raised in the facts and contentions.

26 Mr Moody’s evidence is that the amended proposal is “most reasonable and worthy of approval.” The court was taken to his position paper which addressed at length the contentions raised by the council.

27 Mr Moody gave evidence that the amended proposal is substantially the same development as previously approved by the Court and satisfactorily addresses the issues raised by the council and the objectors.

28 His evidence is that the additional floor space will not be visible from the adjoining properties or the public domain. In his expert opinion there will be no additional visual impact arising from the modifications, because the additional excavation will be within the approved building footprint.

29 In Mr Moody’s opinion there will be no adverse amenity impacts arising from the proposed additional excavation at the lower ground floor level because what is proposed not visible. His evidence is that there will be no additional overshadowing, overlooking, loss of view or adverse visual impact for the neighbours.

30 Furthermore, the modifications he states do not increase the demand for parking. The additional space will not include habitable space and a draft condition to that effect is proposed.

31 In his view the objectives of the zoning are achieved despite some numerical non-compliances with the planning controls in the DCP.

32 While the additional space will require additional excavation some (7%), Mr Moody’s evidence is that the proposed excavation will not adversely impact on neighbouring properties because of the conditions imposed by the Court at the time of the original consent coupled with the draft conditions tendered at this hearing.

33 The removal of the home theatres will remove the issue of habitable rooms and any non- compliance with the Building Code of Australia Guidelines.

34 The internal amenity of the gym is not an issue for either party.

35 While the proposed modifications will increase the numerical non compliance with the FSR control in the DCP Mr Moody submitted the increase was numerical only and did not adversely impact on the size scale or bulk of the development as the increased area is below ground level. The landscape area is not interfered with and Mr Moody is of the opinion that the development is significantly below the council height control and therefore not perceived as an overdevelopment of the site. The only excavation will be at the lower ground level the same level approved by the Court. The limitation of the excavation to the within the building footprint is consistent with the Court’s decision in Edgar Allan V Woollahra.

36 Asked to explain the need or reasonableness of the proposal in light of the Court’s decision in Super Studio Mr Moody referred to the relevant objective of the DCP to ensure a high level of design. Prior to these amendments the development did not propose storage space and Mr Moody was of the opinion that storage space was a design feature that should be achieved in a development of this type.

37 In cross examination by council Mr Moody expressed the opinion that the DCP provided opportunity on this site to develop a sensitive design which did not breach height controls or adversely impact on views because is was set into the site. He did not believe that this development was a precedent for other development under these controls but accepted it was site-specific development.

38 The council accepted Mr Moody’s evidence and supported the approval of the application subject to conditions.

Reasons

39 I have considered the evidence including the public interests and relevant matters in section 79C and I am of the opinion that the Court should make the consent orders sought by the council.

40 I accept the evidence of Mr Moody and following a view of the site and an opportunity to hear from the residents I am of the opinion that the amended proposal is acceptable subject to the draft conditions filed by the council including the additional conditions that address the adjoining neighbours concerns.

41 The Court has approved the original development and this amendment to that approval according to the evidence of Mr Moody, which I accept, does not adversely impact on the amenity of the neighbours or adversely impact on the streetscape. It does not increase the height, bulk of scale of the development or interfere with views.

42 I appreciate that there will be a greater departure from the DCP controls particularly with respect to FSR but in the particular circumstances of this application do not think it is unreasonable to approve the application which is supported by both the council and the resident objectors whose properties adjoin the site.

43 I am mindful that the provisions of the DCP are to be considered as a fundamental element in, or focal point to, my decision making process and should be given significant weight in my decision making process but are not in themselves determinative. Zang v Canterbury City Council (2001)115 LGRA 373.

44 The council has as required by clause 36 of the Court’s practice direction demonstrated that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account.

45 I have given a genuine and proper consideration to the controls in the DCP and the requirement in section 79C and I am satisfied that it is reasonable in the circumstances of this case to approve the section 96 modification application as proposed by the filed by the parties.

46 Accordingly I make orders in accordance with the consent orders filed with the Court as follows:

1. The appeal is upheld in accordance with the amended plans filed with the Court, Exhibit A.
2. Section 96 application no DA 683/07/A for additional sub ground floor area at the lower ground floor level of the property known as 13 St Thomas Street, Bronte and lodged with the Respondent on 28 January 2009 is approved subject to the conditions in Annexure A hereto.
3. The applicant is to pay the council’s costs resulting from the substitution of the amended plans as agreed in the sum of $2500 within 14 days of the date of this order.

___________________

Susan Dixon
Commissioner of the Court
ljr

17/09/2009 - Annexure B changed to Annexure A - Paragraph(s) Paragraph 46 - Order 2