Steele v Waverley Council

[2018] NSWLEC 1659

Land and Environment Court

New South Wales

Medium Neutral Citation:	Steele v Waverley Council [2018] NSWLEC 1659
Hearing dates:	4 December 2018
Date of orders:	19 December 2018
Decision date:	19 December 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) Development application DA-410/2017 for alterations and additions to an approved residential flat building at 585 Old South Head Road, Rose Bay is refused. (3) The exhibits are returned with the exception of Exhibits 1, C and D.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to an approved residential flat building – new development application – variation to floor space ratio sought – impact to adjoining neighbours to the rear – compliance with floor space ratio development standard not unreasonable or unnecessary – appeal dismissed.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 2012
Cases Cited:	Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 Super Studio v Waverley Council [2004] NSWLEC 91 Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited:	Waverley Development Control Plan 2012
Category:	Principal judgment
Parties:	Oliver Steele (Applicant) Waverley Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicant)   Solicitors: Conomos Legal (Applicant) S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2017/353423
Publication restriction:	No

Judgment

Nature of Appeal and Outcome

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act (the Act) against the deemed refusal by Waverley Council of development application DA-410/2017. In this appeal the applicant seeks approval for alterations and additions to an approved residential flat building at 585 Old South Head Road, Rose Bay. The works for which approval is sought focus primarily on the attic level and facilitate an additional bedroom being provided for Unit 5 and Unit 6 taking them to three bedroom apartments.

2. The application was amended by leave of the Court in June 2018. Council maintains the amended application should be refused on the basis that:

1. the development has excessive bulk and scale and fails to comply with the maximum floor space ratio (FSR) development standard in cl 4.4 of Waverley Local Environmental Plan 2012 (LEP 2012);

2. the proposed height of the development is unacceptable;

3. the development has an unacceptable impact on streetscape;

4. it generates unreasonable additional overlooking of rear yards and windows of adjoining developments; and

5. it will result in unacceptable overshadowing of the adjoining property to the south of the site.

3. The primary matter for the Courts determination is whether the power, pursuant to cl 4.6 of the LEP 2012, ought to be exercised in order to grant development consent notwithstanding the non-compliance with the FSR standard.

4. For the reasons set out below at paragraph [31- 36], I am unable to form the requisite opinion of satisfaction, under cl 4.6(4)(a)(i) of the LEP 2012, that the written request adequately demonstrates that compliance with the FSR standard is unreasonable or unnecessary in the circumstances of this case.

5. Given I am not satisfied by this threshold issue, no…