Xpace Design Group Pty Ltd v Waverley Council

[2006] NSWLEC 332

Land and Environment Court

of New South Wales

CITATION:

Xpace Design Group Pty Ltd v Waverley Council [2006] NSWLEC 332

PARTIES:

APPLICANT
Xpace Design Group Pty Limited

RESPONDENT
Waverley Council

FILE NUMBER(S):

10274 of 2006

CORAM:

Bly C

KEY ISSUES:

Development Application :- detach dual occupancy and detached dwelling , floor space ratio, bulk and scale, non-compliance with development control plan.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Waverley Council Development Control Plan No. 2

DATES OF HEARING:

31/05/2006

EX TEMPORE JUDGMENT DATE:

05/31/2006

LEGAL REPRESENTATIVES:

APPLICANT
Ms M-L. Taylor, solicitor
of Norman Waterhouse

RESPONDENT
Mr S. Patterson, solicitor
of Wilshire Webb

JUDGMENT:

- 1 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

31 May 2006

10274 of 2006 Xpace Design Group Pty Limited v Waverley Council

JUDGMENT

1 On 14 December 2004 the Waverley Council granted consent to Development Application No. DA377/2004/A for the erection of three new dwellings comprising a detached dual occupancy and a 2-storey dwelling on two separate allotments at 49 Beaumont Street, Rose Bay.

2 On 14 June 2005 an application (DA377/2004A) under s96 of the Environmental Planning and Assessment Act was lodged with the council for a number of amendments mainly comprising the infill of an existing void and alterations to fencing. The most significant element of these changes comprises the conversion of the void space in dwelling 3 to provide a home theatre, storage, laundry, bathroom and internal stair. As a consequence of these changes a number of narrow windows are to be incorporated into an existing approved west facing wall. These windows apart from the front fence are the only external manifestations of the changes.

3 The site is situated in the 2(a) Residential Zone under Waverley Local Environmental Plan 1996 (“the LEP”) in which zone the development as already approved continues to be permissible with development consent. There are no relevantly applicable development standards in the LEP. Relevant zone objectives in the LEP applicable to this proposal comprise objective1(b), which is to maintain and improve the amenity and existing characteristics of localities predominately characterised by dwelling houses.

4 The relevant housing aims as found in cl 3(7)(d)(f) of the LEP are concerned to ensure that new housing is compatible with surrounding development and for the improvement of the amenity of residential areas. Also aim (b) provides for the increasing of the residential population by maintaining and increasing the number and variety of dwellings commensurate with the capacity with the natural environment.

5 The application was notified to surrounding property owners and three objections were received raising issues including:

· excessive increases in building size

· privacy and noise problems

· excessive bulk and size and

· non-compliance with councils development control plan requirements

6 Whilst onsite I heard from Mr M. Semer of 34 Beaumont Street, Rose Bay and Ms I. Kelly of 50 Liverpool Street, Rose Bay. They both expressed concerns that the proposal disregards the applicable floor space ratio as contained in the development control plan, contending that this requirement should be complied with as a matter of principle.

7 The application was reported on by Mr J. Coudounaris, a council town planner who recommended that the modification application be approved. His recommendation was confirmed by the councils development and building unit. Notwithstanding these recommendations the council decided on 24 January 2006 that the application should be refused for the following reasons:

1. The proposal will result in an over development of the property in regard to floor space ratio.

2. Contrary to council’s development control plan and the local environmental plan.

3. Not in the public interest.

8 The council has since re-considered it’s position and has now invited the Court to enter into consent orders. Those orders include a number of conditions requiring a number of relatively minor changes to the proposal, which changes have been accepted by the applicant.

9 Having reviewed all of the materials made available to me including Mr Coudounaris’ report it is clear that the only issue of any substance involves the non-compliance with the floor space ratio. Other aspects of the proposal that might point to impacts on the amenity on the locality or the neighbourhood or indeed the aims and objectives of the LEP do not arise.

10 The Waverley Council Development Control Plan No. 2 sets a maximum floor space ratio of 0.56:1 whereas the proposed development is 0.69:1 a change resulting from the utilisation of the existing approved void for habitable purposes. The objectives for the floor space ratio standard relevantly comprise:

1. To ensure that new dwelling houses and alterations and additions to existing dwelling houses are of an acceptable size and bulk in relation to the size and shape of the allotment.

2. To ensure there is no overdevelopment of dwelling house sites.

3. To ensure that any negative impacts on the adjoining or nearby residents living in buildings on adjoining or nearby allotments are minimised and where ever possible eliminated.

4. To ensure that dwelling house development adds to and does not detract from the existing streetscape and character of the area.

11 In his report Mr Coudounaris deals with the issue of floor space ratio as follows:

A majority of the additional floor space is concealed within the basement. The proposal fills an existing void area that retains the approved height setbacks and visual bulk and scale. Although non-compliant the additional floor area is concealed and the non-compliance is therefore considered acceptable in this instance.

12 He also considered the modifications in terms of streetscape particularly the fencing changes and concluded that this would complement the visual appearance of the development.

13 It is clear to me that Mr Coudounaris’ reasoning and conclusions are. Correct. I particularly note that the changes to the development will not be apparent from the public domain and they will only be apparent to a neighbour to the extent that that neighbour might be able to see the new vertical windows inserted into the already approved wall.

14 The issue of floor space ratio is the only issue of any substance in the case. The non-compliance has been explained and justified and I have therefore decided that the appeal should, by consent, be upheld and development consent be granted subject to the conditions in Exhibit.

___________________

T A Bly
Commissioner of the Court
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