Zitserman v Waverley Council

[2012] NSWLEC 1161

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Zitserman v Waverley Council [2012] NSWLEC 1161

Hearing dates:

15 May 2012

Decision date:

16 May 2012

Jurisdiction:

Class 1

Before:

Brown ASC

Decision:

1. The appeal is upheld.

2. Development Application No. DA/-599/2011 for the demolition of all improvements and construction of 2 dwellings buildings with subdivision at 17 Wonderland Avenue Tamarama is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibit A.

Catchwords:

DEVELOPMENT APPLICATION: demolition of the existing residential flat building and the construction of two dwellings and the subdivision of the dwellings - no issues pressed by the council - resident objections - floor space ratio - height - loss of views

Legislation Cited:

Environmental Planning and Assessment Act 1979

Cases Cited:

Tenacity Consulting v Warringah [2004] NSWLEC 140

Category:

Principal judgment

Parties:

Allanah Zitserman (Applicant)
Waverley Council (Respondent)

Representation:

Mr N Eastman, barrister (Applicant)
Ms C Morton, solicitor (Respondent)
Solicitors
Gadens Lawyers(Applicant)
Sparke Helmore (Respondent)

File Number(s):

10241 of 2012

Judgment

1. ACTING SENIOR COMMISSIONER: This is an appeal against the deemed refusal by Waverley Council of DA 599/2011 for the demolition of the existing residential flat building and the construction of two dwellings and the subdivision of the dwellings into Lots 1 and 2 at 17 Wonderland Avenue Tamarama (the site).

1. The Statement of Facts and Contentions categorised the proposed development as a dual occupancy development however the categorisation was amended by the council to the erection of two dwellings on the subdivided lots with a zero setback between the dwellings.

The site

1. The site is irregular in shape with a southern frontage to Wonderland Avenue of 23.47 m and a northern rear boundary of 8.915 m. The site area is 557.3 sq m. The existing development on the site consists of a two storey residential flat building with five garages excavated into the site with each having access directly from Wonderland Avenue. There is a fall of some 9.7 m to the Wonderland Avenue boundary from the rear.

Relevant planning controls

1. The site is zoned (2b) - Residential - Medium Density under Waverley Local Environmental Plan 1996 (LEP 1996). The proposed development is permissible with consent in this zone.

1. Waverley Development Control Plan 2010 (DCP 2010) applies.

The contentions

1. The council filed a Statement of Facts and Contentions that stated that the proposed development should be refused because the proposal was;

(1)   contrary to some aims of LEP 1996;

(2)   contrary to some objectives of the 2(b) zone;

(3)   incompatible with neighbouring houses, particularly in terms of view loss, height and scale;

(4)   incompatible with the streetscape of Wonderland Avenue;

(5)   excessive in relation to floor space ratio (FSR); and

(6)   inadequate in terms of side setbacks.

1. Following further discussions between the applicant and the council, and prior to the hearing, amended plans were prepared. The council's town planner Ms Kerry Gordon and the applicant's town planner Mr Andrew Darroch provided a joint report on the amended plans and concluded that there were no planning reasons to refuse development consent, despite the agreed breaches of the height and FSR requirements.

1. Notwithstanding the agreement by the town planning experts, the council's solicitor, Ms Morton advised the Court that she had no instructions to enter into an agreement under s 34(3)(a) or agree to the matter being dealt with by way of consent orders. Ms Morton advised that following the agreement of the town planning experts, the council did not wish to press any of the contentions previously identified but requested that the Court consider the concerns expressed by the residents on the site inspection in determining the appeal.

1. As the appeal was subject to mandatory conciliation and arbitration under s 34AA of the Land and Environment Court Act 1979 and as no agreement was reached the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with forthwith pursuant to s 34AA(2)(b)(i) on the basis of what occurred at the conciliation conference pursuant to s 34AA(2)(b)(ii).

Floor space ratio/ height/ view loss

1. In terms of the amended application, the experts agreed that the FSR requirement is 0.77:1 and the Lot 1 building has an FSR of 1.03:1 and the Lot 2 building has an FSR of 1.14:1. The height requirement is 7 m for wall height and an overall height of 8.5 m. The dwellings have a maximum wall height of 9.84 m and a maximum overall height of 13.28 m.

1. The principle concern of the residents related to the loss of views as the proposed development exceeded the height and FSR requirements. Properties in Wonderland Avenue and Illawong Avenue were inspected on the site view and observations made of the view impact based on the agreed diagrams showing the impact on views created by the original proposal and the amended proposal, from different parts of the dwellings.

1. As I understand, the approach adopted by the planning experts was that notwithstanding the breach of the height and FSR requirements, the impact on views, particularly from 19A Wonderland Avenue was acceptable as, firstly, the area that created any view loss is not directly related to the maximum breach of the height control, secondly, cl 5.1 of the DCP 2010 provides the opportunity to vary the building height requirements and thirdly, the height of the building (as required by DCP 2010) is effectively an artificial height given that it is measured from the existing excavated garage level on the site (or the "existing ground level"

as defined) and not what would normally be regarded as the natural level of the land, that is, pre-development.

1. If considered in this context and with the benefit of the site inspection and the view loss diagrams, I accept the conclusions of the experts. In coming to this conclusion I acknowledge that the planning principles in Tenacity Consulting v Warringah [2004] NSWLEC 140 (at par 29) raise the valid question of view loss from a non-complying building, where it states:

.......A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable.

1. However, in this case, I accept the view loss from the amended proposal is minor at best from 19A Wonderland Avenue and even less for other potentially affected properties.

Bulk

1. The issue of bulk from the proposed roof form was raised by the owner of a property in Illawong Avenue however given the generous separation between the buildings, the non-compliance of about 600 mm in height when viewed from this location and the minor impact on view loss, I am satisfied that the bulk of the roof form would not be a sufficient reason to refuse the application. I also note that the roof form has a similar height to the existing building at 19A/19B Wonderland Avenue.

Orders

1. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. DA/-599/2011 for the demolition of all improvements and construction of 2 dwellings buildings with subdivision at 17 Wonderland Avenue Tamarama is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibit A.

G T Brown

Acting Senior Commissioner

Amendments

20 June 2012 - Applicants name amended.

Amended paragraphs: Judgment Coversheet

Decision last updated: 20 June 2012