Seskin v Waverley Council [2006] NSWLEC 495

Land and Environment Court of New South Wales

CITATION : Seskin v Waverley Council [2006] NSWLEC 495

APPLICANT Abraham Seskin PARTIES : RESPONDENT Waverley Council

FILE NUMBER(S) : 10356 of 2006

CORAM: Tuor C

Development Application :- alterations and additions KEY ISSUES: non compliance with rear setbacks, floor space ratio and landscape area impact on adjoining property

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 2000

DATES OF HEARING: 8/08/2006

EX TEMPORE JUDGMENT DATE : 08/08/2006

APPLICANT Ms J. Reid, solicitor of Pike Pike and Fenwick LEGAL REPRESENTATIVES:

RESPONDNET Mr S. Patterson, solicitor of Wilshire Webb

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

8 August 2006

10356 of 2006 Abraham Seskin v Waverley Council

JUDGMENT 1 This is an appeal against the refusal by Waverley Council (the council) of a development application for alterations and additions at 204 Hastings Parade, North Bondi (the site). 2 The issues before the Court relate to non-compliance with rear setbacks, floor space ratio (FSR) and built upon area or landscape area controls in council's controls. 3 Mr Brett Newbold, the Court-appointed expert, examined the proposal and raised an additional concern about the proposal's impact on the adjoining property, 206 Hastings Parade, in terms of views and solar access. This property enjoys extensive views from its bedroom at the rear of the property and the study, which is an ancillary room off the living area. There are views through the study to the water from a standing position. The views from the study itself are mainly from a standing position. 4 Mr Newbold assessed the issues of non compliance with rear setbacks, bulk and landscape area as well as the issues of the impact on the adjoining property. In his opinion the proposal would provide considerable amenity to the occupants and is a reasonable proposal given that it is an existing building and the degree of impact. 5 In Mr Newbold's opinion the rear setback controls did not apply to residential flat buildings. He stated that the purpose of a rear setback control in this location is to relate to the "meandering nature of the cliff face" in order to provide sufficient space between the building and the cliff face and to minimise impacts of overlooking, privacy, solar access etc., on adjoining properties. In his opinion, the single storey addition met the intent of the rear setback control. 6 The FSR of the existing building is approximately 1:1 and the control is 0.6:1. The FSR of the proposal is estimated at 1.04:1. In Mr Newbold's opinion the impact of the increased FSR was acceptable as the proposal is a single storey addition and it would not have a perceptible impact on bulk.