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. 7 The property provides open space on its rooftop as well as in the rear area. The proposal will provide private open space for other units and as such will improve the amenity of these units. On balance, Mr Newbold considered the non-compliance with the open space control met the objectives of the control. 8 The key issue in the proceedings, although not originally identified in the Statement of Issues, is the impact on the study of 206 Hastings Parade. As this issue arose late in the proceedings discussions have now occurred between the applicant and the adjoining neighbour, which indicate that the amenity of the study could be substantially improved by providing a window on its eastern façade, which would provide greater views and unimpeded solar access. However in the short time available this option has not been able to be progressed. 9 Mr Newbold's assessment of the impact of the current proposal on 206 Hastings Parade, is that it has a marginal impact on solar access and view loss but that this needs to be weighed against the non-compliance of the proposal with the planning controls, including the 3m setback control. To preserve the existing status quo of the apartments would involve setting back the corner of the proposed development (approximately 3.5 m from the boundary). Mr Newbold's raised concerns about the impact that this change would have on the useability of the proposed space, but proposed an amendment of a splayed setback. 10 I accept Mr Newbold's opinion in relation to the rear setback, FSR and bulk issues. The proposed addition will provide considerable amenity to an existing building that already does not comply with the planning controls. The addition results in a marginal increase in bulk but meets the intentions of the controls. 11 If the proposal complied with the controls the impacts on the adjoining property would also be acceptable because of the nature of the use of the room and the degree of solar access to be lost. The impact on the views would also be a marginal impact given that there are extensive views from the rear of the property. However, these impacts are not reasonable given that they are a result of non compliance with the planning controls and there are changes which can be made that will go someway to mitigating the impacts. Particularly, the oblique view from the living area through the study could be maintained whereas under the current proposal it is eliminated altogether. 12 The proposed amendment involves a rear setback from the boundary of approximately 2.25 m in a splayed form. This will reduce the impact on views and marginally improve solar access. 13 With the amendment there will still be an impact on the adjoining property, however, this impact is of an extent that is consistent with the planning controls recognising that it is an existing building and the constraints of the site. On this basis the appeal is upheld. Order 14 The Orders of the Court are: 1. The appeal is upheld. 2. The development application for alterations and additions to 204 Hastings Parade, North Bondi is approved subject to the conditions in Annexure 'A' 3. Exhibits, except for Exhibits A, B and C are returned. ___________________ Annelise Tuor Commissioner of the Court ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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