Bassett & Jones Architects v Waverley Council [2006] NSWLEC 69

Land and Environment Court of New South Wales

CITATION : Bassett & Jones Architects v Waverley Council [2006] NSWLEC 69

APPLICANT: PARTIES : Bassett & Jones Architects RESPONDENT: Waverley Council

FILE NUMBER(S) : 11126 of 2004

CORAM: Watts C at 1

KEY ISSUES: Development Consent :- Non-compliance with floor space ratio and height and Amenity impacts

LEGISLATION CITED: Waverley Local Environmental Plan 1996, (WLEP) Environmental Planning and Assessment Act 1979, s79C and 96(6)

CASES CITED: North Sydney Council v Michael Standley & Associates (1987) 97 LGERA 443

DATES OF HEARING: 13/12/2005; 17/01/2006; 18/01/2006

DATE OF JUDGMENT: 02/21/2006

APPLICANT: Ms M-L Taylor, solicitor SOLICITORS: Norman Waterhouse LEGAL REPRESENTATIVES: RESPONDENT: Mr S Brockwell, barrister, instructed by Mr S Patterson, solicitor SOLICITORS: Wilshire Webb

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

21 February 2006

11126 of 2004 (s 96) - Bassett & Jones Architects v Waverley Council

JUDGMENT

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Waverley Council (the council) of a modification application relating to a Court-approved development to partially demolish an existing pair of semi-detached shops and to erect a mixed commercial and residential development at Lot 27, DP 192094, being No 129 Macpherson Street, Bronte. The application had been lodged under s 96AA of the Act. 2 I visited the land in company with the parties on the morning of the proceedings and on that occasion I heard from concerned local residents. 3 I have concluded that the application when considered under s 79C of the Environmental Planning and Assessment Act 1979, should fail for reason of the adverse amenity impacts of the increased height and inadequate side setbacks. The land 4 The land is situated on the southern side of Macpherson Street and is rectangular in plan, with an area of 558m2. The land has a frontage to Macpherson Street of 12.19m side boundaries of 45.72m and to Chesterfield Lane at the rear of 12.55m. Erected on the land is a pair of two-storey semi-detached shops with residences above. 5 Mixed-use developments with ground floor commercial tenancies and residential uses above predominate. Other development nearby includes residential, generally comprising one to two-storey detached dwelling houses. At No 127 Macpherson Street to the west of the land is a two-storey building comprising shops and 'Holiday Flats'. At Nos 133-135 Macpherson Street there is a three-storey brick building with medical suites on the ground floor and apartments above. This building is said to comply with the 9m-height limit under the environmental planning instrument. Relevant planning controls Waverley Local Environmental Plan 1996, (WLEP) 6 Under the provisions of the WLEP the land is zoned and the proposal is permissible with consent. 7 Other planning controls include: · State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development; · Development Control Plan No. 9 - Community Crime Prevention; · Development Control Plan No. 14 - Bicycle and Car Parking; · Development Control Plan No. 26 - Access for People with Disabilities; · Development Control Plan No. 29 - Advertising and Notification of Development Applications. The proposal and its history 8 The proposal includes the following changes from the proposal that was granted consent by the Court: · the construction of an additional storey to the approved front building which alters the front building from three-storeys to four-storeys; · the provision of a zero side setback for a part of the external side walls at all three levels; and · construction of a blade wall and columns at the sides of the ground floor level shop. Original development application history 9 The original Court-approved development application involved: The construction of three (3) building forms within the lot: · The first building form fronting Macpherson Street contains one commercial tenancy and 2 x three bedroom units over three storeys. This building has a height of four storeys. · The middle building form is three storeys in height and contains 2 x three bedroom apartments. · The rear building form also contains 2 x one-bedroom apartments within 2 storeys. · The basement level contains 8 parking bays, bicycle parking and garbage and storage areas.