Land and Environment Court of New South Wales CITATION : Woniora Investments v Waverley Council [2005] NSWLEC 679 APPLICANT Woniora Investments Pty Limited PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10403 of 2005 CORAM: Brown C Appeal :- Consent Orders KEY ISSUES: LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 17/10/2005, 17/11/2005 EX TEMPORE JUDGMENT DATE : 11/17/2005 APPLICANT Mr G. Green, solicitor SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr S. Brockwell, barrister SOLICITORS Staunton & Beattie Solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 17 November 2005 10403 of 2005 Woniora Investments Pty Limited v Waverley Council JUDGMENT 1 This matter comes before the Court for Consent Orders in relation to the demolition of an existing building and the erection of a multi unit residential development at 11 Kenneth Street, Tamarama 2 The site currently contains a part 2 and part 3 storey building stepped down the site. The building contains 14 boarding house rooms and a manager's unit at the upper level. The rear boundary adjoins a coastal reserve and forms part of the coastal walk between Bondi and Tamarama beaches. 3 The proposed part 2 and part 5 storey building will comprise 5 x 3 bedroom apartments and 10 carparking spaces on 2 basement levels accessed via a car lift. 4 The subject site is and has a frontage of 12.19 m and a depth varying between 46.247 and 46.202 m giving a total site area of 563 sq m. 5 In accordance with the Court's Practice Direction an objector to a proposed development may be heard in the Court's consideration of the Consent Orders. In this regard Mr Sid Griff of No. 12 Kenneth Street and Mr Anthony Betros, a town planner, on behalf of the owners of the residential flat building adjoining the subject site to the east at 15 Kenneth Street, sought to be heard. 6 In consideration of the Consent Orders, the Court had the benefit of expert evidence from: + Mr Andrew Darroch, a town planner for the applicant, + Mr Philip Ball, a town planner for the council, and + Mr Andrew Stanic, the council appointed urban design expert. 7 While originally opposing the application Mr Ball supported the Consent Orders following the submission of amended plans. Mr Stanic also supported the amended plans; a number of the changes occurring from his consideration of the proposal. 8 The proposed development was in breach of a significant number of the development controls in council's DCP 1 although all the experts, including Mr Betros, accepted that strict compliance was not necessary taking into account the existing building on the site and its context. Unfortunately, the Court was not provided with a compliance table or council report on the most recent plans although the evidence of Mr Stanic addressed the departures. 9 While making this concession Mr Betros stated that in his opinion the departures were excessive and adversely impacted on the building at 15 Kenneth Street. His particular concerns related to loss of views, visual and aural privacy, inadequate setbacks, inadequate solar access and lack of landscaping. 10 Mr Griff raised the non-compliance with the council planning controls and specifically the increase in height and loss of views from his property on the opposite side of Kenneth Street. 11 In considering the concerns the Court undertook a view on the first day of the hearing. The property at Kenneth Street was inspected from a number of different units and an estimate made of the location of the proposed building. 12 In the consideration of the Consent Orders the Court is being asked to not require strict compliance with the council's planning controls and adopt a more merit based assessment of the development application. If considered in this context I accept that the proposed development is acceptable and the Consent Orders should be made. 13 I am not convinced that the matters raised by Mr Betros warrant the further amendment of the application for a number of reasons. In my view, the 12.192 m width of the site is a significant mitigating factor in some of the matters raised by Mr Betros. Setbacks that flow from the Residential Flat Design Code in SEPP 65 clearly cannot be achieved on the site, as there would be virtually no land for development. This clearly reflects on the ability to provide landscaping and provide a separation between buildings for aural and visual privacy. 14 I accept that the use of screens achieves a satisfactory means of addressing visual privacy. Even with the additional setback suggested by Mr Betros, I do not accept there will be any noticeable changes to aural privacy between the buildings. While some courtyards are proposed in the side setback areas I have little doubt that there use will be limited as most recreational activities will occur on the south facing balconies with their panoramic ocean views. 15 In relation to views, the site view indicated that some existing views will be lost in parts of the building such as from the kitchen windows, however, other views will be increased. On this basis I accept that view loss is not an issue that would warrant the Court not agreeing to Consent Orders. Similarly, the impact on overshadowing from the proposed building is not dissimilar to the current shadowing and would not be a reason to not agree to the Consent Orders. 16 The issue of solar access must be addressed in the context of the lot size and orientation and the panoramic views available to the south. It would be unrealistic to expect any development of the site not to address the southerly views, albeit at the expense of better solar orientation. I accept that the design adequately addresses solar access to the units in this context. 17 Mr Griff's general concerns are addressed in the preceding paragraphs with the exception of his concern over the height of the building. As I understand his views across Kenneth Street will in fact be improved, as the building at the street frontage will be lower than the existing building although not necessarily complying with the height requirement in DCP 1. 18 Of the conditions proposed by the council only conditions 4(b) and 22 are in dispute. 19 Condition 4(b) relates to the affordable housing contribution and the issue between the parties relates to whether the payment should be at the construction certificate or strata certificate stage or the occupation certificate stage. I accept the applicant's submission that it is appropriate that the contribution be made at the occupation certificate stage. 20 Condition 22 requires the construction of a sandstone wall. The council seeks a solid wall whereas the applicant proposes a sandstone clad wall. As there will be little visual difference considering the proposed landscaping in front of the wall I accept the applicant's version of the condition. 21 There being no substantive reasons why the Consent Orders should not be granted I make the following orders: 22 By consent, 1.The appeal is upheld. 2. Development Application 142/2004 for the demolition of an existing building and the construction of a multi-unit housing development at 11 Kenneth Street, Tamarama, is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 2, 8 and A. ___________________ G T Brown 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. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.