Lufi & Associates Pty Ltd v Waverley Council [2006] NSWLEC 296

Land and Environment Court of New South Wales

CITATION : Lufi & Associates Pty Ltd v Waverley Council [2006] NSWLEC 296

APPLICANT Lufi & Associates Pty Ltd PARTIES : RESPONDENT Waverley Council

FILE NUMBER(S) : 11372 of 2005

CORAM: Bly C

KEY ISSUES: Development Application :- Demolition of existing dwelling, construction of 2-storey townhouse, overshadowing, height, floor space ratio, solar access, off-street carparking, loss of visual and acoustic privacy, loss of views, streetscape

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Waverley Local Environmental Plan 1996 Waverley Council Development Control Plan No 2 – Dwelling House and Dual Occupancy Development.

DATES OF HEARING: 26/05/2006

EX TEMPORE JUDGMENT DATE : 05/26/2006

APPLICANT Mr R. O'Gorman Hughes, barrister Instructed by Bray, Jackson & Co LEGAL REPRESENTATIVES:

RESPONDENT Mr M. Staunton, solicitor of Staunton Beattie

JUDGMENT: - 4 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

26 May 2006

11372 of 2005 Lufi and Associates Pty Ltd v Waverley Council

JUDGMENT This decision was given extemporaneously. It has been revised and edited prior to publication. 1 This appeal relates to Development Application No. 622/05 which is for the demolition of an existing dwelling house and the construction of a 2-storey dual occupancy development with a semi-basement carpark at No. 5 Alexander Street, Tamarama. The site comprising Lot 10 DP 10118 is rectangular in shape with a front boundary of 12.19 m and an area of about 446 sq m. 2 The locality is generally developed with detached dwelling houses, 2-storey townhouses and residential flat buildings of 3 and more storeys. Adjoining the site to the north is a 4 level residential flat building and to the south a 2-storey townhouse development. 3 The site is included in the Residential 2(b) zone under Waverley Local Environmental Plan 1996 ("the LEP") in which zone the proposal is permissible with development consent. The objectives of the 2(b) zone provide for the introduction of a variety of housing forms including dwelling houses, residential flat buildings, townhouses and boarding houses, and require the maintenance and improvement of the amenity and existing characteristics of the locality. 4 Clause 10(2) of the LEP requires that consent shall not be granted unless the development under consideration meets one or more of the objectives of the zone. The proposal meets objective (a) of the zone that and this requirement is met. There are no relevantly applicable development standards in the LEP. Also applicable to the site is Waverley Council Development Control Plan No 2 – Dwelling House and Dual Occupancy Development ("the DCP"). This DCP relevantly contains standards relating to building height, site area, floor space ratio, setbacks and solar access. 5 In relation to building height I am satisfied that the proposal meets the various applicable requirements as well as the setback requirements. However the proposal having a floor space ratio of slightly over 1:1.1 exhibits a significant non-compliance with the maximum floor space ratio requirement, which is 0.61:1. 6 The DCP also contains solar access requirements in relation to neighbouring properties to the effect that the windows of adjoining properties, should not have their solar access reduced to less than two hours per day in mid winter. In this regard the overshadowing of the neighbouring townhouse development is variously affected such that some windows would no longer meet this requirement. 7 The application was advertised and 12 objections were received. Expressed concerns in relation to the proposal include insufficient off-street carparking, the creation of a wind tunnel for the adjoining development to the north, non-compliance with various Council controls, loss of visual and acoustic privacy, loss of views, loss of solar access and adverse impacts on the streetscape. 8 The hearing was conducted as an on-site hearing and the Court heard from eleven of the residents who explained in some detail their concerns that had previously been expressed in their letters to the Council. The Court also had the benefit of visiting some of these resident's homes to understand their concerns. 9 The appeal was lodged with the Court on the basis of a deemed refusal. The Statement of Issues identified a number of issues which are in essence: