Elliott v Waverley Council [2005] NSWLEC 74

Land and Environment Court of New South Wales

CITATION : Elliott v Waverley Council [2005] NSWLEC 74

APPLICANT Elliott

PARTIES : RESPONDENT Waverley Council

FILE NUMBER(S) : 11230 of 2004

CORAM: Tuor C.

Development Application :- New dwelling - deferred commencement conditions bulk and scale KEY ISSUES: excavation privacy impacts and outlook from adjoining properties

LEGISLATION CITED: Waverley Local Environmental Plan 1996

CASES CITED: Tenacity Consultancy v Warringah Council (2004) NSWLEC 140

DATES OF HEARING: 09/02/2005 EX TEMPORE JUDGMENT DATE : 02/10/2005

APPLICANT Mr C McEwen, SC SOLICITORS LEGAL REPRESENTATIVES: Spiegel & Associates

RESPONDENT Mr S Patterson, solicitor Wilshire Webb

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

10 February 2004

11230 of 2004 Elliott v Waverley Council

JUDGMENT

1 This is an appeal against the deferred commencement conditions imposed by Waverley Council (the council) for a development application (556/03) to construct a house at 532 Bronte Road, Bronte. The development application, approved on 13 September 2004, was described in the Notice of Determination as "to demolish the existing dwelling and erect a new two storey dwelling with double garage basement and attic levels". 2 The deferred commencement conditions in dispute between the parties, which I have numbered for ease of reference, are: (1) the basement areas forward (to the east) of the proposed laundry shall be deleted and the extent of excavation reduced correspondingly; (6) the roof deck be deleted and the roof not be accessible from the study; (7) the eastern front cantilever of the first floor level be reduced by 1.2 m from the base of the building; (8) the ground floor dining, living and external deck areas be lowered to as close as possible to the eastern garden ground level. 3 Ms D Laidlaw, the Court appointed planning expert, prepared a Statement of Evidence which reviewed the development and the proposed conditions. Ms Laidlaw's report suggested certain matters be addressed and concluded that the development then had an acceptable impact. 4 The applicant prepared amended plans that addressed the deferred commencement conditions not in dispute and matters raised by Ms Laidlaw. 5 The site is in a highly prominent location adjacent to the Bronte tram cutting, Calga Reserve and the coastal walkway. It has a frontage to Bronte Road of approximately 6m and a depth of approximately 47m with an area of 243sqm. It is developed with a single storey house. The eastern end of the site narrows to follow the curve of the tram cutting. An unformed public walkway adjoins the site to the south and the east above the sandstone rock face of the tram cutting. 6 Adjoining the site to the north is a single storey house. The character of the area is predominantly one and two storey houses on larger allotments than the subject site. 7 The site is zoned Residential 2(a) under Waverley Local Environmental Plan 1996 (LEP1996). The proposal is permissible with consent. The tramway cutting is identified as a landscape heritage item under the LEP. 8 Development Control Plan No 2 - Dwelling House Development (DCP) is also relevant. This permits a floor space ratio (FSR) of 0.84:1; a wall height of 7.5m; an overall height of 9.5m, minimum side setbacks of 900mm and front and rear setbacks that are consistent with adjoining buildings. A draft DCP is currently being prepared but the parties agreed that this could be given little weight. 9 The Court undertook a site inspection and heard evidence from the following residents: § Mrs J Barett, 526 Bronte Road; § Mrs J Grieve, 530 Bronte Road; § Mrs C Panterier, 522 Bronte Road; § Ms V Milson, on behalf of the Bronte Beach Precinct Committee; § Ms L Main, a Waverley councillor speaking as a resident; and § Mr S Hall, 510 Bronte Road. 10 The residents raised general issues about the impact of the development when viewed from the coastal walkway and Calga Reserve. They considered it to be an overdevelopment of the site due to part of the basement level being above ground, the rooftop study and its adjoining terrace and the cantilevered projection of the first floor towards the east. 11 The residents also raised concerns about the extent of excavation of the site to provide the basement accommodation. They considered this to be unacceptable as it added to the bulk of the building, may cause damage to adjoining properties and would adversely impact upon the amenity of residents and users of the coastal walkway during construction. 12 Excavation was the main concern of the adjoining resident Mrs J Barrett, particularly as she and her husband are virtually housebound due to their mobility. Mrs Grieve was also concerned about the extent of excavation and the resultant noise and potential for damage. Mrs Grieve's other concerns were privacy and the change of outlook from her kitchen window and second bedroom. 13 In relation to bulk and scale of the development, its impact on adjoining properties and the public domain, Ms Laidlaw considered that the floors above ground complied with the FSR control. The area of the basement below ground was excluded from FSR calculations by virtue of the definition of gross floor area, which excluded "any other areas that do not contribute to the bulk of the building". A small triangular part of the basement projected above ground level and in Ms Laidlaw's opinion added to the bulk of the building and was, therefore, technically part of the FSR calculation. However, she stated that: