Land and Environment Court of New South Wales CITATION : Colonial State Properties Pty Ltd v Willoughby City Council [2005] NSWLEC 678 APPLICANT Colonial State Properties Pty Limited PARTIES : RESPONDENT Willoughby City Council FILE NUMBER(S) : 10749 of 2005 CORAM: Tuor C Development Application :- Residential Flat Building Impact on adjoining property SEPP 1 objection floor space ratio KEY ISSUES: whether site area includes land zoned for road reservation Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No 1 Willoughby Local Environmental Plan DATES OF HEARING: 21/11/2005 EX TEMPORE JUDGMENT DATE : 11/21/2005 APPLICANT Mr S. Kondilios, solicitor of Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr A. M. Pickles, barrister SOLICITORS Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 21 November 2005 10749 of 2005 Colonial State Properties Pty Limited v Willoughby City Council JUDGMENT 1 This matter comes before the Court as consent orders between Colonial State Properties Pty Limited and Willoughby City Council (the council). The appeal is in relation to the refusal by the council of a development application for a residential flat building at 110 Victoria Avenue, Chatswood (the site). 2 In accordance with the Court's Practice Direction 23, the opportunity is provided for any person who has objected to the proposal to seek leave to be heard in the Court's consideration of a request for consent orders. In this regard I heard evidence on site from Mr Curran of Unit 2, 7-13 Kooringa Road, Chatswood. Mr Curran's main concerns was the impact on solar access to his open space. 3 Willoughby Development Control Plan 15 (DCP 15) provides that a minimum of three hours solar access should be maintained between 9 and 3 in midwinter to north facing windows and living areas and the principal portion of recreational open space. Ms Laidlaw, the Court appointed planning expert's evidence was that this control was met. She considered the terrace area off the living room to be the principal portion of open space to Unit 2, which would maintain solar access from midday onwards in midwinter. 4 Mr Curran also raised concerns about the proposal's non-compliance with floor space ratio (FSR), site coverage, landscaped area and setback controls contained in the council's planning instruments. These matters were issues between the parties but have been resolved by the submission of amended plans in response to Ms Laidlaw's preliminary report. 5 The non-compliance with the planning controls results from whether the site includes the area of land zoned 5(d) Road Reservation under Willoughby Local Environmental Plan (the LEP). I accept Ms Laidlaw's evidence and the submissions of both advocates that it is appropriate that the area of the road widening be included in the site area. On this basis there is general compliance with the planning controls. 6 The non-compliance with the fsr control is about 0.1:1. The applicant has submitted a SEPP 1 objection which states that the additional floor space is within an attic roof form and consequently the non-compliance does not result in any additional bulk and scale and meets the objectives of the standard. Ms Laidlaw agreed that the bulk of the development was not markedly different from that to be expected by a development which complied with the fsr standard. I accept Ms Laidlaw's evidence that the SEPP 1 objection is well founded. 7 On this basis I am satisfied that the consent orders sought by the parties may be granted. 8 The orders by consent are: 1. The appeal is upheld. 2. The development application No 0314/2005 lodged on 29 April 2005 for the demolition of existing dwelling house structures within Lot 1 in Deposited Plan 934946, Lot 21 in Deposited Plan 976882 and Lots 1 and 2 in Deposited Plan 980474 and the construction of a 20 dwelling residential flat building including basement car parking and ancillary landscaping and services, be approved subject to the attached conditions marked "Annexure A". 3. The exhibits except exhibits A and 2 may be returned. 4. Each party to bear its own costs. ___________________ 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. 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.