Solitarii Developments Pty Limited v Waverley Council [2006] NSWLEC 655

Land and Environment Court of New South Wales

CITATION : Solitarii Developments Pty Limited v Waverley Council [2006] NSWLEC 655

APPLICANT: PARTIES : Solitarii Developments Pty Limited RESPONDENT: Waverley Council

FILE NUMBER(S) : 10474 of 2006

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Acoustic privacy Public Interest

Waverley Local Environmental Plan 1996, (WLEP) LEGISLATION CITED: State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development, (SEPP65) Environmental Planning and Assessment Act 1979, ss 79C and 97

DATES OF HEARING: 16/10/2006

EX TEMPORE JUDGMENT DATE : 10/16/2006

APPLICANT: Mr P R Rigg, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Deacons RESPONDENT: Mr S Patterson, solicitor SOLICITORS: Wilshire Webb

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

16 October 2006

10474 of 2006 - Solitarii Developments Pty Limited v Waverley Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Waverley Council (the council) of a development application to demolish the existing building, to construct a new mixed-use building with car parking and to strata subdivide at Lot 27, DP 5953 and Lot 1, DP 315776 being No 26 Hall Street, Bondi Beach. 2 The hearing was held on-site and in company with the parties I inspected the land. 3 I have concluded that the recommendations of Mr Chambers the Court-appointed town-planning expert should be further amended having regard to the submissions of the residents that attended the on-site hearing. The land 4 The land is situated on the southern side of Hall Street between Jaques and Consett Avenues. The existing two-storey building has commercial uses at the ground floor level and commercial storage and a residential unit above. The rear portion of the land is an open car parking area with access from a driveway along the eastern side boundary. Westpac Bank occupies the ground floor commercial area. 5 The locality is characterised by a mixture of ground floor retail and office uses with first floor residential units of various architectural styles. Abutting to the east and located on the corner of Jaques Avenue is the Bondi Beach Post Office, which is a heritage-listed building. Abutting to the west is a three-storey commercial and residential building. The properties to the rear comprise single dwellings, one to the south west at No 15 Consett Avenue is another heritage listed building, and residential flat buildings. Relevant planning controls Waverley Local Environmental Plan 1996, (WLEP) 6 Under the provisions of the WLEP the land is zoned 3(a) Business General of and the proposal is permissible with consent. State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development, (SEPP65) 7 SEPP65 seeks to achieve 'good design' for residential flat buildings over a certain size. Some of the early sections: 3 Definitions (1) In this Policy: design quality principles means the design quality principles set out in Part 2. design review panel means a panel constituted under Part 3. master plan has the same meaning as in clause 92A of the Environmental Planning and Assessment Regulation 2000. residential flat building means a building that comprises or includes: (a) 3 or more storeys (not including levels below ground level provided for car parking or storage, or both, that protrude less than 1.2 metres above ground level), and (b) 4 or more self-contained dwellings (whether or not the building includes uses for other purposes, such as shops), but does not include a Class 1a building or a Class 1b building under the Building Code of Australia. Note. Class 1a and Class 1b buildings are commonly referred to as town houses or villas where the dwelling units are side by side, rather than on top of each other. residential flat development means development to which this Policy applies because of clause 4. the Act means the Environmental Planning and Assessment Act 1979. (2) Notes in this Policy do not form part of it.