777 OSH Pty Ltd v Waverley Council [2010] NSWLEC 138

Land and Environment Court of New South Wales

CITATION : 777 OSH Pty Ltd v Waverley Council [2010] NSWLEC 138

APPLICANT: 777 OSH Pty Ltd PARTIES : RESPONDENT: Waverley Council

FILE NUMBER(S) : 10342 of 2010

CORAM: Biscoe J

KEY ISSUES: DEVELOPMENT CONSENT :- deemed refusal - mixed development - appeal allowed and development consent granted.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97(1)

CASES CITED: Iris Diversified Property Pty Ltd v Randwick City Council [2010] NSWLEC 58, 173 LGERA 240

DATES OF HEARING: 30 July 2010

DATE OF JUDGMENT: 30 July 2010

APPLICANT: Ms S Hill SOLICITORS: Susan Hill and Associates LEGAL REPRESENTATIVES: RESPONDENT: Mr S Patterson SOLICITORS Wilshire Webb Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Biscoe J

30 July 2010

10342 of 2010 777 OSH Pty Ltd v Waverley Council

JUDGMENT 1 His Honour: This is an appeal under section 97(1) of the Environmental Planning and Assessment Act 1979 against the deemed refusal by Waverley Council of a development application which proposed alterations and additions to an existing building and change of use from a conference centre to a mixed use development. 2 I acknowledge the assistance of Commissioner Morris. 3 Initially, the proceedings involved an issue in relation to whether existing use rights applied to the property. However this is not pressed and, therefore, only the merits of the application remain to be determined. 4 The issues between the parties have been resolved and they are seeking consent orders from the Court allowing the appeal and granting development consent subject to conditions. 5 The property is known as 773-777 Old South Head Road, Vaucluse and is on the eastern portion of Old South Head Road opposite the intersection of New South Head Road. It is zoned 3(c) Business Neighbourhood under the provisions of Waverley Local Environmental Plan 1996 (the LEP). 6 It is the only parcel of land that is zoned Business Neighbourhood, the surrounding land being zoned Residential 2(c1). 7 The property is made up of two separate lots and contains a 3 storey building with basement car parking and a swimming pool. The land is irregular in shape with a frontage to Old South Head Road of 20.17 metres, a northern frontage of approximately 35.64 metres facing Christison Park and a southern boundary of 50.155 metres while the eastern boundary is 15.045 metres. The total area is 618.7 square metres. The land falls towards Old South Head Road and is located at the lowest level of the adjoining local business centre. Current development comprises a three storey building with basement car parking and a rooftop containing a range of telecommunication towers. The parties agree that the existing development is visually unattractive. 8 The property is not listed as an item of heritage significance and is not within a heritage conservation area and is not located within a residential character study area of the respondent. 9 Adjoining the site to the north is Christison Park. To the south and at the rear are residential flat buildings and small scale shop/commercial premises. To the east are a mix of residential flat buildings and dwellings, Clarke Reserve and the Ocean. To the West across Old South Head Road are low scale residential dwellings. 10 The adjoining residential development contains a mix of single story residential dwellings up to high-rise residential flat buildings. The predominant residential zoning in the locality is Residential 2(c1) which, according to the expert planners, permits residential flats up to a maximum wall height of 9.5 metres and an overall maximum height of 12.5 metres incorporating a potential fourth level comprising an attic or part storey subject to compliance with relevant planning controls.