Brittain v Waverley Council [2010] NSWLEC 1077

Land and Environment Court of New South Wales

CITATION : Brittain v Waverley Council [2010] NSWLEC 1077

APPLICANT Sue Brittain PARTIES : RESPONDENT Waverley Council

FILE NUMBER(S) : 10982 of 2009

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- demolition of all existing structures and the construction of an attached dual occupancy dwelling with strata subdivision - floor space ratio - bulk - overshadowing - tree loss - whether proposal has appearance of a single dwelling

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006

DATES OF HEARING: 31 March 2010

EX TEMPORE JUDGMENT DATE : 31 March 2010

APPLICANT Mr G Green, solicitor SOLICITORS Pikes Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms C Morton, solicitor SOLICITORS Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

31 March 2010

10982 of 2009 Sue Brittain v Waverley Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Waverley Council (the council) of Development Application No. 146/2009 for the demolition of all existing structures and the construction of an attached dual occupancy dwelling with strata subdivision at 49 Gardyne Street, Bronte (the site). 2 The contentions identified by the council relate to the bulk and scale of the proposed development through the exceedance of the floor space ratio (FSR) requirements, the unacceptable impact on the character of the area, the impacts of the proposed vertical car stacker and the public interest. Additional matters raised the hearing relate to the loss of an existing tree, overshadowing and whether the proposed development would have the appearance of a single dwelling from the street. 3 The matter was originally to be heard as a Court hearing however the parties agreed that given the limited number of contentions, the matter could be heard as an On Site hearing. The judgement reflects the matters contained within the Statement of Facts and Contentions, tendered documents and the reasons given on-site for the approval of the proposed development. The site 4 The site is Lot 26 in DP 9777743. It is irregular in shape with a 4 m wide access handle to St Thomas Street. The site has a splayed frontage of 17.2 m to Gardyne Street and a depth varying between 31.1 m on the southern boundary to 49 m on the northern boundary. The total site area is 491 sq m. 5 The site is occupied by a single storey Californian-style bungalow cottage. The surrounding area comprises predominantly residential development of one and two-storey construction with older style dwellings, some with major alterations and additions and new dwellings. The dwellings reflect the relatively steep topography of the area. Relevant planning requirements 6 The site is zoned Residential 2(a) - Low Density under Waverley Local Environmental Plan 1996 (LEP 1996). The proposed development is permissible with consent within this zone. Clause 10(2) provides that consent shall not be granted unless the consent authority is satisfied that the development meets one or more of the objectives of the zone. The council raised no issue with satisfaction with this requirement. 7 Waverley Development Control Plan 2006, Part D1 - Dwelling House and Dual Occupancy Development–(Amendment No. 4) (the DCP) applies. Clause 4 addresses the Bronte Residential Character Study. The site falls within the Bronte Terraces Precinct. Section 4.4 provides objectives for this precinct and relevantly objectives for landscaping. These objectives include "minimising the loss of sloping landscaping, exposed bedrock, sandstone retaining walls and important remnant mature landscape species". 8 Control 5.1.2a provides for a height of 7.5 m for a flat roof construction. The proposed development has a maximum height of 7.8 m at part of the northern elevation with the remainder of the building satisfying the 7.5 m requirement. Control 5.1.3a requires a FSR of 0.55:1. The proposed development does not satisfy this requirement having an FSR 0.72:1. 9 Clause 5.2 provides objectives relating to the size and bulk of dual occupancy development. The objectives are: ( a) To ensure that new dwellings and alterations and additions to existing dwellings are of an acceptable size and bulk in relation to the size and shape of the allotment; (b) To ensure there is no overdevelopment of sites; (c) To ensure that any negative impacts on residents living in buildings on adjoining or nearby allotments are minimised and wherever possible, it eliminated; (d) To ensure that dwelling houses and dual occupancy development adds to and does not detract from the existing streetscape and character of the area; and (e) To ensure that the bulk of dwellings is in character with surrounding development. 10 Control 5.4.2a requires that: Attached dual occupancy developments have the appearance from the street of a single dwelling. The evidence 11 Mr Kerry Nash provided evidence for the council and Mr Anthony Betros provided evidence for the applicant. Their evidence can be grouped into the following main areas: Floor space ratio /bulk /overshadowing 12 Mr Nash accepts that strict compliance with 0.55:1 FSR requirement is unreasonable given the form of surrounding development. He states that greater compliance with the FSR requirement could be achieved by two changes to the proposed development. Firstly, reducing the building in height. In his assessment, the building could be reduced in height by around 600 mm. This would necessitate a step in the floor level at the rear of one of the dwellings but would improve the appearance from street. Secondly, increasing the setbacks on the southern side of the proposed building to increase the solar access to the adjoining development at 2A St Thomas Street. Mr Nash states that the 1.9 m setback on part of the southern elevation should be extended for the full length of the dwelling where the setback is 900 mm. This has the effect of reducing the floor area (with a consequent reduction in the FSR) and increasing the solar access to the adjoining property.