Krimotat v Woollahra Municipal Council [2010] NSWLEC 1360

Land and Environment Court of New South Wales

CITATION : Krimotat v Woollahra Municipal Council [2010] NSWLEC 1360

APPLICANTS Felix Krimotat PARTIES : Anna Krimotat

RESPONDENT Woollahra Municipal Council

FILE NUMBER(S) : 10892 of 2010

CORAM: Tuor C

KEY ISSUES: DEVELOPMENT MODIFICATION :- amend conditions of consent increase in excavation and floor space ratio to provide additional basement.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995

DATES OF HEARING: 17 December 2010

EX TEMPORE JUDGMENT DATE : 17 December 2010

APPLICANT Ms S Hill, Solicitor of Susan Hill & Associates Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor of Norton Rose Australia

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

17 December 2010

10892 of 2010 Krimotat v Woollahra Municipal Council This determination was given extemporaneously and has been edited prior to publication

JUDGMENT 1 COMMISSIONER: This is an appeal against conditions imposed on the approval by Woollahra Municipal Council (council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 to modify a development consent (DA 362/2009) to construct a new dwelling at 14 Village Lower Road, Vaucluse. 2 The s 96 application seeks to modify conditions imposed on the development consent, including: · Condition A3 to amend the approved plans to reflect internal and external changes including additional excavation in the basement for a cellar, store room and shower room; · deletion of Condition C.1 (c) to (g) relating to the front and rear setbacks; and · deletion of Condition C.1(j) relating to the building height. 3 The applicant also seeks to delete Conditions C.1(k) and C.1(l) which were imposed by council in its approval of the s 96 application. 4 The site, its locality, the history of the application and the planning controls are in the Statement of Facts and Contentions filed by the applicant and the Statement of Facts and Contentions in Response filed by the council. 5 Mr R Jeffery, for the council and Mr T Weisner, for the applicant, prepared a joint report on the geotechnical issues. Mr T Moody prepared a statement of evidence on the planning issues for the applicant. These experts provided evidence on site but were not required for cross-examination. Council did not provide any expert planning evidence. 6 The adjoining owner at 12 Village Lower Road made a submission in response to the notification of the s 96 application but did not provide oral evidence. His main concern is the potential impact of the excavation on his property. 7 The contentions raised by council principally relate to the potential impact of the excavation resulting from the increased depth and area of the basement to accommodate the wine cellar, storeroom and shower room. 8 Council has imposed conditions which reduce the depth of the approved floor level of the basement from RL 61.4 to RL 61.7 (Condition C.1(k)), and require the additional basement areas to be deleted (Condition C.1(l)). 9 The council officer's report and Mr Moody raised no planning issues with the increased excavation and changes to the basement. Mr Moody notes that the basement level was approved at RL 61.4 in the original consent and that the reductions sought by council would result in part of the floor to ceiling height of the basement being only two metres due to the position of structural beams. 10 The increased basement area will increase the floor space of the proposal and exceed the floor space ratio control (FSR) in Woollahra Residential Development Control Plan 2003 (DCP 2003). Mr Moody and the council report note that the increased floor space is below ground level, within the existing approved building footprint and is not visible from the street or adjoining properties. The increased floor space and excavation will not perceptibly increase the size and bulk of the building, change the deep soil landscape areas or the predominant ground levels adjoining the site boundaries or impact on ground water flow. 11 The geotechnical engineers conclude that there is a very low risk that excavation to RL 61.4 and the enlarged basement will adversely affect the adjoining property at Village Lower Road. They note that the piles and excavation are largely completed and that vibration monitoring is not required. The experts recommend construction and monitoring conditions, which are agreed to by the applicant. 12 Mr Rigg, for the council, submits that the agreed position of the geotechnical experts addresses the concerns of council about the impact of the increased excavation on the adjoining resident and council does not press the retention of Conditions 3.1(k) and 3.1(l). 13 In the absence of any expert evidence to the contrary, I accept the evidence of Mr Moody and the geotechnical experts that the proposed excavation and increase in the depth and area of the basement meets the objectives and requirements of the Woollahra Local Environmental Plan 1995 and DCP 2003, particularly in relation to excavation and floor space ratio. 14 The other conditions that were in dispute were procedural matters that have been resolved between the parties. Orders 15 The orders of the Court are therefore: 1. The appeal is upheld.