Land and Environment Court of New South Wales CITATION : Woniora Investments v Waverley Council (No 2) [2007] NSWLEC 562 APPLICANT Woniora Investments Pty Limited PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10403 of 2005 CORAM: Brown C KEY ISSUES: Appeal :- modification application - reduction in rear setback - additional car parking spaces LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Pafburn v North Sydney Council (2005) NSWLEC 444 DATES OF HEARING: 6/08/07 DATE OF JUDGMENT: 7 August 2007 APPLICANT Mr G Green, solicitor SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr M Staunton, barrister SOLICITORS Wilshire Webb Staunton Beattie Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 7 August 2007 10403 of 2005 Woniora Investments Pty Limited v Waverley Council (No 2) JUDGMENT 1 COMMISSIONER: This is an appeal against the deemed refusal of an application under s 96 of the Environmental Planning and Assessment Act 1979 to modify an approval granted by the Court, by consent, on 17 November 2005 for the demolition of an existing building and the erection 2 The modification application seeks two principle changes, being the reduced southern setback of the upper three levels by 2.505 m and the provision of an additional two car parking spaces with the basement car park to provide a total of 10spaces. 3 Of the other issues raised in the proceedings, the reduced southern setback at the lower two levels of the development was not pressed by the applicant and the relocation of the existing water harvesting tank and additional underground sprinkler tank was not opposed by the council. 4 Ms Kylie Lucas provided evidence for the council, as did local residents, Mr Stephen Klinger and Ms Vera Culkoff of 14 Kenneth Street. Mr Klinger stated that he also spoke on behalf of Mr Griff of 12 Kenneth Street and Mr Fairfax of 16 Kenneth Street. Mr Klinger and Ms Culkoff raised concerns over the additional bulk of the proposal when viewed from the coastal reserve. Mr Michael Dunkley of 6/7 Kenneth Street also provided evidence and his unit was inspected on the site view as well as the unit directly below. Mr Dunkley agreed with comments of Mr Klinger and Ms Culkoff and raised the additional concerns of view loss from his unit in an easterly direction. Mr Andrew Darroch, town planner, provided evidence for the applicant. 5 On the reduction of the southern setback, Ms Lucas states that the previous approval by the Court was based on a negotiated settlement between the council and the applicant, as there was agreement that the planning controls applicable to the site should not be strictly applied. The breaches to the controls in Development Control Plan 1 (that applied at the time) were large and numerous. A more merit-based assessment was considered by the council to be the appropriate planning approach to the site. Inherent in this negotiated agreement was the need to protect the adjoining residential developments and the adjoining coastal reserve to the south through an appropriate setback. 6 The reduced setback at the upper level will bring the building closer to the coastal reserve and adjoining buildings and raise issues over additional bulk, view loss and overshadowing and the precedential effect for other development in the vicinity. Currently, the applicable floor space ratio (FSR) control under Development Control Plan 2006 (DCP 2006) is 0.6:1, whereas the approved FSR was 1.38 to 1. The amended proposal has an FSR of 1.5:1. 7 Mr Darroch maintained that the reduced setback was not a matter that would warrant the refusal of the modification application. The amendment to the setback at the upper three levels establishes a rear building line that allows the redevelopment of surrounding properties with minimal impact on each other. As I understand, Mr Darroch maintains that the redevelopment of surrounding properties would principally involve the construction of external decks to the southern elevation of the adjoining and nearby buildings. 8 On the question of the reduced setback, I prefer the evidence of Ms Lucas. The reliance on the planning principles in Pafburn v North Sydney Council (2005) NSWLEC 444 is complicated by the agreement that the planning controls should not be strictly followed and that a more merit based assessment should be adopted. In my view, the additional impacts of view loss from Mr Dunkley's unit and the unit below, when combined with the additional bulk when viewed from the coastal walk, is sufficient to warrant refusal of the reduced setback. 9 In coming to this conclusion, I accept that the 2.505 m reduction in setback is not significant in numerical terms, however, taking into account the large departures from DCP 2006, particularly the FSR requirements, it is necessary to take a more rigorous assessment of the impacts. The reduced setback will reduce views in an easterly direction from Mr Dunkley's unit, although the panoramic views to the south and west will be unaffected. Again, the perception of increased bulk from the coastal walk would not be significant, although the height poles erected at the time of the site view indicating the approved and proposed location of the upper levels of the building clearly indicate a noticeable increase in bulk when walking along the coastal reserve. The perception of bulk would not be so noticeable from a position directly in front of the property because the upper levels would be largely screened by the lower levels, however, I see no valid planning reasons to support the reduced setback taking into consideration the significance of the coastal reserve. 10 While Mr Darroch argued that the reduced setback would create a long-term de facto setback along the rear boundary of the properties in Kenneth Street, I am not satisfied this is a sufficient reason to overcome the view loss and additional bulk issues I have addressed earlier. I note that the council has recently DCP 2006 and there is no requirement for a rear building line, as suggested by Mr Darroch. 11 The Court was advised of an application for external balconies on the southern elevation of the units at 7 Kenneth Street although this was ultimately refused by the council. In the event that further development applications are lodged for similar balconies, the applications would need to be considered on their individual merits in much the same way as this application has been considered. In my view, it would be unsound to place any weight on a proposition that there would be development applications for external balconies on the southern elevations to the existing residential flat buildings in Kenneth Avenue when there is no evidence to suggest that this would eventuate. 12 The issue of car parking relates to the provision of two additional spaces in the basement car park to provide a total of 10 spaces. Clause 3.2 of DCP 2006 provides requirements for car parking for this site. A development comprising 5 x 3 bedroom residences requires a maximum of 8 spaces. Ms Lucas indicates that the council is concerned that any parking spaces above the maximum number would be inconsistent with the objectives in cl I 7 - Land Use and Transport, in that it would not, "encourage walking, cycling and public transport usage, thereby reducing car dependency". 13 Mr Darroch argues that the provision of two spaces for each three-bedroom unit is not unreasonable, particularly considering the limited availability of street parking. 14 On this issue, I accept Mr Darroch's conclusions. Clause 3.11 provides that parking standards may be waived or varied if it is considered that "such a variation will permit a better planning solution to development of the subject site." The additional parking spaces were not opposed by the residents who gave evidence, as there was no additional bulk, scale or height resulting from this variation. Also, the evidence suggests that street parking was currently at saturation levels. 15 In my view, the provision of two spaces for each three-bedroom unit is not an unreasonable level of car parking and with the high levels of street parking; the use of cl 3.11 can be justified. 16 The Orders of the Court are: 1. The appeal under s 96 of the Environmental Planning and Assessment Act 1979 is upheld, in part. 2. The application lodged with the respondent council on 22 March 2007 to modify development consent No. 142/2004 granted by the Land and Environment Court of NSW on 17 November 2005 as modified by Waverley Council on 1 March 2007 is approved subject to Conditions in Annexure "A." 3. The exhibits are returned. ___________________ G T Brown Commissioner of the Court 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.