Land and Environment Court of New South Wales CITATION : Pointer Properties Pty Limited v Waverley Council [2008] NSWLEC 1317 APPLICANT Pointer Properties Pty Limited PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10428 of 2008 CORAM: Brown C KEY ISSUES: Development Application :- construction of a unit to be created by the demolition of the internal walls to an existing common laundry, toilet and store rooms on the ground floor of an existing storey residential flat building - loss of communal open space LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 10/07/08 EX TEMPORE JUDGMENT DATE : 10 July 2008 APPLICANT Mr P Clay, barrister SOLICITORS Russell McLelland Brown Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr S Patterson, solicitor SOLICITORS Wilshire Webb Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 10 July 2008 10628 of 2008 Pointer Properties Pty Limited v Waverley Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of DA0 590/2007 by Waverley Council (the council) for the construction of a two bedroom unit to be created by the demolition of the internal walls to an existing common laundry, toilet and store rooms on the ground floor of an existing 3/4 storey residential flat building at 22 Murray Street Bondi (the site). 2 The matter was conducted as a conciliation conference under s 34 of the Land and Environment Court Act 1979. In accordance with s 34(4) the conciliation conference was terminated, as the parties did not reach agreement however the parties consented to me disposing of the proceedings forthwith in accordance with s 34(4)(b)(i) and on the basis of what occurred at the conciliation conference in accordance with s 34(4)(b)(ii). The judgment reflects the Statement of Facts and Contentions, documents provided by the parties and the reasons given on site for my decision in accordance with s 34(5). 3 The site is within Zone No 2(a) Residential – Low Density under Waverley Local Environmental Plan 1996. Residential flat buildings are a prohibited use within this zone so the site benefits from existing use rights under s 108(3) of the Environmental Planning and Assessment Act 1979. This provides that any provision of an environmental planning instrument that derogates from the existing use right provisions of the Environmental Planning and Assessment Regulations 2000 has no force or effect. This has the effect of making the provisions of Waverley Development Control Plan 2000 inapplicable to the development application. 4 The Statement of Facts and Contentions identifies the following areas of dispute: 1) loss of communal facilities, particularly the communal laundry, the communal toilet, storage areas, communal open space and drying area and the relocation of the bin storage area, and 2) the amenity of the proposed new unit, particularly the 2.1 m ceiling height in the kitchen, the main access to the unit through the kitchen, the 2.4 m ceiling height in the bedrooms and the size of the proposed new unit at around 60 sq m. 5 The background to the development application is relevant and involves the approval by the council of DA 357/2007 in December 2007. This development application provided for the refurbishment of the six unit residential flat building with the strata subdivision into six separate lots and upgrading to comply with the Building Code of Australia. The approval of this development application provided for the retention of the basement level communal laundry, toilet and storerooms and some communal open space areas at ground level that are the subject of this development application. 6 The proposed development essentially seeks to use the basement level communal laundry, toilet and storage areas and some communal open space for the new two-bedroom unit. 7 At the conciliation conference, the applicant offered to amend the design of the proposed new unit by creating a one-bedroom unit instead of the proposed two-bedroom unit. This allowed the kitchen to be relocated and the original kitchen with a 2.1 m ceiling height to be used as an entry area for the unit. While not being an optimal solution, Mr Phillip Bull, the council's town planner, agreed that it was acceptable and addressed his concerns over the amenity of the proposed new unit. Directions were given for the filing and serving of amended plans that reflected the offer by the applicant to amend the application. 8 Of the remaining issues, Mr Bull maintained his objection to the loss of the communal open space. He stated that it provided an area where residents could congregate and provide an area where children could play. Mr Lindsay Fletcher, a town planner for the applicant, stated that in his experience, communal open space is not highly valued by residents particularly when adequate areas of private open space are provided, as is in this application. The provision of communal open space is also less important in locations (such as this area) where high-quality public open space areas are available and within easy walking distance of the site. 9 At the site view, a number of options for the provision of communal open space were examined however none were found to be suitable for a number of reasons including the lack of ground floor access and their location adjoining Murray Street. 10 With an understanding of the site, the size of the development and its context I accept the conclusions of Mr Fletcher. The size of the development represents a relatively high density given the 515 sq m size of the lot. I am not satisfied that even if a small area of communal open space was retained that it would represent an area of particularly good amenity for the residents of the building. When considered against the close proximity of Bronte Park that extends from Murray Street just to the north of the site and a considerable distance to Bronte Beach, there can be little dispute that this area provides a range of open space opportunities of higher quality and useability than could be provided on the site. In my view, Bronte Park is likely to be preferred by most residents for outdoor recreational activities. For this reason I see no particular benefit in retaining a small communal open space area with little amenity for the residents of the building. 11 The amended conditions to reflect the new reconfiguration were filed on 4 August 2008. 12 The Orders of the Court are: 1) The appeal is upheld. 2) DA0 590/2007 for the construction of one-bedroon unit to be created by the demolition of the internal walls to an existing common laundry, toilet and store rooms on the ground floor of 22 Murray Street Bondi is approved subject to the conditions in Annexure A. __________ 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.