Cooking Master Pty Limited v Waverley Council [2014] NSWLEC 1192

Land and Environment Court New South Wales

Medium Neutral Citation: Cooking Master Pty Limited v Waverley Council [2014] NSWLEC 1192 Hearing dates: 8-9 September 2014 Decision date: 16 September 2014 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld subject to conditions see [35] Catchwords: DEVELOPMENT APPLICATION: Residential flat building; FSR, streetscape, views, solar access Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development Waverley Local Environmental Plan 2012 Cases Cited: Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Cooking master Pty Limited (Applicant) Waverley Council (Respondent) Representation: Applicant: Ms S Duggan SC (Barrister) Respondent: Mr M Staunton (Barrister) Applicant: Newhouse & Arnold Respondent: Wiltshire Webb Staunton Beattie File Number(s): 10151 of 2014

Judgment 1COMMISSIONER: The applicant appeals Waverley Council's deemed refusal of Development Application No. 357/2013 for the demolition of existing dwellings and the construction of a residential flat building with basement car parking at 649-651 Old South Head Road, Rose Bay (the site). 2The appeal is made pursuant to s 97(1)(b) of the Environmental Planning and Assessment Act 1979 (the EPA Act). 3In April 2014, the Court granted the applicant leave to rely on amended plans. 4The development application, as amended, proposes: * Demolition of existing dwellings at 649 and 651 Old South Head Road; * Construction of a four storey, 17 unit residential flat building comprising 10 x 1 bedroom dwellings, 5 x 2 bedroom dwellings, and 2 x 3 bedroom dwellings; and * Basement car parking for 18 cars including two visitor spaces, accessed from Old South Head Road. 5Based on the amended proposal, council contends the development application should be refused on the following grounds, as summarised from council's Statement of Facts and Contentions: * Out of character with the residential zoning of the site; * Uncharacteristic presentation in the streetscape; * Inconsistent with context, scale and built form criteria in State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65); * Unacceptable impacts on privacy of adjoining properties; * Unacceptable impacts on views from adjoining properties; * Excessive bulk and unacceptable visual impacts; * Unacceptable shading of 647 Old South Head Road; * Isolation of 647 Old South Head Road and impacts on development potential; * Overdevelopment of the site resulting from a breach of the Floor Space Ratio (FSR) controls in Waverley Local Environmental Plan 2012 (WLEP) and other provisions of Waverley Development Control Plan 2012 (WDCP); * Poor amenity for future residents of the development; * Inadequate landscaping; and * Not in the public interest.