Raissis v Waverley Council [2017] NSWLEC 1519

Land and Environment Court New South Wales

Medium Neutral Citation: Raissis v Waverley Council [2017] NSWLEC 1519 Hearing dates: 4 September 2017 Date of orders: 05 September 2017 Decision date: 05 September 2017 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. Modification application No DA528/2015/A to modify the development consent for a residential flat building at 15 Park Parade, Bondi is approved subject to the conditions in Annexure A. 3. The exhibits, with the exception of exhibits 3, A and B are returned. Catchwords: MODIFICATION APPLICATION: modification of approval for the construction of a residential flat building - reconfiguration of the lower ground floor to add an additional unit – excessive floor space ratio – inadequate side setback – inadequate landscaped area Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 65 Waverley Local Environmental Plan 2012 Category: Principal judgment Parties: Spiro Raissis (Applicant) Waverley Council Respondent) Representation: Counsel: Dr J Smith, barrister (Applicant) Mr K Webber, solicitor (Respondent)

Solicitors: Maddocks Lawyers (Applicant) Wilshire Staunton Beattie Lawyers (Respondent) File Number(s): 2017/10719 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the deemed refusal of modification application number DA528/2015/A, which seeks to modify Development Consent No. DA528/2015 (the original approval) that approved for the construction of a new residential flat building at 15 Park Parade, Bondi (the site). 2. The modification application proposes the modification of condition 1 of the development consent to permit the following: 1. reconfiguration of the lower ground floor to add an additional unit; 2. consequential changes to the basement level to accommodate seven car spaces and deletion of storage area, bicycle spaces, OSD tank and services; 3. provision of a car lift in lieu of a ramp access; 4. reconfiguration of internal areas, including stairwell; 5. extension of southern portion of the building to reduce southern side setback to 1.5 m, extending from midway to rear of the building, and modify unit 3 from a studio to one-bedroom unit; 6. removal of the lift; and 7. landscaping modifications, including conversion of rear yard from communal to private open space, removal of tree, and amend front setback to include bin storage. 1. The council raises a number of contentions in relation to the modification application. Those identified in the council's Statement of Facts and Contentions are: 1. excessive floor space ratio (FSR); 2. unacceptable building design; 3. inadequate setbacks; 4. inadequate landscaped area; 5. poor unit amenity; 6. overshadowing; 7. tree loss; 8. inadequate car and bicycle parking; 9. excessive excavation; 10. inadequate waste storage; and 11. inadequate information. 1. A number of the contentions, such as tree loss, inadequate information, and inadequate car and bicycle parking were addressed to the satisfaction of council through additional reports, and other matters such as overshadowing and poor unit amenities were addressed in the joint report of Mr Layman for the council and Ms Askin for the applicant. 2. In simplifying the contentions, Mr Webber for the council succinctly stated that the concerns of the council relate to a combination of the excessive FSR, the reduced setback particularly in the south-east corner of the site, and the amount of landscaping. In essence, the amount of the floor area proposed was excessive for the site and created shortcomings in other areas, such as landscape area and setbacks.