PLANNING, ENVIRONMENT & GOVERNMENT CASE LAW UPDATE

RIHANI V WAVERLEY COUNCIL [2022] NSWLEC 1292

Article written by Michael Mantei

Case Law Update
Rihani v Waverley Council [2022] NSWLEC 1292
The recent decision of the Land and Environment Court in Rihani v Waverley Council [2022]
NSWLEC 1292 highlights the difficulties involved in obtaining approval for an off-street car parking
space in an area with an established streetscape.

Background
The site of this proposal was occupied by part one and part two storey semi-detached dwelling at
12 Narelle Street, North Bondi. The existing dwelling had no off street vehicle access with a front
boundary setback of 3 metres. The proposal involved alterations and additions to the semidetached
dwelling, including the partial demolition of the front of the dwelling to provide for a new hardstand car parking space. This element of the proposal involved a “cut out” of the front façade
of the existing dwelling.

The proposal also involved a minor contravention of 4.9% of the floor space ratio control in
Waverley Local Environmental Plan 2012 (“WLEP 2012”). The application was accompanied by a
written request under clause 4.6 of the WLEP 2012. The site was located in the R2 Low Density
Residential zone under WLEP 2012.

There were 3 issues in dispute between the parties: FSR control; Streetscape Presentation and
Design Excellence.

Findings
The Court accepted the applicant’s written request to contravene the FSR control, applying the
precedents established by the Court in Initial Action Pty Ltd v Woollahra Municipal Council [2018]
NSWLEC 118 and Wehbe v Pittwater Council [2007] NSWLEC 827. The reasons for the FSR
contravention request proffered by the applicant, and accepted by the Court, were that:

/ the contravention was “relatively minor”,
/ the resultant density was “not incongruous” with the maximum building height applicable
to the site,
/ that a recent approval for the adjoining semi-pair to the west also involved FSR
contraventions of similar or larger scale; and
/ the proposal does not result in unreasonable amenity impacts on neighbouring properties
and the locality.

The proposal was consistent with the zone objectives and in the public interest because, among
other things, the proposal involved an expansion to an existing residence to increase bedroom
numbers to five, to meet certain housing needs, while the setting remained a low density residential
environment.

Critically for the applicant however, was that the proposed off street car space and partial
demolition involved a “clear breach” of clause 2.13.1 (preventing demolition of the front 6m of a
semi-detached dwelling) and clause 2.8.4(c) restricting the removal of buildings to accommodate
parking of the Waverley Development Control Plan (“WDCP”).

The applicant invoked the power in section 4.15(3A) of the Environmental Planning and Assessment
Act 1979, which permits the Court to look for alternative solutions to achieve the objects of WDCP
in instances of non-compliance. The Court applied the legal principles on the weight to be given to
a DCP established by the Court in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC
472 and Zhang v Canterbury City Council [2001] NSWCA 167.

The Court rejected the applicant’s submission that the proposal warranted the flexibility allowed by
section 4.15(3A) of the EP&A Act. The Court instead held that the proposal was “at odds with WDCP”
as it involved “a new level of contravention of WDCP’s ambitions, in this street at least, to allow the
direct cutting out of part of the front of a semi-detached residence to allow parking.”
The Court was further concerned about the absence of landscaping opportunities in the front
setback, and found that proposal did not achieve a high standard of urban design or retain the
visual quality of the setting and did not achieve the objective of ensuring parking does not dominate
or adversely impact on the existing street character.

This judgement is an example of the types of issues that the Court will consider when assessing the
suitability of an off street carparking space. One point of guidance that a prospective applicant
might take from this case is that Court is unlikely to approve a proposal for an off street car space
that involves the partial demolition of a dwelling in the Waverley Local Government Area. However
each case is dealt with on its own merits.

For more information or any enquiries, please contact Michael Mantei on 02 8022 1222 or email Michael.Mantei@madisonmarcus.com.au

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