Pillion v Waverley Council

The proposed development exceeds the Floor Space Ratio standard

1. The height of the existing building is proposed to be retained. A portion of the existing roof structure exceeds the height standard of 8.5m at cl 4.3 of the WLEP, however, as shown in Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174, at [60(3)], as the DA as now amended is not development for a building that exceeds the maximum height shown for the land, the development standard in cl 4.3 of the WLEP does not apply when determining the DA as now amended.
2. The proposal also exceeds the Floor Space Ratio (FSR) standard of 0.7:1 that applies to the site by virtue of cl 4.4A of the WLEP.
3. The FSR of the existing dwelling house is 0.89:1, and the FSR of the proposed development is 1.01:1. The Applicant relies upon a written request, prepared in accordance with cl 4.6 of the WLEP by GSA Planning dated October 2023 (the written request).
4. The written request states that the alterations and additions that give rise to additional floor space are limited to the lower ground floor and ground floor where the additional floor space is within the footprint of an existing balcony, such that no additional bulk or scale results from the proposal. Likewise, no aspect of the proposal contravenes the height standard beyond the existing contravention, as stated earlier.
5. The written request asserts that compliance with the FSR standard is unnecessary or unreasonable because the proposal achieves the objectives of the FSR standard notwithstanding the non-compliance.
6. The relevant objectives are the objectives of the FSR standard at cl 4.4(1) of the WLEP, that in the following terms: 4.4 Floor space ratio … (b) to provide an appropriate correlation between maximum building heights and density controls, (c) to ensure that buildings are compatible with the bulk and scale of the desired future character of the locality, (d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and the locality.
7. I accept the reasons put forward in the written request as to the manner in which the objectives of cl 4.4 are achieved, summarised as follows: 1. An appropriate correlation is achieved between maximum building heights and density controls by the additional floor space being wholly contained within the existing building height. A lower FSR would not reduce the external envelope as the additional floor space on the lower ground floor is not visible from the street, and the additional floor space on the ground floor is contained within the envelope formed by the balcony above on the first floor. 2. The bulk and scale of the proposal is compatible with the desired future character of the locality when recently approved development on Wolaroi Crescent is considered in the manner set out in SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112, and where such development comparably exceeds the height and FSR provisions of the WLEP. In the circumstances of this proposal, the exceedance is contained within the existing bulk and scale which maintains the predominating front setback alignment with adjoining properties at 2 and 6 Wolaroi Crescent. 3. The amenity of the neighbouring properties and locality is preserved by limiting the additional floor space to the lower ground and ground floors where no additional bulk results that would otherwise impact privacy, solar access or views that are all forms of amenity.
8. I also accept the environmental planning grounds advanced in the written request are sufficient to justify the contravention of the FSR standard because the additional floor space is largely not perceived from the public domain, because the proposal is visually compatible in the context of other development in Wolaroi Crescent, and achieves the relevant objectives of the FSR standard.
9. As such I am satisfied the written request adequately addresses those matters required to be demonstrated at cl 4.6(3) of the WLEP.
10. I am also satisfied the proposed development is in the public interest because it is consistent with the objectives of the FSR standard, and of the R2 zone which seeks housing appropriate to a low density residential environment, and does not propose to alter the existing car parking provision on the site.
11. The parties agree, as do I, that the contravention of the FSR standard does not raise any matter of significance for State or regional environmental planning pursuant to cl 4.6(5) of the WLEP, and so there are no grounds on which the written request should not be upheld.

[2020] NSWLEC 1112