Findings
11 The s96 application is in three parts: internal alterations, amendments to the conditions and the additional floor area on level 6. There is no objection to the internal alterations. While the council agreed with many of the changes to the conditions requested by the applicant, three conditions remain in dispute. In addition, the second respondent, Mr Dobrijevic, asked the Court to retain two more of the original conditions. I deal with the disputed conditions at the end of the judgment.
12 I turn to the most contentious part of the application, the additional floor space at level 6. Despite Ms Gordon's recommendation and the council's acceptance that a reduced version of the applicant's plans is acceptable, the objectors have persuaded me that I should not approve this part of the application.
13 In Seaside Property Developments v Wyong Shire Council [2004] NSWLEC 117. Bly C established a planning principle regarding development at zone interfaces.
As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like.
14 The subject site is on a zone interface, on the other side of which is low-density housing, the zoning of which precludes increased density. All the neighbouring sites (and especially 8 Pymble Avenue) are in a vulnerable position. Apart from sloping land and zone interface, the sites are also vulnerable to impact because they are in a hollow and to the south of the proposed building. In addition, the zoning interface is between five-to-six storey zone and a low-density zone of one or two storeys. Not even a street separates the zones. Commissioner Bly's principle is therefore particularly applicable.
15 I am aware that the proposed extension to the floor area on level 6 would not have a major additional impact on the neighbouring sites. However, part of the extension could be seen and would therefore be a minor addition to an impact that is already at the limit of tolerability. I note that in April 2006 the applicant accepted the amendments that were approved in May 2006. There is little justification then for an application to extend the bulk of the building in June 2006.
16 I do not accept the applicant's submission that the additional floor space will lead to a better community outcome because it will increase the amenity of the building's future occupants. There is no difficulty of achieving a high level of amenity within the building envelope already approved.