ABD Holdings v Waverley Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

ABD Holdings v Waverley Council [2012] NSWLEC 1279

Hearing dates:

18 September 2012

Decision date:

10 October 2012

Jurisdiction:

Class 1

Before:

O'Neill C

Decision:

1)    The appeal is upheld.

2)    Development Application No DA-446/2011 dated 2 November 2008 in relation to the alteration of and addition to the existing basement to accommodate a car park for 6 cars including car lift is approved subject to the conditions constituting annexure "A"

3) Approval is granted pursuant to s 138 of the Roads Act 1993 (NSW) for construction of a new driveway on the unmade road reserve shown in the Waverley Local Environmental Plan 1996 and is to be carried out in accordance with the conditions approved in order 2 above.

4) Approval is granted pursuant to section 112 of Part 5 of the Environmental Planning and Assessment Act 1979 (NSW) for works in the area zoned 6(a) Open Space pursuant to the Waverley Local Environmental Plan 1996 and is to be carried out in accordance with the conditions approved in order 2 above.

5)   The exhibits, other than exhibits 6 and A, are returned.

Catchwords:

DEVELOPMENT APPLICATION: basement car park for residential flat building, pedestrian amenity and safety, impact on amenity of neighbouring residential flat building.

Legislation Cited:

Land and Environment Court Act 1979
Environmental Planning and Assessment Act 1979
Roads Act 1993

Cases Cited:

Goldberg v Waverley Council [2007] NSWLEC 259

Category:

Principal judgment

Parties:

ABD Holdings Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Mr N. Eastman (Barrister) (Applicant)
Mr S. Patterson (Solicitor) (Respondent)
Solicitors
Gadens Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

10233 of 2012

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of Development Application No. 446/2011 (the application) by Waverley Council (the Council) for alterations and additions to a residential flat building, at 70 Fletcher Street, Bondi (the site).

1. The appeal was subject to mandatory conciliation on 14 May 2012, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached during the conciliation phase, the conciliation conference was terminated on 24 July 2012 pursuant to s 34(4) of the LEC Act.

Issues

1. Council's contentions in the matter can be summarised as:

• The proposal will compromise pedestrian amenity and safety;
• The proposed development does not satisfactorily recognise the constraints of the site; and
• The proposal will result in an unacceptable impact on the visual privacy of unit 1, 68 Fletcher Street, Bondi.

The site and its context

1. The site is located on the northern side of Fletcher Street and is the last allotment at the eastern end of Fletcher Street. The coastal walk between Bondi and Tamarama beaches is to the north and east of the site. Marks Park is to the south of the site.

1. The site has a frontage to…