Anders v Waverley Council - [2007] NSWLEC 760

Land and Environment Court

of New South Wales

CITATION: Anders v Waverley Council [2007] NSWLEC 760

PARTIES:
APPLICANT
Adam Anders
RESPONDENT
Waverley Council

FILE NUMBER(S): 10473 of 2007

CORAM: Murrell C

KEY ISSUES: Development Application :- -car parking space within front setback area
-alteration required to sandstone foundation of dwelling
-integrity of fabric of dwelling
-streetscape
-precedent

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Waverley Development Control Plan 2006

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167;
Blackman v Waverley Council [2007] NSWLEC 173;
Icon Building Services v Waverley Council [2007] NSWLEC 295;
Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

DATES OF HEARING: 04/09/2007

EX TEMPORE JUDGMENT DATE: 4 September 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr O'Gorman- Hughes, barrister
RESPONDENT
Mr M. Staunton, barrister

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

4 September 2007

10473 of 2007 Adam Anders v Waverley Council
JUDGMENT

1 This is an appeal under s 97 of the Land and Environment Court Act 1979 (the Act) against Waverley Council’s refusal of a development application for the property known as No. 46 Francis Street, Bondi Beach. It is noted that the proposal is the subject of a s 82A review and a formal decision has not been made by the council on the s82A at this stage, however it was also recommended for refusal by the council officer.

2 This matter commenced on site this morning as a s 34 conciliation conference. After considerable discussion it became clear that agreement would not be reached and the parties consented to me arbitrating the matter under s 34(3)(b)(ii) of the Land and Environment Court Act 1979,

3 The proposal is for a car space that measures 5.5 by 2.5 metres. It is noted that 1.9 metres of that length will be underneath the front portion of the dwelling house. That is the sandstone foundation for that width and is to be removed from the dwelling and excavated. The clearance currently is some 1.3 metres so that there would be an excavation of some 300 millimetres or thereabouts to allow for a car to fit under the front of the dwelling house.

4 The Court heard from the planners for each party in this case. That is council’s assessment planner Ms Rossi, and the applicant’s planner, Mr Karavanis. Mr Karavanis considers that the proposed development would not be unreasonable nor would it detract from the streetscape but rather it would lead to improvements in the streetscape, in particular the additional landscaping that would be provided by the proposed development and the removal of the waste bins from being stored in the front curtilage of the property. He is of the opinion there would be no adverse impact on the streetscape and that the proposal would also have the benefit of providing for off street parking for the owner of the subject property.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWLEC 760
Decision Date: 4 September 2007

CaseChat Overview and Summary

Adam Anders has appealed to the Land and Environment Court of New South Wales against Waverley Council’s refusal of a development application for the property at 46 Francis Street, Bondi Beach. The application seeks approval for a car parking space within the front setback area, requiring an alteration to the sandstone foundation of the dwelling. The appeal raises issues concerning the integrity of the dwelling’s fabric, the impact on the streetscape, and the potential for setting a precedent for other properties in the vicinity. The court considered the Waverley Local Environmental Plan 1996 and the Waverley Development Control Plan 2006, along with several precedent cases.

The court heard from both parties’ planners, with Anders' planner arguing that the proposal would improve the streetscape and provide off-street parking. Conversely, Waverley Council’s planner argued that the proposal would detrimentally impact the streetscape and the dwelling’s integrity. The council also contended that approving the application would set an undesirable precedent for other property owners in the area. The court undertook an extensive site inspection and discussed the streetscape's character, ultimately determining that this portion of Francis Street has a distinctive streetscape that should be preserved.

After considering the planning controls, precedent cases, and the individual merits of the application, the court concluded that the proposed car parking space would compromise the dwelling’s integrity and negatively impact the streetscape. The court also considered the potential precedent for other properties in the vicinity. Despite acknowledging the value of off-street parking, the court found that the proposal did not warrant approval given the specific circumstances of this case.

The court dismissed the appeal and refused consent for the development application. The exhibits, except for the development application itself, were returned to the parties.

Orders