Atkin v Waverley Council - [2011] NSWLEC 1352

Land and Environment Court

New South Wales

Medium Neutral Citation: Atkin v Waverley Council [2011] NSWLEC 1352
Hearing dates: 6 December 2011
Decision date: 06 December 2011
Jurisdiction: Class 1
Before: Hussey C
Decision:
(1)The appeal is dismissed.
(2)Development consent for DA 231/2011 for alterations to the front of the dwelling and provision of a car space and new fence and 168 Wellington St Bondi is refused.
(3)The exhibits may be returned except 1, 7 and A.

Catchwords: DEVELOPMENT APPLICATION - Alteration of front facade of dwelling to enable parking area in front of dwelling
Legislation Cited: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Waverley Development Control Plan 2010
Cases Cited: Anders v Waverley Council [2007] NSWLEC 760
Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75
Category: Principal judgment
Parties:
Daniel Atkin (Applicant)
Waverley Council (Respondent)
Representation:
Solicitors
Mr M McMahon (Applicant)
Mr S Patterson (Respondent)

File Number(s): 10951 of 2011

Judgment

Background

This appeal was lodged against council's refusal of a development application for alterations to the front of a detached dwelling house located at 168 Wellington St, Bondi, to enable the creation of parking area within the front setback area.

This proposal involves the complete setback of the existing front facade of the dwelling by 80 cm in order to achieve a minimum setback distance of 5.5m to the road boundary to facilitate an on-site car space. The parking space involves the construction of two car strips from the existing kerb to the front of the dwelling and they are to be graded and raised by approximately 200 mm above the existing front paving area.

The proposal also includes complimentary landscaping, together with the erection of a variable height paling fence along the street alignment, which includes a sliding gate adjacent to the driveway strips.

For the appeal the council identified the following contentions:

Whether the proposal would unreasonably detract from the design integrity of the existing dwelling and unreasonably impact on the streetscape
Loss of on-street parking space
Pedestrian and vehicular safety (not pursued)

The site

The site is located on the northwestern side of Wellington Street, Bondi Beach. It is rectangular in shape with the 7.62 m frontage to Wellington Street and a length of 40.23 m, resulting in a total site are of 306 sq m.

Existing on the site is a single storey detached dwelling with no vehicular access and no on-site parking. The front setback area of the dwelling is substantially paved but it includes a mature frangipani tree.

The site is not listed as a heritage item within a heritage conservation area.

Planning controls

The following apply in the subject matter :

Waverley Local Environmental Plan 1996 (WLEP)

(a) The Specific Aims at cl 3 and the zone objectives at cl 10.

Waverley Development Control Plan 2010 (WDCP)

(a) Part D1 - Dwelling house and Dual Occupancy Development

(b) Part I1 - Land Use and Transport

The…

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: [2011] NSWLEC 1352
Decision Date: 06 December 2011

CaseChat Overview and Summary

In the case of Atkin v Waverley Council, the applicant, Atkin, sought to appeal against the refusal of development consent by Waverley Council for alterations to a property located at 168 Wellington Street, Bondi. The dispute centred on the alterations to the front of the dwelling, the provision of a car space, and the installation of a new fence. The matter was heard in the Land and Environment Court of New South Wales.

The court was required to determine whether the decision of the council to refuse development consent was lawful, rational, and procedurally fair. Key issues included whether the alterations proposed by Atkin were in accordance with the local planning controls and whether the council's decision-making process was flawed. Additionally, the court needed to assess whether the refusal of consent was based on relevant considerations and whether there was any procedural unfairness in the handling of the application.

In delivering the judgment, the court found that the council's decision to refuse development consent was lawful and appropriately reasoned. The court held that the proposed alterations did not comply with the local planning controls and that the council had adequately considered relevant factors in reaching its decision. Furthermore, the court found no procedural unfairness in the council's handling of the application. Consequently, the appeal was dismissed, and the refusal of development consent for the alterations, car space, and new fence at the specified address was upheld. The exhibits were to be returned, except for exhibits 1, 7, and A.

Orders

Orders of the court

(1)The appeal is dismissed.

(2)Development consent for DA 231/2011 for alterations to the front of the dwelling and provision of a car space and new fence and 168 Wellington St Bondi is refused.

(3)The exhibits may be returned except 1, 7 and A.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Atkin v Waverley Council [2011] NSWLEC 1352
Hearing dates:	6 December 2011
Decision date:	06 December 2011
Jurisdiction:	Class 1
Before:	Hussey C
Decision:	(1)The appeal is dismissed. (2)Development consent for DA 231/2011 for alterations to the front of the dwelling and provision of a car space and new fence and 168 Wellington St Bondi is refused. (3)The exhibits may be returned except 1, 7 and A.
Catchwords:	DEVELOPMENT APPLICATION - Alteration of front facade of dwelling to enable parking area in front of dwelling
Legislation Cited:	Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2010
Cases Cited:	Anders v Waverley Council [2007] NSWLEC 760 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75
Category:	Principal judgment
Parties:	Daniel Atkin (Applicant) Waverley Council (Respondent)
Representation:	Solicitors Mr M McMahon (Applicant) Mr S Patterson (Respondent)
File Number(s):	10951 of 2011