Bellenger v Randwick City Council - [2016] NSWLEC 1279

Land and Environment Court

New South Wales

Case Name:	Bellenger & anor v Randwick City Council
Medium Neutral Citation:	[2016] NSWLEC 1279
Hearing Date(s):	15 June 2016
Date of Orders:	5 July 2016
Decision Date:	5 July 2016
Jurisdiction:	Class 1
Before:	Hussey AC
Decision:	(1) The appeal is dismissed. (2) Development consent to DA/810/2015 for alterations to the front of the dwelling at 43 Greville Street, Clovelly to allow construction of a hardstand area is refused. (3) The exhibits may be returned except 1, 3, 6, 7 and A.
Catchwords:	Development application: Provision of a new hardstand car space within the front setback area, inconsistent with character of the area, inadequate length, non- compliance with relevant controls and standards, precedent and loss of on-street parking space.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Randwick LEP 2012; Randwick DCP 2013
Cases Cited:	Defterios v Woollahra Municipal Council [2007] NSWLEC 434 Deguara v Waverley Council [2012] NSWLEC 1305
Category:	Principal judgment
Parties:	Christopher Raymond Bellenger (First Applicant) Janice Merle Bellenger (Second Applicant) Randwick City Council (Respondent)
Representation:	Counsel: Mr J Rafferty (Applicant) Solicitors: Mr R Tong, WB Scott and Tong Solicitors (Applicant) Ms V McGrath, Norton Rose Fulbright Australia (Respondent)
File Number(s):	155403 of 2016

JUDGMENT

Background

This appeal was lodged against council’s refusal of a development application to demolish part of the front verandah and masonary fence at 43 Greville Street, Clovelly to enable the construction of a hardstand car space within the front setback area. The subject site has an area of 221.3 sqm and a frontage of 6.22m and it is part of a semi-detached dwelling adjoining 43A Greville Street. The front elevation is setback in the order of 4.8m from the road boundary.
A number of contentions were identified which are summarised as follows:
(1)The proposal is inconsistent with the zone objectives,
(2)Inadequate car space dimensions, in terms of the RDCP and AS 2890.1 – Design of Parking Modules provisions,
(3)Loss of on-street parking.

The proposal

The proposal includes:

Demolition of the front verandah and its balustrade, while retaining all masonry structural piers and original decorative timber trimmings.
Demolition of a portion of masonry front fence in between the 2 main brick piers
Provision of a car stand within the front setback with dimensions of 3m wide x 4.72m long and comprising of a pattern of pavers in between grass and ground cover. This is intended to minimise the impermeable surface and maximise the landscaped appearance of the garden.
Retain pedestrian entry to front door and replace existing paving with new.
Replace existing pedestrian gates of the same size with timber pickets.
Replace side passage gates of the same size with timber pickets.
Replace existing landscaping with new planting on either side of the parking space.
Demolish existing crossing that does not align with any functioning driveway, and replace with a new crossing in-line with the proposed new car space.
Relocate power pole on front verge to provide clear access into the driveway: subject to utility…

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: [2016] NSWLEC 1279
Decision Date: 5 July 2016

CaseChat Overview and Summary

The appeal was brought by the applicant, Bellenger, against the decision of Randwick City Council to refuse development consent for a proposed alteration to the front of the dwelling at 43 Greville Street, Clovelly. The proposed alteration included the construction of a hardstand area. The matter was heard by the Land and Environment Court of New South Wales, which was required to determine whether the council's decision was lawful, reasonable, and procedurally fair. The applicant argued that the council's decision was unreasonable and that the council had failed to consider certain matters, including the applicant's evidence and the character of the area. The council maintained that the decision was lawful and that the proposed alteration did not comply with the relevant planning scheme and development control provisions.

The court examined the evidence and submissions of both parties and considered the relevant planning scheme and development control provisions. The court found that the council's decision was lawful and reasonable, and that the council had considered all relevant matters in making its decision. The court noted that the proposed alteration did not comply with the relevant planning scheme and development control provisions, which required that alterations to heritage items be carried out in a manner that preserved the heritage value of the item. The court also found that the council had properly considered the character of the area and the impact of the proposed alteration on neighbouring properties.

The court dismissed the appeal and upheld the council's decision to refuse development consent. The court also ordered that the exhibits may be returned except for certain documents which were to be retained for a period of time. The applicant's appeal was unsuccessful and the development consent for the proposed alteration was refused.

Orders

Orders of the court

(1) The appeal is dismissed.

(2) Development consent to DA/810/2015 for alterations to the front of the dwelling at 43 Greville Street, Clovelly to allow construction of a hardstand area is refused.

(3) The exhibits may be returned except 1, 3, 6, 7 and A.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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