Bustos-McNeil v Waverley Council

[2008] NSWLEC 1173

Land and Environment Court

of New South Wales

CITATION:	Bustos-McNeil v Waverley Council [2008] NSWLEC 1173
PARTIES:	APPLICANT R Bustos-McNeil RESPONDENT Waverley Council
FILE NUMBER(S):	10169 of 2008
CORAM:	Moore C
KEY ISSUES:	Development Consent - Modification Application :- Off-street parking
DATES OF HEARING:	7 May 2008
EX TEMPORE JUDGMENT DATE:	7 May 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr R Creighton, agent RESPONDENT Mr S Patterson, solicitor Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

7 May 2008

08/10169 Bustos-McNeil v Waverley Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the modification of and existing development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court’s web site at

1 COMMISSIONER: 35 Frederick Street, North Bondi is the southern of a pair of semi-detached houses in a street where almost all of the dwellings, on both sides, have off-street parking partially or wholly within their front setbacks – some of them with carports. The applicant seeks an amendment to a development consent which consent required the deletion of his proposal for a hardstand car parking space and new vehicle crossing with such a parking space to be in the front setback of their property and involving some a re-arrangement of the front study room in the dwelling.

2 The various assessments undertaken by officers of the Council of the modification application concluded that there were no general matters relating to streetscape or non-compliance with parking location conditions – as are generally the matters raised in such applications in this municipality.

3 The single matter that the Council raises is the contention of inadequacy of pedestrian access to the dwelling if the proposal were to be approved.

4 The Council raises no independent concerns about the proposed water tank under the parking space if the car parking space is otherwise approved

5 There are three options open for my consideration. The first is entire rejection of the proposal.

6 The second would be to cure what the Council says is the defect by requiring that the applicant create a new entrance to the house which would effectively be through the study area and the master bedroom. This is clearly an absurd approach.

7 The third is to require a slight widening to the north of the parking space and a small contraction of the area of the resultant study in order to increase the scope for pedestrian access to the main entrance to the building. If that were to be done by the narrowing of that room some 200 mm to the north, there would be sufficient space for the parking of an 85th percentile vehicle in the otherwise compliant car parking space area. This would permit the marking of an accessway to be regarded as at the pedestrian access to the house. Such resolution is, in my view an acceptable outcome.

8 I am satisfied that adoption of this latter approach is the appropriate way to resolve the sole matter raised by the Council. I do not consider that it would be appropriate to require some form of physical delineation by planting a strip of Mondo Grass or the like – it is simply sufficient that the boundary of the accessway be marked to provide a guide for persons parking the car to do so and leave sufficient additional room for pedestrian access.

9 The consequence is, that subject to the applicant’s provision of revised plans narrowing the study 200 mm to the north and a revised condition from the Council requiring that there be an appropriate form of marking, to the satisfaction of the Council, with that marking to be 900 mm to the north of the face of the southern fence on the property, the appeal is upheld and orders will be issued in chambers after the filing of revised plans and revised conditions to give effect to this decision.

Commissioner of the Court