CSA Architects Pty Ltd v Waverley Council - [2005] NSWLEC 311

Land and Environment Court

of New South Wales

CITATION:
CSA Architects Pty Ltd v Waverley Council [2005] NSWLEC 311

PARTIES:
APPLICANT
CSA Architects Pty Ltd
RESPONDENT
Waverley Council

FILE NUMBER(S):
11353 of 2004

CORAM:
Murrell C

KEY ISSUES:
Development Application :- Demolition - alterations and additions

LEGISLATION CITED:
Waverley Local Environmental Plan
Development Control Plan No. 2

CASES CITED:
Westwood v Waverley Council [2004] NSWLEC 574 revised - 10/11/2004;
Zhang v Canterbury City Council [2004] NSWLEC 500;
Ryan v Waverley Council [2004] NSWLEC 382 - revised 24/08/2004

DATES OF HEARING: 13/05/2005 and 16/05/05

EX TEMPORE JUDGMENT DATE:
05/16/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr M Staunton, solicitor
SOLICITORS
Staunton Beattie
RESPONDENT
Mr I Hemmings, barrister
Instructed by: Mr J Lloyd
of John Lloyd & Co.

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

16 May 2005
11353 of 2004 CSA Architects Pty Ltd v

Waverley Council

JUDGMENT

1 This is an ex tempore judgment for a matter that commenced on site last Friday. The Court adjourned for the opportunity to view a matter that had been referred to the Court in a judgment whereby the provisions of the DCP were considered to be determinative in terms of the alteration and addition of another semi-detached dwelling house in Wiley Street, Waverley.

2 This morning the applicant has also provided the Court with an amended set of plans to detail the change in levels between the split level design of the dwelling house and Mr Staunton has provided amended conditions to reflect the need for a dilapidation report on the adjoining dwellings.

3 This is a s 97 appeal against Waverley Council’s refusal of a development application for the demolition of a semi-detached house and the erection of a two-storey new modern dwelling on the subject site. The subject site is known as 63 Gilgandra Road and it has a width of some 5½ m at the street frontage and it has an area of approximately 206 sq m. The adjoining site at No. 65 where the other semi-detached dwelling is erected is a wider block of some nearly 7½ m with a larger site area than the current development application site under consideration.

4 The Court heard evidence from council’s planner and also the applicant provided evidence from a consultant town planner, Mr Boutris. The Court had the opportunity of a site inspection on the view and also an inspection of the surrounding area. The area is one that can be described, as agreed to between the parties as most eclectic, and in fact it does not exhibit any specific character. There are a number of semi-detached dwellings within the street. There are also a number of single dwelling houses within the street. The street is dominated by the built form and the subject site is not within a conservation area and indeed the streetscape has little vegetation, whether it be the verges or whether it be the vegetation within dwelling houses. The area is one that has…

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: [2005] NSWLEC 311
Decision Date: 05/16/2005

CaseChat Overview and Summary

The case of CSA Architects Pty Ltd v Waverley Council involved a Section 97 appeal against the refusal of a development application by Waverley Council. The applicant, CSA Architects Pty Ltd, sought to demolish a semi-detached house and erect a two-storey modern dwelling on a site located at 63 Gilgandra Road, North Bondi. The site, approximately 206 sq m in size, was at the end of a cul-de-sac and adjoined another semi-detached dwelling at No. 65 Gilgandra Road. The primary legal issue was whether the proposed development would accord with the council's Development Control Plan (DCP) and the Waverley Local Environmental Plan (LEP), specifically concerning streetscape and visual impacts.

The court considered the design criteria and solutions outlined in the DCP, which emphasized the importance of maintaining the architectural style and character of existing dwellings in the vicinity, ensuring visual harmony, and preserving the design integrity of semi-detached dwellings. The court also reviewed the amended DCP, which provided for streetscape and visual impact controls, stating that new dwellings should be consistent with existing surrounding dwellings in terms of bulk, scale, and proportions.

The court noted that the subject site was not within a conservation area and that the streetscape lacked a specific character. The semi-detached dwellings in the area varied in architectural quality, and the site's location at the end of the cul-de-sac limited its visibility. The court distinguished the current application from previous cases, such as Westwood v Waverley Council [2004] NSWLEC 574 and Ryan v Waverley Council [2004] NSWLEC 382, where the streetscape had unique character and cohesion.

After careful consideration of the council's DCP and the amended DCP, the court determined that the proposal, while not of high architectural quality, would sit within the streetscape due to the site's limited visual catchment and the broader context of the street undergoing change. The court concluded that the proposed development would make a positive contribution to the streetscape and would not be an aberration.

The court granted the appeal and approved the development application, subject to certain conditions, including amendments to the landscape plan, relocation of the garbage bin receptacles, and adjustments to the front gate and garage door. The applicant was required to provide a revised plan to the court before final orders were issued. The court emphasized the importance of adhering to the council's DCP and ensuring that the development would not exacerbate the significant differences in topography between the subject site and the adjoining property at No. 19 Plowman Street.

Orders