Darling v Waverley Council - [2003] NSWLEC 327

Land and Environment Court

of New South Wales

CITATION: Darling v Waverley Council [2003] NSWLEC 327

PARTIES:
APPLICANTS
N M and A W D Darling
RESPONDENT
Waverley Council
.

FILE NUMBER(S): 10924 of 2003

CORAM: Moore C

KEY ISSUES: Development Application :-
Heritage impact.
.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Evidence Act 1995
Land and Environment Court Act 1979
Waverley Local Environmental Plan
Waverley Development Control Plan 2
.

CASES CITED: Goldin & Anor. v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 121 LGERA 101;
Piano v Woollahra Municipal Council 71 LGERA 62;
.

DATES OF HEARING: 17 and 18 December 2003
.

EX TEMPORE
JUDGMENT DATE :
12/18/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr J E Robson, barrister
SOLICITORS
Aitken McLachlan Thorpe
RESPONDENT
Mr D Wilson, barrister
SOLICITORS
Staunton Beattie

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10924 of 2003 Moore C 18 December 2003
N M Darling and A W D Darling
Applicants

v
Waverley Council
Respondent
Judgment

1 . This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act against the refusal by Waverley Council ("the council") on 22 July 2002 of Development Application L066/2003.

2 . The contested works which are the subject of the appeal relate to the construction of a garage, including the creation of an aperture in a roadside retaining wall, at 57 Gardyne Street, Bronte.
3 . The works are adequately described in the statement of evidence of Mr B McDonald as being works for which the applicants seek:

to provide secure on site car parking for the family and also to address the present extreme inconvenience of not being able to find parking in reasonable proximity to the house during periods of heavy demand from street parking generated by visitors to the beach, park and cafes in Bronte Road .

4 . Continuing further in his statement of evidence Mr McDonald deals with the proposed construction and methodology in the following terms:

The proposed driveway would be an open cut excavation centred between the existing street trees maintaining safe access along the public footpath at all times through the use of a temporary diversion bridge with brief closures on two occasions for approximately half a day. A reinforced concrete slab, over which the topsoil would be backfilled, would span the driveway, and the grass and footpath would be reinstated. A timber and wire fence would be provided between the garage entry and the footpath similar to fences recently erected in Mirimar Avenue.

The stones taken out of the wall for the opening would be carefully stored, and reused in the curved entrance. New stone facing would line the driveway further into the opening, from the point where the salvaged stone became exhausted.
A concrete upturn beam would be set back over the opening at a point where some 2.100 metres headroom is achieved, and contained between the stone-faced walls of the driveway entry. The beam…

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: [2003] NSWLEC 327
Decision Date: 12/18/2003

CaseChat Overview and Summary

The applicants, Mr. and Mrs. Darling, appealed to the Land and Environment Court of New South Wales against Waverley Council's refusal of their development application for a garage at 57 Gardyne Street, Bronte. The main issues contested by the council were whether the impact of the proposed aperture in the upper retaining wall was acceptable and if permitting such an aperture would set an unacceptable precedent. The applicants argued that the description in the Waverley Local Environment Plan did not apply to the wall, the change constituted adaptive reuse, and, given the heritage evidence, the proposal should be acceptable. The council maintained that the description in the Local Environment Plan applied to the upper wall, the proposal for the aperture would destroy the integrity and value of the entire intact section of the divided roadway, and the proposal was unacceptable.

The court considered the interpretation of the definition in the Local Environment Plan, which was in dispute. The court concluded that the definition probably related only to one wall, but that did not significantly impact the proceedings. The court also examined the impact of the proposed aperture in the wall, considering criteria established by the New South Wales Heritage Council. The court found that the proposal did not constitute adaptive reuse and that the evidence of Mr. Stapleton concerning the impact on the integrity of the intact section of Gardyne Street was unacceptable. However, the court acknowledged that there were competing claims for public and private benefits.

The court held that, although it had sympathy for the applicants' difficulties in accessing their property, it was not sufficient to trigger the court to set aside the broader public interest in retaining the heritage item. The court dismissed the appeal and refused the development application for the construction of a garage at 57 Gardyne Street, Bronte.

Orders