Davis v North Sydney Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Davis v North Sydney Council [2017] NSWLEC 1555

Hearing dates:

21,24 July 2017, 18 August 2017

Date of orders:

02 January 2018

Decision date:

05 October 2017

Jurisdiction:

Class 1

Before:

Brown C

Decision:

(1) The appeal is upheld.

(2) Development Application No. 184/16 for alterations and additions to an existing dwelling house at 2 Wilson Street, Cammeray is approved subject to the conditions at Annexure 'A'.

(3) The exhibits are returned with the exception of exhibits C, D and 1.

Catchwords:

DEVELOPMENT APPLICATION: alterations and additions to an existing dwelling house – whether there is a detrimental effect on the heritage conservation area in relation to the excavated garage and the design of the additions to the rear of the existing dwelling – whether consent can be granted under the Roads Act 1993

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
North Sydney Local Environmental Plan 2013
Roads Act 1993

Cases Cited:

Botany Bay City Council v Pet Carriers International Pty Limited [2013] NSWLEC 147
Connery v Manly Council [1999] NSWLEC 284; (1999) 105 LGERA 451;
Gibson v Mosman Municipal Council [2001] NSWLEC 134; 114 LGERA 416;
Goldberg v Waverley Council [2007] NSWLEC 259

Texts Cited:

Practice Note – Residential Class 1 Development Appeals

Category:

Principal judgment

Parties:

Matthew Davis (First Applicant)
Megan Davis (Second Applicant)

  North Sydney Council (Respondent)

Representation:

Counsel:
Mr P Tomasetti SC (Applicant)
Mr T To, barrister (Respondent)

  Solicitors:
DG Briggs & Associates (Applicant)
Sparke Helmore.(Respondent)

File Number(s):

2017/73566

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application No. 184/16 for alterations and additions to an existing dwelling house at 2 Wilson Street, Cammeray (the site). The alterations and additions include the excavation of a single entrance to a double garage through a sandstone cliff off Wilson Street with a tunnel to provide access to a lift to the dwelling above. The proposal also includes the construction of a two storey rear addition to the existing dwelling.

2. The appeal was subject to mandatory conciliation and arbitration on 21 July 2017 under s 34AA of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34AA(2)(b), and the proceedings dealt with forthwith pursuant to s 34AA(2) b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34AA(2)(b)(ii). On 18 August 2017, I heard a Notice of Motion to reopen the hearing to provide additional submissions on the Court’s ability to grant consent under s 138 of the Roads Act 1993.

3. The council maintained that the application should be refused because it would have a detrimental effect on the heritage conservation area where the site is located in relation to the excavated garage and the design of the additions to the rear of the existing dwelling. The council also maintained that…