Dreadnought Trading Pty Ltd v Leichhardt Municipal Council

[2006] NSWLEC 479

Land and Environment Court

of New South Wales

CITATION:

Dreadnought Trading Pty Ltd v Leichhardt Municipal Council [2006] NSWLEC 479

PARTIES:

APPLICANT
Dreadnought Trading Pty Ltd

RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S):

10319 of 2006

CORAM:

Murrell C

KEY ISSUES:

Appeal :- Development application, car parking restriction, access driveways, narrowness of street, lack of on-street parking, amenity of the area, equity between properties

LEGISLATION CITED:

Environmental Planning and Assessment Act
Development Control Plan No. 21

DATES OF HEARING:

01/08/2006

EX TEMPORE JUDGMENT DATE:

08/01/2006

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Jellie, solicitor
SOLICITORS

RESPONDENT
Ms J Walsh, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

1 August 2006

10319 of 2006 Dreadnought Trading Pty Ltd v Leichhardt Municipal Council

JUDGMENT

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act (the Act). The council approved a development for four dwelling units on the property known as 19A Wharf Road, Birchgrove, in November 2004.

2 A s 96 application was submitted to council in September 2005 for a number of matters including the widening of the access driveway to the property. The council determined the modification on 14 February 2006 and approved a number of amendments to the plans. However, the issue of widening of the driveway was not approved by the council.

3 It is noted that there are a number of resident objectors to the proposed development who reside in Wharf Road and surrounding streets. They expressed concern about the loss of on-street parking in an area where parking is at a premium and reference was made to the Development Control Plan No. 21 that calls for single driveways on the northern side of Wharf Road and in particular the car parking restriction for access driveways is because of the narrowness of the street, the lack of on-street parking, the amenity of the area, and equity between properties as contained in 2.51 of DCP No. 21.

4 The council has come here today with consent orders and now raises no objection to an amended version of driveway. Two driveways were originally submitted in the s 96 application and the applicant has amended the access to a joint driveway of a maximum 6 m at the kerb splayed to 6.5 at the property boundary. The Court has had the benefit of being on-site this morning and also has the benefit of a joint report to the proceedings. Mr R Logan and Mr Kenneth Hollyoak provided a joint report and they agree that a combined driveway of the dimension stated above is appropriate. They have indicated that the plan as originally approved would not allow left-hand movements from Wharf Road into the western most car space for the proposed development.

5 The Court can see no reason as to why the s 96 modification should not be granted having regard to the fact that there will be no reduction in on-street parking by the proposed amendment. The drainage pits have been reduced in size and there is not adequate space between the existing driveway and the adjoining property’s driveway for a car and the widening of the driveway will not reduce the on-street parking for Wharf Road. There are three on-street parking spaces that can be accommodated on the eastern side of the driveway and that will continue with the proposed modification.

6 The Court as I stated having regard to council’s development control plan which I must give central focus consideration and determination. However, in the circumstances of the case I am satisfied that there will be no adverse impact on adjoining properties and that the proposed widening of the driveway as now agreed to between the experts should be agreed to by the Court. I am persuaded no adverse impact would result from the modification and there is justification for a variation to Council’s DCP in terms of the width of the combined driveway access to the property.

7 Accordingly on the basis of the evidence to the Court, the formal orders by consent are:

1. The s 96(6) appeal for the property known as 19A Wharf Road, Birchgrove, is upheld.

2. The modification application to widen the driveway to 6 m at the kerb, is approved subject to the consolidated set of conditions in Annexure ‘A’ wherein the conditions amended by this consent are numbered 2, 2A, 2B, 12 and 28.

3. The exhibits with the exception of 3 and 4 are returned to the parties.

___________________
J S Murrell
Commissioner of the Court
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