Emdur v Waverley Council - [2009] NSWLEC 1101

Land and Environment Court

of New South Wales

CITATION: Emdur v Waverley Council [2009] NSWLEC 1101

PARTIES:
APPLICANT
Martine Emdur
RESPONDENT
Waverley Council

FILE NUMBER(S): 11276 of 2008

CORAM: Taylor C

KEY ISSUES: DEVELOPMENT APPLICATION :- off-street parking in front of the building line; size of space suitable for parking a small car.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Waverley Development Control Plan

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167

DATES OF HEARING: 13/03/2009

EX TEMPORE JUDGMENT DATE: 13 March 2009

LEGAL REPRESENTATIVES:
APPLICANT
Ms S. Hill, solicitor
of Susan Hill & Associates
RESPONDENT
Mr S. Patterson, solicitor
of Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Taylor C

13 March 2009

11276 of 2008 Emdur, Martine v Waverley Council

This determination was given extemporaneously and it has been edited prior to publication
JUDGMENT

1 This matter was conducted at an on-site hearing on 12 March 2009. The appeal is a s 96 appeal under the Environmental Planning and Assessment Act, 1979, to modify a development consent. At the on-site hearing I was provided with the opportunity to view the house, the adjoining properties as well as the other houses along Dudley Street, the location of the subject site.

2 The applicant, Ms Emdur of No. 28 Dudley Street lives in an older style dwelling which, from its appearance, was erected in the period prior to the Second World War. The house was constructed before cars were anticipated for such common use as they are today in the area. Consequently, the house has no provision for on-site parking unlike more modern properties.

3 The desire for on-site car parking is reflected in the numerous alterations to the houses in Dudley Street that have a mixture of on-street garages, hard stands for cars and car ports beyond the front line of the building.

4 Mr Moody, the applicant’s planning expert and Ms Flannery, the respondent’s planning expert, calculated the percentage of properties altered as such in Dudley Street during the course of the on-site hearing. It was agreed between the experts that 52 % of the properties along Dudley Street have been altered so that they now have a carport, a garage or a hard stand to the front line of their building.

5 The owner of the subject site now seeks consent of the Court for a revised version of the proposed car parking space in the property’s front setback. The original application, DA 421/2007, was for a variety of alterations and additions to the existing residence, one of which included the approval of a hard stand area for parking. The various other items were approved but the council refused the component requesting modification of the driveway for a car space and work to the front façade.

6 The revised version of the application involves the demolition of the approximately 1.8 m high solid front fence, removal of part of the veranda…

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: [2009] NSWLEC 1101
Decision Date: 13 March 2009

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Martine Emdur, the applicant, sought an appeal against Waverley Council's decision to refuse certain aspects of a development application for her property at No. 28 Dudley Street. The property, an older-style dwelling, lacks on-site parking, a common feature in more modern properties. The applicant sought consent for modifications to provide off-street parking. The council objected on several grounds, primarily that the proposal would interfere with the building fabric, provide a parking space in front of the building line, and offer an undersized lot for car parking.

The court had to determine whether the proposed modifications would unreasonably detract from the appearance and quality of the dwelling or streetscape, conflict with pedestrian vehicle safety, lead to a loss of on-street parking, or adversely impact the public domain. The court also needed to assess whether the proposal met the objectives outlined in the Waverley Development Control Plan (DCP). These objectives included ensuring that off-street car parking facilities did not detract from the appearance and quality of the dwelling house or streetscape, maximising pedestrian vehicle safety, minimising the loss of on-street car parking, and minimising the loss of views from the public domain.

The court examined the proposal and the evidence presented by both parties. It found that the removal of the front fence and part of the veranda would improve the visibility of the front façade of the property and not unreasonably detract from the appearance and quality of the dwelling or streetscape. The court also concluded that the proposal would not dominate the landscape and would be in keeping with the broader vista of the street. Regarding the size of the parking space, the court determined that a 5 m space was suitable for a small car and that the proposal would result in the retention of a 9.4 m space suitable for two vehicles, thus not contravening the objectives of the DCP. The court further found that the proposal met the objectives of the DCP and would not adversely affect the street's visual amenity, impact pedestrian or vehicular safety, or result in the loss of on-street parking spaces.

The court accepted the applicant's appeal to modify the development consent and ordered that the revised plans must include specific details regarding the gate to the hardstand area, the side wall adjoining No. 26 and its intended height, and the footpath cross-over. The revised and final plans would be retained on the court file.

Orders