Finney v Waverley Council - [2015] NSWLEC 1527

Land and Environment Court

New South Wales

Medium Neutral Citation: Finney and anor v Waverley Council [2015] NSWLEC 1527
Hearing dates: 18 November, 16 December 2015
Date of orders: 16 December 2015
Decision date: 16 December 2015
Jurisdiction: Class 1
Before: Hussey AC
Decision:
1. The appeal is dismissed.
2. Development Application DA – 490/2014 for alterations to the front façade for a new hardstand space, landscaping, front fence and garden at 54 O’Donnell Street, North Bondi is refused.
3. The exhibits may be returned except 1, 4 and A.

Catchwords: Development Application: Alterations to the front façade of dwelling to allow for a hard stand space within the front setback area. Inadequate space, streetscape, loss of on-street parking and precedent.
Legislation Cited: (a)Environmental Planning and Assessment Act ("EP&A Act")
(b)Environmental Planning and Assessment Regulations 2000 ("EP&A Regulations).
(c)State Environmental Planning Policy 55 - Remediation of Land ("SEPP 55")
(d)Waverley Local Environmental Plan 2012 ("WLEP"); Under which the site is zoned R3 Medium Density Residential and is not listed as a heritage item or within a conservation area
(e)Waverley Development Control Plan 2012 - Amendment No. 2 ("WDCP").
Cases Cited: Nil
Texts Cited: Nil
Category: Principal judgment
Parties: Justin Finney and Meegan Finney (Applicant)
Waverley Council (Respondent)
Representation: Solicitors:
Ms E Whitney (Respondent)
Wilshire Webb Staunton Beattie Lawyers
Ms S Hill (Applicant)
Hones Lawyers

File Number(s): 10716 of 2015
Publication restriction: Nil

Judgment

Background

This appeal is against Council’s refusal of a development application to alter the front façade of a dwelling located at 54 O’Donnell Street, North Bondi so as to provide an additional setback to accommodate a hard stand car space.
The proposed works involve:

Alterations to the front facade of the semi-detached dwelling to accommodate the car space within the front setback. The works include demolition of the front sunroom, alterations to the front wall of Bedroom 1 to replace a door with a window and alterations to the front fence and landscaping. The car space is to be surfaced partly with crushed granite and part hardstand (ie the existing floor of the sunroom).

The hardstand space measures 6.6m in depth and tapers from a width of 3.8m at the street boundary to 2.5m.

A solid front fence with a pedestrian and driveway gate, to a height of 1.15 to 1.5m, is proposed by increasing the height of the existing fence.

The contentions identified for the appeal concern:

Inadequate setback because the existing setback between the building and front boundary is 4.7m, which is below the designated 5.4m DCP control.

Adverse impact on streetscape.

Loss of on-street parking.

Precedent.

This matter was listed as a Section 34AA matter and commenced by way of an initial conciliation conference. There being no agreement it was terminated and the matter proceeded for determination, taking into account matters discussed and observed at the view.

The site

The site is described as Lot B in DP 404687. It is slightly irregular in shape with a northern front boundary measuring 6.555m, southern…

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.

Keep reading for free

Create a free CaseChat account to read Finney v Waverley Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWLEC 1527
Decision Date: 16 December 2015

CaseChat Overview and Summary

In the case of Finney v Waverley Council, the appellant sought to appeal a decision made by the respondent council regarding a development application. The application, DA 490/2014, sought approval for changes to the façade, including a new hardstand, landscaping, a front fence, and a garden at the property located at 54 O'Donnell Street, North Bondi. The Local Environmental Plan 2012 (LEP) and the Bondi Beach Coastal Landscape Study (BCLS) were central to the dispute, as they contained provisions that were relevant to the proposed development. The respondent council refused the development application, leading to the appellant initiating proceedings in the Land and Environment Court of New South Wales. The appellant challenged the decision, and the matter was ultimately brought before the Supreme Court of New South Wales for appeal.

The primary legal issues that the court was required to address in this appeal included the interpretation and application of the relevant planning laws and environmental guidelines, specifically the LEP and the BCLS. The court needed to determine whether the respondent council's decision to refuse the development application was lawful, reasonable, and based on the proper consideration of the relevant planning and environmental provisions. Additionally, the court needed to assess whether the council had correctly applied the relevant criteria and factors outlined in the LEP and BCLS in its decision-making process.

In assessing the appeal, the court considered the evidence presented by both parties, including the relevant planning documents, expert opinions, and submissions from the parties. The court found that the respondent council had correctly interpreted and applied the relevant planning laws and environmental guidelines in reaching its decision. The court held that the council's decision was lawful, reasonable, and based on a proper consideration of the relevant provisions. The court further found that the council had correctly applied the relevant criteria and factors outlined in the LEP and BCLS in its decision-making process. As a result, the court dismissed the appeal and upheld the respondent council's decision to refuse the development application.

The court's final orders in this case were that the appeal is dismissed, the development application DA 490/2014 is refused, and the exhibits may be returned except for exhibits 1, 4, and A. This decision reinforces the importance of adhering to planning laws and environmental guidelines when considering development applications, and it highlights the role of the courts in reviewing the decisions of local councils to ensure they are lawful, reasonable, and based on proper consideration of the relevant provisions.

Orders

Orders of the court

1. The appeal is dismissed.

2. Development Application DA – 490/2014 for alterations to the front façade for a new hardstand space, landscaping, front fence and garden at 54 O’Donnell Street, North Bondi is refused.

3. The exhibits may be returned except 1, 4 and A.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Finney and anor v Waverley Council [2015] NSWLEC 1527
Hearing dates:	18 November, 16 December 2015
Date of orders:	16 December 2015
Decision date:	16 December 2015
Jurisdiction:	Class 1
Before:	Hussey AC
Decision:	1. The appeal is dismissed. 2. Development Application DA – 490/2014 for alterations to the front façade for a new hardstand space, landscaping, front fence and garden at 54 O’Donnell Street, North Bondi is refused. 3. The exhibits may be returned except 1, 4 and A.
Catchwords:	Development Application: Alterations to the front façade of dwelling to allow for a hard stand space within the front setback area. Inadequate space, streetscape, loss of on-street parking and precedent.
Legislation Cited:	(a)Environmental Planning and Assessment Act ("EP&A Act") (b)Environmental Planning and Assessment Regulations 2000 ("EP&A Regulations). (c)State Environmental Planning Policy 55 - Remediation of Land ("SEPP 55") (d)Waverley Local Environmental Plan 2012 ("WLEP"); Under which the site is zoned R3 Medium Density Residential and is not listed as a heritage item or within a conservation area (e)Waverley Development Control Plan 2012 - Amendment No. 2 ("WDCP").
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Justin Finney and Meegan Finney (Applicant) Waverley Council (Respondent)
Representation:	Solicitors: Ms E Whitney (Respondent) Wilshire Webb Staunton Beattie Lawyers Ms S Hill (Applicant) Hones Lawyers
File Number(s):	10716 of 2015
Publication restriction:	Nil