Freer v Waverley Council - [2010] NSWLEC 1084

Land and Environment Court

of New South Wales

CITATION: Freer v Waverley Council [2010] NSWLEC 1084

PARTIES:
APPLICANT
Geoff Freer
RESPONDENT
Waverley Council

FILE NUMBER(S): 10059 of 2010

CORAM: Whelan AC

KEY ISSUES: DEVELOPMENT APPLICATION :- front building line - on-site parking space

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C

CASES CITED: Dickson Designs Pty Ltd v Waverley Council [2008] NSWLEC 1295
Emdur v Waverley Council [2009] NSWLEC 1101
Icon Building Services v Waverley Council [2007] NSWLEC 295
Levy v Waverley Municipal Council [2008] NSWLEC 1101
Lucas v Waverley Council [2009] NSWLEC 1390
McArthur v Waverley Council [2009] NSWLEC 1296
Quinton - Margalit Architects v Waverley Council [2008] NSWLEC 1389
Stockland Developments Pty Ltd v Manly Council [2004] NSWLEC 472
Zang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373

DATES OF HEARING: 26 March 2010

DATE OF JUDGMENT:
30 April 2010

LEGAL REPRESENTATIVES:
APPLICANT
Ms Susan Hill (solicitor)
SOLICITORS
Susan Hill & Associates
RESPONDENT
Mr Stephen Patterson (solicitor)
SOLICITOR
Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Whelan AC

30 April 2010

10059 of 2010 Freer v Waverley Council
JUDGMENT

1 ACTING COMMISSIONER: This is an appeal against Waverley Council’s refusal of development application No. 513/2009 under Section 79C of the Environmental Planning and Assessment Act1979.

Background

2 The site is located on the northern side of Birrell Street, Waverley, being just west of the Tamarama Street intersection. The land has a regular shape with a frontage of 6.22m and an area of 259.3m^2.The land is oriented north-south. The existing detached dwelling is one storey at the front and two storeys at the rear of the property. There are no current off-street parking facilities on the site. The surrounding development is typically semi-detached and free standing dwellings of one and two storeys.

3 The site is not listed as an item of heritage significance. It is not within a heritage conservation area or located within a residential character study area.

4 On 5 June 2008, Waverley Council granted consent to an earlier development application (DA 134/08) for alterations and additions to the dwelling, including a front fence.

The Proposal

5 The applicant sought consent for the construction of a new single hard stand car parking space at the front of the existing semi-detached dwelling.

6 The construction of the new single hard stand car parking space will utilise the area provided by: the partially demolished and modified front verandah; and demolition of a portion of the existing front fence. The proposal includes landscaping and the provision of a new driveway and cross over. The proposed hard stand car space will have dimensions of 2.59m in width and 5.52m in length.

7 On 19 November 2009, Waverley Council informed the Applicant, by notice of determination, that the proposal was refused.

8 The relevant statutory planning instruments applying to the subject site are:

Environmental Planning and Assessment Act

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: [2010] NSWLEC 1084
Decision Date: 30 April 2010

CaseChat Overview and Summary

The applicant, Geoff Freer, sought to construct a single hard stand car parking space at the front of his existing semi-detached dwelling, located on Birrell Street, Waverley. Waverley Council refused the development application, citing inconsistencies with the Waverley Local Environmental Plan 1996 (WLEP 1996) and the Waverley Development Control Plan 2006 (WDCP 2006). The primary objections were that the proposed parking space would unreasonably detract from the appearance of the dwelling and streetscape, reduce on-street parking capacity, and compromise pedestrian and vehicular safety. Freer appealed this decision to the Land and Environment Court of New South Wales.

The court had to determine whether the Waverley Council's refusal of the development application was justified under the Environmental Planning and Assessment Act 1979 and the relevant planning instruments. Specifically, the court needed to assess whether the proposed development would unreasonably detract from the appearance and quality of the dwelling and streetscape, reduce on-street parking capacity, and compromise safety.

The court found that the applicant's expert, Mr. G. Shiels, provided detailed evidence addressing each of the Council's concerns. Mr. Shiels argued that the proposal would not unreasonably detract from the appearance of the dwelling or streetscape, as the front yard would be retained with soft landscaping and the existing fence would be reconfigured as a sliding gate. He also demonstrated that the proposal would not result in a net loss of on-street parking spaces and that the driveway crossing would not compromise pedestrian and vehicular safety. The court agreed with Mr. Shiels' expert opinion and found that the control restricting parking in front of the building line was unreasonable and unnecessary in this context. The court concluded that the proposal should be approved as it would not have significant adverse impacts on the locality.

The court allowed the appeal and ordered that the development proceed in accordance with the approved development conditions, including the "Hardstand Parking Plan." The exhibits, except for Exhibit "A," were returned. The decision underscores the importance of considering each development application on its merits and the potential for relaxing certain development controls if they are found to be unreasonable or unnecessary.

Orders