Goldberg v Waverley Council - [2010] NSWLEC 1044

Land and Environment Court

of New South Wales

CITATION: Goldberg v Waverley Council [2010] NSWLEC 1044

PARTIES:
APPLICANT
Robyn Lee Goldberg
RESPONDENT
Waverley Council

FILE NUMBER(S): 10465 of 2009

CORAM: Pearson C

KEY ISSUES: DEVELOPMENT APPLICATION :- Dwelling house
Road works approval

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Roads Act 1993
Environmental Planning and Assessment Regulation 2000
Waverley Local Environmental Plan 1996
Waverley Development Control Plan 2006 (Amendment No 4)
Draft Waverley Local Environmental Plan 1996 (Amendment No 33)

CASES CITED: Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226
Building Recyclers Investments Pty Ltd v Marrickville Council (2003) 131 LGERA 413
Goldberg v Waverley Council (2007) 156 LGERA 27
Goldberg v Waverley Council [2008] NSWLEC 49
Maxnox Pty Ltd v Hurstville City Council (2006) 145 LGERA 373
Mirvac Projects (No 2) Pty Ltd v Concord Municipal Council (1993) 81 LGERA 441
Parrott v Kiama Council [2004] NSWLEC 77
Rundle v Tweed Shire Council (1989) 68 LGRA 308
Zhang v Canterbury City Council (2001) 115 LGERA 373

DATES OF HEARING: 17, 18, 22 December 2009

DATE OF JUDGMENT:
15 March 2010

LEGAL REPRESENTATIVES: APPLICANT
Mr A Galasso SC
Instructed by Landerer & Company
RESPONDENT
Mr T Robertson SC and Mr G Newport
Insructed by Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

15 March 2010

10465 of 2009 Goldberg v Waverley Council
JUDGMENT

1 Commissioner: This is an appeal pursuant to s97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Waverley Council (the Council) of development application DA148/09 for the erection of a dwelling house on Lot 1 of an approved subdivision at 362 Birrell Street Tamarama (the site).

2 The site is located at the western edge of Tamarama Park, to the east of the intersection of Birrell Street and Cross Street. The site is developed with a single storey house. There is currently no vehicular access to the site. Immediately to the east of the site is a detached dwelling house at 364 Birrell Street which also has no vehicular access. Birrell Street continues east of Cross Street as a public road as defined in the Roads Act 1993: from Cross Street to Ashley Street, and adjoining the site, it is a road vested in the Council; the eastern part which adjoins Tamarama Park is a Crown road. The land slopes steeply down from the street intersection to the east to join Tamarama Park, and is covered with grass and vegetation. There are stairs on the southern side providing access from Tamarama Park up to the street, and a grassed area with bench seat at the street level. The location of the site is shown on the following plan:

3 The Council has applied for that part of Birrell Street adjacent to 362 and 364 Birrell Street, for which it is the owner in fee simple, to be closed.…

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 1044
Decision Date: 15 March 2010

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Commissioner Pearson presided over the appeal of Robyn Lee Goldberg against the Waverley Council's refusal of a development application for a dwelling house on Lot 1 of an approved subdivision at 362 Birrell Street, Tamarama. The Council's refusal was based on concerns regarding the proposed vehicular access to the site and the configuration of the driveway within the site along its western boundary. The applicant sought to construct a three-storey dwelling comprising four bedrooms and car parking for two vehicles. The proposed development application included an application under the Roads Act for approval of building works and excavation over part of the unmade portion of Birrell Street vested in the Council to provide vehicular access to the site, the construction of a turning head adjacent to the vehicular access, and construction of a new pedestrian pathway, steps, viewing platform, and retaining walls.

The legal issues raised in these proceedings included questions of law and the merits of the application. The Council contended that the Court did not have the functions and discretions of the Council in its capacity as determining authority under Part 5 of the Environmental Planning and Assessment Act 1979 or in its capacity as a roads authority under the Roads Act 1993, and that the access way was prohibited development. The applicant argued that these questions of law had been determined by the decision of Biscoe J in Goldberg v Waverley Council (2007) 156 LGERA 27 and the decision of Lloyd J in Goldberg v Waverley Council [2008] NSWLEC 49.

The merits issues related to both the proposed dwelling house and the proposed vehicular access. In relation to the proposed dwelling, the issues were whether the built form was in accordance with the building envelope and maximum excavation controls embodied in the conditions of consent for the subdivision, or the applicable planning controls, and whether it was unacceptable and would result in adverse amenity impacts on Tamarama Park and adjacent lands because of excessive excavation and the building footprint and floor area. In relation to the proposed vehicular access, the issue was whether the construction of the accessway and associated retaining walls alienated existing open space from public use, would have a detrimental visual impact in the pedestrian environment of Tamarama Park, and, as a consequence of its design as a domestic driveway and steep gradients, introduce potential conflicts between pedestrians and vehicles and result in increased noise.

The court concluded that the proposed vehicle access should not be regarded as a private driveway for residential purposes, as it should be considered a public road. Furthermore, the court found that the proposed vehicle access posed significant safety risks for pedestrians and vehicles using the public road, and that consent under the Roads Act to its construction should not be granted. The court also determined that the proposed dwelling did not comply with the relevant planning controls, and that the application for consent to the erection of the dwelling house should be refused.

The final orders of the court were: 1) The appeal is dismissed; 2) Development Application DA148/09 for the erection of a dwelling house on Lot 1 of an approved subdivision at 362 Birrell Street, Tamarama, is refused; and 3) The exhibits, with the exception of exhibit A, are returned.

Orders