Goldberg v Waverley Council - [2008] NSWLEC 49

Land and Environment Court

of New South Wales

CITATION: Goldberg v Waverley Council [2008] NSWLEC 49

PARTIES:
APPLICANT:
Paul Anton Goldberg
RESPONDENT:
Waverley Council

FILE NUMBER(S): 10058 of 2007

CORAM: Lloyd J

KEY ISSUES: Development Application :- subdivision into two allotments - engineering feasibility of development - visual impact - vehicle and pedestrian access - permissibility of purpose - unlikely to significantly affect the environment - limited visibility for vehicles and pedestrians - public safety

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Pt 5 s 111
Roads Act 1993 s 138 and s 139
Waverley Local Environmental Plan cl 43 and Sch 4

CASES CITED: Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202
CBD Prestige Property Holdings Pty Limited v Hornsby Shire Council [2006] NSWLEC 629
Chamwell Pty. Ltd v Strathfield Council (2007) 151 LGERA 400
Currency Corporation Pty Limited v Wyong Shire Council (2006) 155 LGERA 230
Goldberg v Waverley Council [2007] NSWLEC 259
Parrott v Kiama Council [2004] NSWLEC 77
Peters v Manly Municipal Council (2006) NSWLEC 676
TC Punnett and Associates Pty Limited v Warringah Council (2001) 115 LGERA 314

DATES OF HEARING: 5 February 2008 & 6 February 2008

DATE OF JUDGMENT:
3 March 2008

LEGAL REPRESENTATIVES: APPLICANT:
A E Galasso SC and S J Brockwell (barrister)
SOLICITORS:
Landerer & Company
T F Robertson SC and G B Newport (barrister)
SOLICITORS:
Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Monday, 3 March 2008

LEC No. 10058 of 2007

Goldberg v Waverley Council [2008] NSWLEC 49

JUDGMENT

Background facts

1 HIS HONOUR: The applicant, Mr Paul Anton Goldberg made a development application to Waverley Council in respect of a property known as No. 362 Birrell Street, Tamarama. The proposal is to demolish an existing house on the land, to subdivide the land into two allotments, and to construct a driveway on the unmade section of Birrell Street to which the land has a frontage, to provide access to the land. The council refused the application and Mr Goldberg now appeals to the court.

2 The existing property has an area of about 1,067 square metres. The proposed lot 1 at the front would have an area of 451.4 square metres and the proposed lot 2 at the rear would have an area of 615.6 square metres. The subject land is zoned 2(a) Residential under the Waverley Local Environmental Plan 1996 (“the LEP”) and the proposed subdivision for residential purposes on that land is permissible with development consent.

3 The unmade section of Birrell Street on which the new driveway would be constructed is a public road within the meaning of the Roads Act 1993, but is zoned 6(a) Open Space under the LEP. The council is the roads authority for that road under the Act. The unmade section of Birrell Street at present provides pedestrian access to the subject property and to two other properties. It also provides pedestrian access from the constructed section of…

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: [2008] NSWLEC 49
Decision Date: 3 March 2008

CaseChat Overview and Summary

In Goldberg v Waverley Council, Paul Anton Goldberg appealed against the Waverley Council's refusal of a development application concerning a property at No. 362 Birrell Street, Tamarama. The proposal was to demolish an existing house on the land, subdivide the land into two allotments, and construct a driveway on the unmade section of Birrell Street to provide access to the land. The court was required to decide several issues, including whether the proposed construction of an access way within the unmade portion of Birrell Street was an appropriate use of a public asset for a private purpose and whether there was a necessity for it. The court also considered whether the proposed subdivision complied with a planning principle and whether the proposed vehicle and pedestrian access was legally permissible and properly categorized.

The court found that the proposed driveway was not an appropriate use of a public asset for a private purpose due to the significant interference with the present uses of the area at the commencement of the proposed driveway. The court also concluded that the proposed subdivision complied with the planning principle as the applicant had provided sufficient geotechnical information and the proposed building envelopes and footprints were adequately constrained. Regarding the proposed vehicle and pedestrian access, the court determined that the driveway was legally permissible and properly categorized as a road rather than a private driveway for residential purposes. However, the court refused consent for the construction of the driveway under s 139 of the Roads Act due to unresolved safety issues for pedestrians and drivers.

The court granted consent to the demolition of the existing house and for the subdivision of the property into two allotments, subject to satisfactory conditions. The court refused consent for the construction of the driveway within the unmade section of Birrell Street. The parties were directed to file draft conditions of consent to give effect to this judgment within seven days.

Orders