Hales v Parramatta City Council - [2015] NSWLEC 1210

Land and Environment Court

New South Wales

Medium Neutral Citation: Hales v Parramatta City Council [2015] NSWLEC 1210
Hearing dates: 22 May 2015
Date of orders: 17 June 2015
Decision date: 17 June 2015
Jurisdiction: Class 1
Before: Tuor C
Decision:
1. The appeal is dismissed.
2. The development application (505/2014) to construct an extension of a driveway within the front setback area and a second vehicle crossing with a gate at 84 Eastwood Avenue, Epping, is refused.
3. The exhibits, except Exhibits 1 and A, are returned.

Catchwords: DEVELOPMENT APPLICATION: extension of driveway and a second vehicle crossing with a gate. Impact on character of the area.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979 (LEC Act)
Parramatta Local Environmental Plan 2011
Cases Cited: Davies v Penrith City Council [2013] NSWLEC 1141
Pafburn v North Sydney Council [2005] NSWLEC 444
Category: Principal judgment
Parties:
James and Emily Hales (Applicant)
Parramatta City Council (Respondent)
Representation:
Counsel:
Mr M Staunton (Applicant)

Solicitors:
Mr G Hartley of Hartley Solicitors (Applicant)
Mr A Gough of Storey Gough Lawyers (Respondent)

File Number(s): 10233 of 2015

Judgment

This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Parramatta City Council (council) of a development application (505/2014) to construct an extension of a driveway within the front setback area and a second vehicle crossing with a gate at 84 Eastwood Avenue, Epping (site).
The key issue in dispute between the parties is whether the proposal is inconsistent with the character of the area (Contention 1).

Site and locality

The site is located on the northern side of Eastwood Avenue. It is rectangular in shape with a frontage of 30.48m and an area of 1532sqm. The site is developed with a two storey dwelling that has been recently extended with a new driveway on the western side boundary and turning bay forward of the house. The driveway leads to a porte-cochere which provides covered access to the house and to the double garage located at the rear of the lot.
The site adjoins residential development and the locality is predominantly one and two storey dwellings in landscaped settings. The subdivision pattern is of allotments with frontages of about 15m and the site and one other site are the only “double blocks” in the street, although the site is on one title.

Planning controls

The site is zoned R2 Low Density Residential under Parramatta Local Environmental Plan 2011 (the LEP) and the development is permissible with consent. Clause 2.3(2) of the LEP provides that regard must be had to the objectives of the R2 Zone. The site is within the Epping/Eastwood Conservation Area (HCA) and under cl 5.10(4) of the LEP the effect of the proposed development on the heritage significance of the HCA must be considered. The council did not contend that these matters were not satisfied.
Parramatta Development Control Plan 2011 (the DCP) is relevant. Part 3 – Development…

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: [2015] NSWLEC 1210
Decision Date: 17 June 2015

CaseChat Overview and Summary

The case of Hales v Parramatta City Council involved a dispute between the applicant, Mr. Hales, and the respondent, Parramatta City Council, regarding a development application (505/2014) for a property located at 84 Eastwood Avenue, Epping. Mr. Hales sought approval to construct an extension of a driveway within the front setback area and a second vehicle crossing with a gate. The Parramatta City Council refused the application, prompting Mr. Hales to appeal the decision to the Land and Environment Court of New South Wales.

The central legal issue before the court was whether the Parramatta City Council's refusal of the development application was justified under the relevant planning legislation. Specifically, the court had to determine if the proposed driveway extension and vehicle crossing complied with the local planning instruments and whether they conformed to the development standards and objectives outlined in the applicable planning policies and guidelines.

In reaching its decision, the court carefully reviewed the evidence and submissions presented by both parties. It found that the proposed development did not align with the planning policies aimed at preserving the character of the area and maintaining appropriate setbacks. The court held that the extension of the driveway into the front setback area and the addition of a second vehicle crossing with a gate would significantly alter the existing landscape and contravene the relevant planning provisions. Consequently, the court dismissed the appeal and upheld the council's decision to refuse the development application. The exhibits, except for Exhibits 1 and A, were returned to the parties.

Orders

Orders of the court

1. The appeal is dismissed.

2. The development application (505/2014) to construct an extension of a driveway within the front setback area and a second vehicle crossing with a gate at 84 Eastwood Avenue, Epping, is refused.

3. The exhibits, except Exhibits 1 and A, are returned.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hales v Parramatta City Council [2015] NSWLEC 1210
Hearing dates:	22 May 2015
Date of orders:	17 June 2015
Decision date:	17 June 2015
Jurisdiction:	Class 1
Before:	Tuor C
Decision:	1. The appeal is dismissed. 2. The development application (505/2014) to construct an extension of a driveway within the front setback area and a second vehicle crossing with a gate at 84 Eastwood Avenue, Epping, is refused. 3. The exhibits, except Exhibits 1 and A, are returned.
Catchwords:	DEVELOPMENT APPLICATION: extension of driveway and a second vehicle crossing with a gate. Impact on character of the area.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 (LEC Act) Parramatta Local Environmental Plan 2011
Cases Cited:	Davies v Penrith City Council [2013] NSWLEC 1141 Pafburn v North Sydney Council [2005] NSWLEC 444
Category:	Principal judgment
Parties:	James and Emily Hales (Applicant) Parramatta City Council (Respondent)
Representation:	Counsel: Mr M Staunton (Applicant) Solicitors: Mr G Hartley of Hartley Solicitors (Applicant) Mr A Gough of Storey Gough Lawyers (Respondent)
File Number(s):	10233 of 2015