Hewett v Waverley Council - [2015] NSWLEC 1297

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Hewett v Waverley Council [2015] NSWLEC 1297
Hearing dates: 1, 2 and 5 June 2015
Date of orders: 09 July 2015
Decision date: 09 July 2015
Jurisdiction: Class 1
Before: Tuor C
Decision:
1. The appeal is dismissed.
2. The development application (DA-100/2014) for the construction of a vehicular access ramp/driveway within the road reserve of Dellview St, providing access to hardstand car spaces located in the front setback to 20 and 22 Dellview St, Tamarama, is refused.
3. The exhibits, except Exhibits 2, A and B, are returned.

Catchwords: DEVELOPMENT APPLICATION: vehicular access ramp/driveway within the road reserve and hardstand parking area, impact on streetscape, landscape setting and loss of vegetation, vehicular movements.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Roads Act 1993
Local Government Act 1993
Waverley Local Environmental Plan 2012
Cases Cited: Ezzy Architects v Leichhardt Council [2014] 1178
Davies v Penrith City Council [2013] NSWLEC 1141
Pafburn v North Sydney Council [2005] NSWLEC 444
Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472).
Valen Properties v Hurstville City Council [2015] NSWLEC 1045
Zhang v Canterbury Council [2001] NSWCA 167
Texts Cited: Valen Properties v Hurstville City Council [2015] NSWLEC 1045
Zhang v Canterbury Council [2001] NSWCA 167
Category: Principal judgment
Parties:
Craig and Jane Hewett (Applicant)
Waverley Council (Respondent)
Representation:
Counsel:
Mr N Eastman (Applicant)

Solicitors:
Ms D Slimnicanovski of Gadens Lawyers (Applicant)
Mr S Patterson of Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 10048 of 2015

Judgment

This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Waverley Council (council) of a development application (DA-100/2014) for the construction of a vehicular access ramp/driveway within the road reserve of Dellview St, providing access to hardstand car spaces located in the front setback to 20 and 22 Dellview St, Tamarama (site).
The key issues in dispute between the parties are whether the proposal:

would have an unacceptable impact on the streetscape (Contention 1);

provide an unacceptable landscape setting (Contention 2);

result in an unacceptable loss of trees (Contention 3);

is an appropriate design and would result in unacceptable vehicular movements (Contention 4); and

is in the public interest (Contention 7).

Amendments to the proposal, conditions of consent and the agreement of the experts generally resolved the contentions in relation to the grade of the driveway and sightlines (Contention 5) and stormwater infiltration and runoff (Contention 6).

Site and locality

The site is located on the eastern side of Dellview Street and comprises two residential allotments (Lot 2 DP 580641 - 20 Dellview) and Lot 8 DP 10564 - 22 Dellview) and the road reserve in front of 18 to 22 Dellview Street. The residential allotments are rectangular in shape with areas of 479.3sqm (20 Dellview) and 445.9sqm (22 Dellview) and are about 3.5 -5m below…

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 1297
Decision Date: 09 July 2015

CaseChat Overview and Summary

In the matter of Hewett v Waverley Council, the plaintiff, Mr. Hewett, sought approval for a development application related to the construction of a vehicular access ramp and driveway within the road reserve of Dellview St. This access was intended to provide access to hardstand car spaces located in the front setback of properties at 20 and 22 Dellview St, Tamarama. The Council denied the application, prompting Mr. Hewett to appeal the decision to the Land and Environment Court of New South Wales.

The central legal issue before the court was whether the proposed development was consistent with the relevant planning controls and whether it would result in any significant adverse impact on the public or neighbouring properties. The court had to consider the merits of the application, the implications of approving the development, and the extent to which the development would comply with planning laws and regulations. Additionally, the court examined the nature of the site and its surroundings, including the potential impact on traffic and the aesthetic character of the area.

The court dismissed the appeal, finding that the proposed development did not align with the planning controls in place for the area. The court determined that the construction of the driveway within the road reserve would result in a significant adverse impact on the public, particularly in terms of traffic safety and the potential for increased congestion. Furthermore, the court found that the development would negatively affect the character of the area, given its location within a road reserve. Consequently, the court upheld the Council's decision to refuse the development application.

Orders

Orders of the court

1. The appeal is dismissed.

2. The development application (DA-100/2014) for the construction of a vehicular access ramp/driveway within the road reserve of Dellview St, providing access to hardstand car spaces located in the front setback to 20 and 22 Dellview St, Tamarama, is refused.

3. The exhibits, except Exhibits 2, A and B, 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hewett v Waverley Council [2015] NSWLEC 1297
Hearing dates:	1, 2 and 5 June 2015
Date of orders:	09 July 2015
Decision date:	09 July 2015
Jurisdiction:	Class 1
Before:	Tuor C
Decision:	1. The appeal is dismissed. 2. The development application (DA-100/2014) for the construction of a vehicular access ramp/driveway within the road reserve of Dellview St, providing access to hardstand car spaces located in the front setback to 20 and 22 Dellview St, Tamarama, is refused. 3. The exhibits, except Exhibits 2, A and B, are returned.
Catchwords:	DEVELOPMENT APPLICATION: vehicular access ramp/driveway within the road reserve and hardstand parking area, impact on streetscape, landscape setting and loss of vegetation, vehicular movements.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Roads Act 1993 Local Government Act 1993 Waverley Local Environmental Plan 2012
Cases Cited:	Ezzy Architects v Leichhardt Council [2014] 1178 Davies v Penrith City Council [2013] NSWLEC 1141 Pafburn v North Sydney Council [2005] NSWLEC 444 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472). Valen Properties v Hurstville City Council [2015] NSWLEC 1045 Zhang v Canterbury Council [2001] NSWCA 167
Texts Cited:	Valen Properties v Hurstville City Council [2015] NSWLEC 1045 Zhang v Canterbury Council [2001] NSWCA 167
Category:	Principal judgment
Parties:	Craig and Jane Hewett (Applicant) Waverley Council (Respondent)
Representation:	Counsel: Mr N Eastman (Applicant) Solicitors: Ms D Slimnicanovski of Gadens Lawyers (Applicant) Mr S Patterson of Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	10048 of 2015