Kidron v Waverley Council - [2006] NSWLEC 103

Land and Environment Court

of New South Wales

CITATION: Kidron v Waverley Council [2006] NSWLEC 103

PARTIES:
Applicant:
Danny Kidron Architects Pty Ltd
Respondent:
Waverley Council

FILE NUMBER(S): 11618 of 2004

CORAM: Roseth SC

KEY ISSUES: Development Application :- impact on heritage significance

CASES CITED: Darling v Waverley [2003] NSWLEC 327;
Segal & Anor v Waverley Council [2004] NSWLEC 363;
Segal & Anor v Waverley Council [2005] NSWCA 310

DATES OF HEARING: 10/02/2006 and 03/03/2006

DATE OF JUDGMENT:
03/08/2006

LEGAL REPRESENTATIVES: Applicant:
Mr T Robertson SC instructed Ms R Read solicitor of Aitken McLachlan Thorpe
Respondent:
Mr D Wilson, barrister instructed by Mr G Hartley, solicitor of Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

8 March 2006

11618 of 2004 Danny Kidron Architects v Waverley Council

JUDGMENT
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 Senior Commissioner: This is an appeal against the refusal by Waverley Council (the council) of a development application to demolish the existing buildings and construct a new house and garage at 57 Gardyne Street, Bronte.

The site

2 The site is on the western side of Gardyne Street, just east of its intersection with Pacific Street. It is rectangular in shape, with a width of about 20m and an area of 714m2. There is a 9m-fall from rear to front. The site now accommodates a single-storey cottage without on-site parking. There is a sandstone retaining wall at the site’s frontage that extends along the street. Gardyne Street is a split-level road, and there is another sandstone retaining wall in the centre of the road between the two levels.

3 It is common ground, at least for the purposes of these proceedings, that the stone wall separating the two levels in the street is a listed heritage item. (The applicant contended that the listing was unclear and may refer only to the wall in the centre of the road; however, it did not argue this point.)

4 The surrounding development is mainly single-storey houses. On the site adjoining to the north, 55A Gardyne Street, a large multi-level house including a garage opening in the sandstone retaining wall has received development consent, though it has not yet been constructed.

The proposal and its history

5 In December 2003 the Court heard an appeal against the council’s refusal of an application to construct a double garage on the subject property involving a similar “hole in the wall” to the current application. That application did not include a new house. In an ex-tempore…

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: [2006] NSWLEC 103
Decision Date: 03/08/2006

CaseChat Overview and Summary

The case of Kidron v Waverley Council involved an appeal against the refusal by Waverley Council of a development application by Danny Kidron Architects Pty Ltd (the applicant) to demolish the existing buildings and construct a new house and garage at 57 Gardyne Street, Bronte. The applicant's proposal included a garage opening in the sandstone retaining wall, which the council had previously refused in a similar application. The court was required to decide whether the proposed garage opening would have an unreasonable impact on the heritage significance of the wall and the streetscape, whether the rear setback of the proposal was smaller than the established rear setback in the street, whether the proposed dwelling was too large, and whether the proposed excavation was excessive.

The court concluded that the impact of the garage opening on the heritage significance of the wall was acceptable, as the wall was no longer intact due to a previous decision allowing a similar opening on an adjoining property. The court also found that the rear setback of the proposal was not smaller than the established rear setback, and that the proposed dwelling's Floor Space Ratio (FSR) was only marginally over the permissible limit. Finally, the court accepted that the applicant's conditions for excavation resolved any concerns regarding potential damage to adjoining properties.

The court granted development consent subject to detailed conditions, including modifications to certain conditions related to the garage entrance, development contribution, and public liability insurance. The orders of the court included the grant of consent subject to conditions, the return of exhibits, and the deletion or modification of certain conditions.

In summary, the Land and Environment Court of New South Wales granted the applicant's appeal and allowed the development application subject to conditions, finding that the proposed garage opening and other aspects of the proposal did not unreasonably impact on the heritage significance of the wall, the streetscape, or neighbouring properties.

Orders