Levy v Waverley Municipal Council - [2008] NSWLEC 1101

Land and Environment Court

of New South Wales

CITATION: Levy v Waverley Municipal Council [2008] NSWLEC 1101

PARTIES:
APPLICANT
Isaac Levy
RESPONDENT
Waverley Municipal Council

FILE NUMBER(S): 11187 of 2007

CORAM: Moore C

KEY ISSUES: Development Consent :-
Conditions of consent
Parking

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Zhang v Canterbury City Council (2001) 115 LGERA 373

DATES OF HEARING: 19 and 27 February 2007

EX TEMPORE JUDGMENT DATE: 27 February 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr M McMahon, solicitor
M E McMahon & Associates
RESPONDENT
Mr S Patterson, solicitor
Wilshire Webbb Staunton Beattie

JUDGMENT:

THE LAND AND

ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

27 February 2008

11187 of 2007 Levy v Waverley Municipal Council

JUDGMENT

1 COMMISSIONER : Mr and Mrs Levy live in a Californian bungalow in North Bondi – a dwelling which from its appearance was erected in the period prior to the Second World War. At the present time, the house has a garage at its rear on the western side accessed by a narrow driveway from Murriverie Road. Mr and Mrs Levy have obtained consent from Waverley Council for alterations and additions to a house to add a family room extension and storage basement but were refused permission for a carport structure in front of the building.

2 They now seek the consent of the Court to a revised version of the proposed car parking in the front setback. This revised version of the parking no longer requires a carport structure but does propose the demolition of part of the northern facade of the front porch of the house and the insertion of a car parking space at an angle effectively utilising the present driveway with a minor demolition of the front fence of less than 1 m in extent.

3 A variety of matters are raised by the Council in opposition to this proposal. For the main, they come from the provisions of the Waverley Development Control Plan and the parts of that plan dealing with dwelling house development (Part D1) and land use and transport (Part I1).

4 Before turning to the merits of the proposal, it is appropriate to provide a little more detail on of the garage and driveway that exist on site at present. The existing garage at the rear of the house is to be demolished and the significant portion of its space incorporated in the new family room. The driveway, if the car parking spaces as presently proposed were not to be permitted, will remain as it is. That driveway is 2.55 m wide from the boundary fence to the face of the house and, on the inspection, observed to be capable of accommodating up to four cars parked in a horizontally stacked arrangement. The present parking and driveway slopes somewhat (but not excessively) from the front of the site towards the garage.

5 What is…

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 1101
Decision Date: 27 February 2008

CaseChat Overview and Summary

The Land and Environment Court of New South Wales considered the case of Levy v Waverley Municipal Council, where Isaac Levy, the applicant, sought development consent for alterations and additions to his North Bondi home, including a revised proposal for car parking in the front setback. The Waverley Municipal Council opposed the proposal on various grounds, primarily citing non-compliance with the Waverley Development Control Plan (DCP). The court was required to determine whether the applicant's revised proposal for car parking complied with the relevant provisions of the DCP and whether there were sufficient reasons to grant consent despite the non-compliance.

The court found that the applicant's proposal for car parking in the front setback, while an improvement over the original carport structure, still did not comply with several key provisions of the DCP. Notably, the proposal involved the demolition of part of the house's front porch, which the DCP expressly prohibits for the purpose of providing car parking. Additionally, the proposal sought to relocate one of the existing de facto parking spaces into the front setback, which was not compliant with the DCP's requirement that all parking be behind the building line at the front of the dwelling. The court noted that the applicant's proposal for two car parking spaces also exceeded the maximum permitted provision for residential dwellings with two to three bedrooms, as stipulated in the DCP.

Given these significant non-compliances with the DCP, the court held that there were no compelling reasons to grant consent for the proposed parking element. The court emphasised the importance of adhering to the DCP, as highlighted in the decision of Zhang v Canterbury City Council. Consequently, the appeal was dismissed, and the applicant's proposal for car parking in the front setback was not approved.

Orders