Lucas v Waverley Council - [2009] NSWLEC 1390

Land and Environment Court

of New South Wales

CITATION: Lucas v Waverley Council [2009] NSWLEC 1390

PARTIES:
APPLICANT
Peter Lucas
RESPONDENT
Waverley Council

FILE NUMBER(S): 10591 of 2009

CORAM: Fakes C

KEY ISSUES: DEVELOPMENT APPLICATION :- Garage and landscaping

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 29 October 2009

DATE OF JUDGMENT:
27 November 2009

LEGAL REPRESENTATIVES:
APPLICANT
Ms J Reid (Solicitor)
SOLICITOR
Pikes Lawyers
RESPONDENT
Ms C Morton (Solicitor)
SOLICITOR
Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

27 October 2009

10591 of 2009 Peter Lucas v Waverley Council

JUDGMENT

1 COMMISSIONER: This is an appeal pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against Waverley Council’s (the council) refusal of a s 82A Review Application for Development Application 579/08 for a garage and landscaping at the front of 369 Bronte Road, Bronte (the site).

Background

2 There have been previous development applications relating to 369 Bronte Road. Relevant to this current matter is DA 812/04 where council granted Deferred Commencement Consent on 26 July 2005 for alterations and additions to the heritage listed dwelling on the property and the erection of 3 townhouses at the rear of the site. No off-street parking was indicated on the application.

3 Development Application 579/2008 was lodged with council on 3 October 2008 and sought approval for the construction of a double garage towards the front western side of the property with landscaping and safety railings above, the entry stairs re-positioned to the east of the garage, and garbage storage and water tank beneath landscaped terraces to the east of the stairs. Pedestrian access to the rear townhouses was retained along the eastern boundary.

4 Council refused this application on 6 February 2009. In refusing the application, the council also advised the owner that no approval existed for the provision of any off-street parking on the site.

5 A review of the determination of DA 579/2008 was lodged by the applicant, under s82A of the Environmental Planning and Assessment Act 1979, with council on 5 May 2009. The applicant sought consent to construct a garage, entry stairs, waste storage areas and landscaping within the front yard of the site. The plans submitted with the request for review reduced the width of the garage from a double garage to effectively a 11/2 width garage (a reduction of 770 mm from the original DA), set back the garage 1.8 m from the front boundary (an increase of 1.56 m from the original DA) and repositioned the front entry stairs to align with the front door of the dwelling (the approved position).

6 The review was advertised for 30 days in accordance with Waverley Development Control Plan 2006 (WDCP), Part C3 – Advertised and Notified Development. Four submissions were received that raised issues in relation to loss of street parking, increased noise levels, overdevelopment of the site, undesirable precedent, loss of character of a heritage dwelling, contrary to…

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.

Keep reading for free

Create a free CaseChat account to read Lucas v Waverley Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWLEC 1390
Decision Date: 27 November 2009

CaseChat Overview and Summary

In this appeal, the applicant sought to construct a garage and associated landscaping in the front yard of a heritage listed property. The council had previously approved a development application for alterations to the dwelling and the construction of three townhouses at the rear of the property, but no off-street parking had been indicated. The applicant's development application sought to construct a garage at the front of the property with landscaping and safety railings above, the entry stairs re-positioned to the east of the garage, and garbage storage and water tank beneath landscaped terraces to the east of the stairs. The council refused the application, finding that the proposal did not satisfy several aims and objectives of the relevant planning instruments and would have an unacceptable impact on the heritage significance of the dwelling and the streetscape. The applicant then appealed the decision to the Land and Environment Court.

The court found that the applicant's development was not out of character with the existing streetscape, and that the proposal would not dominate the streetscape or obscure views of the dwelling from the street. The court also found that the applicant's development would provide off-street parking and improve the amenity of the area. The court found that the proposed garage would not unreasonably compromise the heritage significance of the dwelling, provided that certain conditions were imposed, such as a setback of 3.5m from the street frontage and changes to the balustrading and landscaping.

The court therefore approved the applicant's development application, subject to the imposition of certain conditions, including a condition that the garage be amended to be setback a minimum 3.5m from the front boundary, have a maximum 4.8m external opening and be positioned adjacent to the western boundary to minimise the visual intrusion of the garage. The court also imposed various compliance conditions relating to the construction and occupation of the development, including conditions relating to the provision of a construction certificate, a security deposit, a long service levy, a site waste and recycling management plan, and a stormwater management plan.

Orders