McArthur v Waverley Council - [2009] NSWLEC 1296

Land and Environment Court

of New South Wales

CITATION: McArthur v Waverley Council [2009] NSWLEC 1296

PARTIES:
APPLICANT
Christopher McArthur
RESPONDENT
Waverley Council

FILE NUMBER(S): 10438 of 2009

CORAM: Dixon C

KEY ISSUES: DEVELOPMENT APPLICATION :- Hard stand carspace

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Waverley Development Control Plan 2006

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

DATES OF HEARING: 1 September 2009

DATE OF JUDGMENT:
16 September 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr McMahon (solicitor)
SOLICITOR
M E McMahon & Associates
RESPONDENT
Mr Patterson (solicitor)
SOLICITOR
Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Dixon C

16 September 2009

10438 of 2009 Christopher McArthur v Waverley Council
JUDGMENT

Introduction

1 Waverley council has approved alterations and additions to a family home at 7 Cross Street, Bronte. The approved works, when completed, will transform the existing dwelling into a substantial four-bedroom home.

2 However, the approval specifically deleted a hardstand car space and associated works from the approved works.

3 Left without off street parking, the owners lodged a second application for a hardstand car space this time with a gate proposed at the entry to the car space. The second application was also refused. The owners now appeal the refusal of that second application.

4 Generally the issues raised by council include; the length of hard stand car space, it location forward of the front building line and the development’s impact on the streetscape.

5 After a view of the site and a consideration of the evidence, submissions and the relevant matters in section 79C of the Environmental Planning and Assessment Act 1979 I am of the opinion that the application should be refused. The reasons for my decision are set out below.

Background

6 This matter commenced onsite as a section 34 conciliation conference on 1 September 2009. Following the termination of the conference, at the request of the parties, I proceeded to hear and finally dispose of the matter.

7 The following planning instruments control the site:

Waverley Local Environmental Plan

Waverley Development Control Plan

8 Council raises a number of objections to the development because of its non-compliance with certain objectives and provisions of the WLEP and WDCP. Details of the non-compliances are outlined in the agreed statement of facts and contentions filed on 24 July 2009.

9 The site is zoned Residential 2(a) under the WLEP and the proposed development is permissible with consent. The site is not within a heritage or a conservation zone.

10 The development was advertised in accordance with council’s policy and council did not receive a submission. Council determined the application and issued a refusal on 24 March 2009.

11 The development requires removal of part of the front fence and shrubs of the site to allow a 3 m wide opening for a hardstand…

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: [2009] NSWLEC 1296
Decision Date: 16 September 2009

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Christopher McArthur appealed against the Waverley Council's refusal to grant approval for a hardstand car space at the front of his property located at 7 Cross Street, Bronte. The council had previously approved alterations and additions to the property, transforming it into a substantial four-bedroom home. However, the approved works did not include a hardstand car space. McArthur subsequently lodged a second application for a car space, which was also refused. The court considered the legal issues concerning the development application, including the length and location of the proposed car space and its impact on the streetscape.

The court acknowledged that the proposed car space was shorter than the minimum dimensions required by the Waverley Development Control Plan (WDCP) and was located forward of the front building line, both of which were non-compliant with the WDCP. The applicant argued that the car space would improve the amenity of the residence and was consistent with the existing development in the locality. However, the council maintained that the proposed car space would have a detrimental impact on the streetscape, reduce pedestrian safety, and compromise the visual relationship between the front garden and the street. The council further argued that approving the development would be contrary to the objectives and clauses of the WDCP and the Local Environment Plan (LEP).

After considering the evidence, submissions, and relevant planning matters, the court found that the applicant had not provided sufficient justification to warrant a relaxation of the WDCP controls to allow the non-complying car space. The court accepted the council's submission that the proposed car space would have an adverse impact on the streetscape and compromise the objectives of the WDCP. The court also agreed that the loss of one public car space on the street and the need to construct another vehicular crossing would be contrary to the WDCP. Ultimately, the court concluded that approving the application in its current form would be unreasonable and result in an adverse impact on the streetscape and compromise the objectives of the WDCP.

In conclusion, the court dismissed McArthur's appeal and refused the development application. The court made orders dismissing the appeal, refusing development consent for the hardstand car space, and returning the exhibits. The court's decision highlights the importance of considering the broader impact of development proposals on the surrounding neighbourhood and streetscape, as well as the need to comply with relevant planning controls and objectives.

Orders