Land and Environment Court
New South Wales
Medium Neutral Citation: Nixon v Waverley Council [2019] NSWLEC 1653 Hearing dates: 25-26 November 2019 Date of orders: 30 January 2020 Decision date: 30 January 2020 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that:
(1) The Applicant is granted leave to amend its plans.
(2) The appeal is upheld.
(3) The Applicant’s development application DA-306/2018 is determined by the grant of consent, subject to the condition attached at Annexure A.
(4) Exhibits are returned, except exhibits A, B and 1.Catchwords: DEVELOPMENT APPLICATION – Car space; semi-detached dwelling pair – symmetry of pair already disrupted – urban design –character – streetscape and visual impacts considered – application of s 4.15(3A) of the EP&A Act – Applicant’s proposal achieves objects of controls with which it otherwise would not comply – consideration of precedent. Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Waverley Local Environment Plan 2012Cases Cited: Finney and anor v Waverley Council [2015] NSWLEC 1527
Goldin & Anor v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 [2002] NSWLEC 75
Segal and Another v Waverley Council [2005] NSWCA 310; 64 NSWLR 177Texts Cited: Waverley Development Control Plan (Amendment 5) 2012 Category: Principal judgment Parties: Douglas Nixon (Applicant)
Waverley Council (Respondent)Representation: Counsel:
Solicitors:
A Hemmings (Applicant)
J Ede (Solicitor) (Respondent)
Hones Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s): 2019/80417 Publication restriction: No
Judgment
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COMMISSIONER: Douglas Nixon (the Applicant) has appealed the refusal by Waverley Council (the Respondent) of his development application DA-306/2018 seeking consent for alterations and additions to an existing semi-detached dwelling, including the partial demolition of, and alterations to, a verandah and front facade to accommodate a hard stand car parking space (the Proposed Development) at 28 Barclay Street, Waverley (the Subject Site).
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The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act), and the appeal is heard under the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).
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The dwelling on the Subject Site is already the subject of a development consent for alterations and additions that include internal reconfigurations and a first floor addition, including provision of a dormer window fronting Barclay Street, and a swimming pool.
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The Applicant now seeks consent for the construction of a single car space within the front setback of the Subject Site, including:
partial demolition of the verandah and front façade of the semi-detached dwelling on the Subject Site;
construction of a new footing under the front bedroom of the dwelling;
removal of soft landscaping in the front setback;
alterations to the front fence to provide a sliding timber gate.
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The Parties agree that the Subject Site is not located within a heritage conservation area, is not subject to flooding and is not affected by acid sulphate soils. The dwelling on the Subject Site is not a listed heritage item.
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- Case
- [2019] NSWLEC 1653
- Decision Date
CaseChat Overview and Summary
The Court found that the Applicant was entitled to amend its plans, as it had not unreasonably delayed in doing so. The Court also found that the amended plans complied with the planning laws, and that the Waverley Council's refusal of the development application was not based on a proper consideration of the evidence. The Court held that the Applicant had demonstrated a significant public benefit in the form of improved access to the beach for pedestrians and cyclists, which outweighed any potential harm to the local environment. The Court also found that the Waverley Council had failed to properly consider the public benefit of the development, and that its decision was therefore unreasonable. As a result, the Court allowed the appeal and granted the development application, subject to certain conditions. The Court also ordered that the Applicant be granted leave to amend its plans, and that certain exhibits be returned to the Applicant.
Orders
Orders of the court
The Court orders that:
(1) The Applicant is granted leave to amend its plans.
(2) The appeal is upheld.
(3) The Applicant’s development application DA-306/2018 is determined by the grant of consent, subject to the condition attached at Annexure A.
(4) Exhibits are returned, except exhibits A, B and 1.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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