Nixon v Waverley Council

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 2012
Cases 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 177
Texts Cited:	Waverley Development Control Plan (Amendment 5) 2012
Category:	Principal judgment
Parties:	Douglas Nixon (Applicant) Waverley Council (Respondent)
Representation:	Counsel: A Hemmings (Applicant) J Ede (Solicitor) (Respondent)   Solicitors: Hones Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2019/80417
Publication restriction:	No

Judgment

1. 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).

2. 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).

3. 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.

4. The Applicant now seeks consent for the construction of a single car space within the front setback of the Subject Site, including:

1. partial demolition of the verandah and front façade of the semi-detached dwelling on the Subject Site;

2. construction of a new footing under the front bedroom of the dwelling;

3. removal of soft landscaping in the front setback;

4. alterations to the front fence to provide a sliding timber gate.

5. 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.