Ryan v Waverley Council - [2004] NSWLEC 382

Land and Environment Court

of New South Wales

CITATION: Ryan v Waverley Council [2004] NSWLEC 382 revised - 24/08/2004

PARTIES:
APPLICANT
Alan Ryan
RESPONDENT
Waverley Council

FILE NUMBER(S): 11476 of 2003

CORAM: Murrell C

KEY ISSUES: Development Application :- Garage - impact on streetscape and adjoining properties

LEGISLATION CITED:

CASES CITED: Environmental Planning and Assessment Act;
Waverley Local Environmental Plan

DATES OF HEARING: 25/05/2004

EX TEMPORE
JUDGMENT DATE : 06/11/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr W Chaffey, solicitor
SOLICITORS
Wordsworth Lawyers
RESPONDENT
Mr M Staunton, solicitor
SOLICITORS
Staunton Beattie
RESRONDENT
Mr M Staunton
SOLICITORS
Staunton Beatty

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

11 June 2004

11476 of 2003 Alan Ryan v Waverley Council

JUDGMENT

1 This is a verbal judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against Waverley Council’s refusal of a development application for a garage facility at the premises known as 25 Edward Street, Bondi.

2 The subject site currently has erected on the land a semi-detached dwelling, and this is one of a pair with No. 23 Edward Street, Bondi.

3 The area can be described as eclectic in the streetscape there is a variety of housing forms including a number of semi-detached dwellings but also residential flat buildings and single detached dwelling houses.

4 It is noted that the subject property is within a conservation area covered by council’s Local Environmental Plan and there is a Development Control Plan also that pertains to the subject site.

5 These proceedings commenced on site and the Court had the opportunity of doing an extensive walk of the street to understand the streetscape. Whilst there is a great variety of housing forms it is also an attractive streetscape which is brought together by the street trees that predominant in the streetscape and add to the amenity.

6 The Court heard from objectors on site from two adjoining properties. The objectors from No. 23, the other semi in this pair, Mr and Mrs Strickland, objected to the proposed development on the basis that it would reduce the heritage significance of the pair of cottages. The other objectors, Mr Valder and Ms Lowndes also objected to the proposed developmentand they reside in the dwelling at No 27 that is separated from the property by a 3 m walkway and they objected to the proposal on the basis of streetscape, the noise from a garage door opening and closing and they were concerned about the general amenity afforded to their property. Their property has a high wall erected at the front and the Court had the opportunity of also going into the property.

7 From the site inspection I was satisfied that the proposed development would not impact on the amenity of the residents at No. 27 in terms of the garage door and the opening and closing of that door. It is clear that their property is shielded in some respects from noise impacts by the high wall which…

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: [2004] NSWLEC 382
Decision Date: 06/11/2004

CaseChat Overview and Summary

In the case of Ryan v Waverley Council, Alan Ryan sought to appeal Waverley Council's refusal of a development application for a garage facility at 25 Edward Street, Bondi. The primary issue before the court was whether the proposed garage development would be compatible with the streetscape and conservation area, and whether it would negatively impact the adjoining properties. The council had objected to the development on the grounds that it would reduce the heritage significance of the pair of semi-detached cottages and would be inconsistent with the streetscape.

The court considered the streetscape, the various housing forms in the area, and the impact on the adjoining properties. After a site inspection, the court was satisfied that the proposed development would not negatively impact the amenity of the residents at No. 27 in terms of the garage door and noise. The court also considered the development control plans and the council's objections. Ultimately, the court found that the proposed development, as outlined in the amended plans, would be appropriate and not incompatible with the streetscape.

In light of the council's concerns, the court imposed specific conditions for the garage and garage door, as well as the front fence, to ensure consistency with the property at No. 23 Edward Street. A deferred commencement was also required, with amended plans to be submitted to the council for approval. The court approved the development application subject to these conditions.

The final orders of the court were that the appeal in respect of the property at 25 Edward Street, Bondi, was upheld in part. The development application, as amended, was approved subject to a deferred commencement and the conditions outlined in the judgment. The exhibits, except for the amended plans and draft conditions, were returned to the parties.

Orders