Sailer v Waverley Council - [2009] NSWLEC 1328

Land and Environment Court

of New South Wales

CITATION: Sailer -v- Waverley Council [2009] NSWLEC 1328

PARTIES:
Peter Sailer
First Applicant
Ann Sailer
Second Applicant
Waverley Council
Respondent

FILE NUMBER(S): 10436 of 2009

CORAM: Dixon C

KEY ISSUES: :- Heritage item, garage in wall

LEGISLATION CITED: Land and Environment Court Act 1979
Waverly Local Environmental Plan 1996
Waverley Development Control Plan 2006 (WDCP)

CASES CITED: Gibson V Mosman Municipal Council [2001] NSWLEC 134
Segal & Anor v Waverley Council [2004] NSWLEC 363
Zhang v Canterbury City Council [2001] NSWCA 167
Gibson V Mosman Municipal Council [2001] NSWLEC134

DATES OF HEARING: 2/9/2009

DATE OF JUDGMENT:
6 October 2009

LEGAL REPRESENTATIVES:
Michael McMahon
M E McMahon & Assoc
Stephen Patterson
WIlshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10436 of 2009 Sailer v Waverley

1 The applicant has approval to build a five level dwelling house with a swimming pool at 455B Bronte Road, Bronte. However, the approval includes a condition that deletes the garage level of the development and therefore no off street parking is now provided.

2 The applicant now appeals the imposition of condition 2(a) of DA/291/08 which reads:

“To minimise the impact upon the heritage listed sandstone wall at the front of the property, and to remove a component of the development which is contrary to various DCP controls, the proposed garage level is to be deleted from the plans in its entirety. This includes the proposed lift access to this level, the bin storage area and hallway, the turning circle and any works to the front of the site relating to the provision of a garage entry point or works to the council ‘s footpath.”

3 The principle issue for determination, in this section 97 appeal, is whether it is acceptable to puncture the heritage listed sandstone wall to allow for garage access to the development from Bronte Road if there is alternative rear access to the site.

4 Following a consideration of the evidence and submissions and the relevant matters in section 79C, and the peculiar constraints of this site, I have decided the appeal should be upheld.

5 I set out the reasons for my decision below.

The site

6 The site is located on the western side of Bronte Road near the corner of Nelson Ave. It is triangular in shape with a frontage of 18.11 m to Bronte Road and a narrow rear access off Gardyne Street with a width of about 2.6m. The southern boundary adjoining 457 Bronte Rd has a length of 39.44m and the northern boundary adjoining 455a Bronte Rd has a length o 35.7m. The site has a total area of 323.5m.

7 A three level dwelling house with a single garage located at the rear of the site…

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 1328
Decision Date: 6 October 2009

CaseChat Overview and Summary

In Sailer v Waverley Council, the applicants sought approval for a five-level dwelling house with a swimming pool at 455B Bronte Road, Bronte. The approved development included a condition that deleted the garage level of the development and therefore no off-street parking was provided. The applicants appealed the imposition of condition 2(a) of DA/291/08 which required the deletion of the proposed garage level to minimise the impact on the heritage listed sandstone wall at the front of the property. The primary issue for determination was whether it was acceptable to puncture the heritage listed sandstone wall to allow for garage access to the development from Bronte Road if there was alternative rear access to the site. The court held that the appeal should be upheld and that the proposed garage level was a sympathetic design solution to the provision of garage access, which would not be creating a detrimental streetscape impact. The court found that the proposed garage level provided the dwelling with desirable, equitable and reasonable amenity and allowed for the removal of the existing garage at the rear which allowed for the opportunity to obtain views to the Pacific Ocean from Gardyne Street to the rear. The court also found that the excavation, while non-compliant, did not affect the bulk or scale of the building and if constructed appropriately would not impact on the structural integrity of the adjoining dwellings. The court concluded that the proposed garage level provided off-street parking for the site, which was a sensitive design with minimum interference with the wall and achieved the objective of ensuring that development did not adversely affect the heritage significance of the heritage item. The court made orders upholding the appeal, deleting condition 2(a) of Development Application 291 of 2008 from the Development Consent and requiring the council to forward draft conditions reflecting the court's judgement by Friday 16 October 2009.

Orders