Segaert v Waverley Council - [2020] NSWLEC 1658

Land and Environment Court

New South Wales

Medium Neutral Citation: Segaert v Waverley Council [2020] NSWLEC 1658
Hearing dates: 19-20 November 2020
Date of orders: 18 December 2020
Decision date: 18 December 2020
Jurisdiction: Class 1
Before: Smithson AC
Decision:
The Court orders that:
(1) The Applicants are granted leave to amend its plans.
(2) The appeal is upheld.
(3) Development application DA-255/2019 for a new garage and associated works at 65 Blair Street, North Bondi is determined by the grant of consent, subject to the condition attached at Annexure A.
(4) The exhibits are returned except for Exhibits A, B, C, D, J and 1.

Catchwords:
DEVELOPMENT APPLICATION – New garage at front to replace existing garage at rear – semi-detached pair – controls preference rear garages – loss of verge street tree – proposal will increase onsite open space and landscaping – streetscape impacts – application of s 4.15(3A) of the EPA Act – precedent

Legislation Cited:
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Waverley Local Environmental Plan 2012

Cases Cited:
Goldin v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75
Nixon v Waverley Council [2019] NSWLEC 1653
Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Texts Cited:
Waverley Council Street Tree Masterplan 2008
Waverley Development Control Plan 2012 (Amendment No 6)
Waverley Tree Management Policy 2019

Category: Principal judgment
Parties: Michelle May Segaert (First Applicant)
Karl William Onslow (Second 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): 2020/65539
Publication restriction: No

Judgment

COMMISSIONER: The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by Michelle Segaert and Karl Onslow (the Applicants) and is against the refusal by Waverley Council (the Council) of development application DA-255/2019.
The application is for alterations to an existing development which is situated at 65 Blair Street, North Bondi (the site). The site has an area of 230m² and contains a semi-detached dwelling (semi) which is one of a pair: the other semi in the pair being 67 Blair Street. The pair are one of three adjoining pairs of semi-detached dwellings collectively comprising six dwellings, being 59-69 Blair Street (the semi-detached group). This group is distinguishable from the balance of development in this southern section of Blair Street in that they have dual frontage, with rear access available from Hastings Parade.
The proposed alterations, comprising the proposed development, involve removing an existing garage accessed from Hastings Parade, and replacing it with landscaped private open space for use by the Applicants at the rear, and converting the sub-floor area at the front of the existing semi for use as a garage to be accessed from Blair Street. Additional landscaping is also proposed at the front and rear of the site, including in the…

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: [2020] NSWLEC 1658
Decision Date: 18 December 2020

CaseChat Overview and Summary

The applicants, Segaert, sought leave to amend their plans and appealed the decision of Waverley Council to refuse their development application. The application concerned a new garage and associated works at a property in North Bondi. The case was heard by the Land and Environment Court of New South Wales. The legal issues before the court included whether the applicants were entitled to leave to amend their plans, whether the refusal of the development application was legally valid, and if the appeal should be upheld.

The court found that the applicants were entitled to leave to amend their plans as the proposed amendments were not materially different from the original application. The court also found that the refusal of the development application was not legally valid as the council had not properly considered the environmental impact of the proposed works. The court found that the appeal should be upheld and granted the development application, subject to certain conditions. The court ordered that the applicants be granted leave to amend their plans, that the appeal be upheld, and that the development application be determined by the grant of consent, subject to the conditions attached at Annexure A. The exhibits were to be returned, except for certain documents which were to be retained by the court.

Orders

Orders of the court

The Court orders that:

(1) The Applicants are granted leave to amend its plans.

(2) The appeal is upheld.

(3) Development application DA-255/2019 for a new garage and associated works at 65 Blair Street, North Bondi is determined by the grant of consent, subject to the condition attached at Annexure A.

(4) The exhibits are returned except for Exhibits A, B, C, D, J and 1.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Segaert v Waverley Council [2020] NSWLEC 1658
Hearing dates:	19-20 November 2020
Date of orders:	18 December 2020
Decision date:	18 December 2020
Jurisdiction:	Class 1
Before:	Smithson AC
Decision:	The Court orders that: (1) The Applicants are granted leave to amend its plans. (2) The appeal is upheld. (3) Development application DA-255/2019 for a new garage and associated works at 65 Blair Street, North Bondi is determined by the grant of consent, subject to the condition attached at Annexure A. (4) The exhibits are returned except for Exhibits A, B, C, D, J and 1.
Catchwords:	DEVELOPMENT APPLICATION – New garage at front to replace existing garage at rear – semi-detached pair – controls preference rear garages – loss of verge street tree – proposal will increase onsite open space and landscaping – streetscape impacts – application of s 4.15(3A) of the EPA Act – precedent
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 2012
Cases Cited:	Goldin v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 Nixon v Waverley Council [2019] NSWLEC 1653 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191
Texts Cited:	Waverley Council Street Tree Masterplan 2008 Waverley Development Control Plan 2012 (Amendment No 6) Waverley Tree Management Policy 2019
Category:	Principal judgment
Parties:	Michelle May Segaert (First Applicant) Karl William Onslow (Second 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):	2020/65539
Publication restriction:	No