Shea v Waverley Council - [2010] NSWLEC 1133

Land and Environment Court

of New South Wales

CITATION: Shea v Waverley Council [2010] NSWLEC 1133

PARTIES:
APPLICANT
Michael Shea
RESPONDENT
Waverley Council

FILE NUMBER(S): 10182 of 2010

CORAM: Fakes C

KEY ISSUES: DEVELOPMENT APPLICATION :- Garage
Impact on streetscape

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167
Sailor v Waverley Council [2009] NSWLEC 1328
Lucas v Waverley Council {2009] NSWLEC 1390
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Segal & Anor v Waverley [2005] NSWCA 310
Goldin & Anor v Minister for Transport...[2002] NSWLEC 75

DATES OF HEARING: 01/06/2010

DATE OF JUDGMENT:
4 June 2010

LEGAL REPRESENTATIVES:
APPLICANT
Ms V Culkoff, barrister
INSTRUCTED BY
JPR Legal Pty Ltd
RESPONDENT
Mr S Patterson, solicitor
SOLICITORS
Wiltshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

4 June 2010

10182 of 2010 Shea v Waverley Council
JUDGMENT

: This is an appeal made under s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Waverley Council (the council) to grant consent to Development Application 286/2009 for the construction of a new garage with a terrace and roof above at 2 Andrew Street Bronte (the site).

The issues

2 The key contention between the parties relates to whether the proposed development is inconsistent with the streetscape and will therefore have a detrimental impact on the streetscape due to the dominance of the proposed ‘podium style’ garage structure. The council also contends that, should it be approved, it will set an undesirable precedent for future development in the street.

3 Specifically, the issues with respect to streetscape are that:

Waverley Local Environmental Plan

4 The council contends that the site has existing and adequate garaging that is consistent with the streetscape and transport controls for the area.

The site

5 The site is located at the southern end of the eastern side of Andrew Street Bronte. Andrew Street is a cul-de-sac. At the southern end of this street are a steeply sloping reserve and a set of stairs leading down to Hewlett Street and ultimately to the beach. 2 Andrew Street is a two-storey dwelling at the end of the cul-de-sac.

6 Andrew Street runs down the slope generally from north to south and both sides of the street are generally at a similar level; that is, there is no predominant high side or low side of the street.

7 The eastern side of Andrew Street is zoned Residential 2(a) and the western side is zoned Residential 2(b). The western side is characterised by residential flat buildings and the eastern side by detached dwelling houses.

8 The applicant currently has a single…

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: [2010] NSWLEC 1133
Decision Date: 4 June 2010

CaseChat Overview and Summary

The applicant, Michael Shea, sought to appeal the Waverley Council's refusal of his development application to construct a new garage with a terrace and roof above at 2 Andrew Street, Bronte. The council refused the application on the grounds that the proposed garage was not an acceptable development in the site’s Residential 2(a) zone, did not comply with streetscape and transport controls, and was not in the public interest. The applicant contended that the proposed development would not significantly detract from the amenity of the area, would not unreasonably offend the Waverley Development Control Plan 2006, and would not set an undesirable precedent for future development in Andrew Street. The council argued that the proposed development was inconsistent with the character of the street, would have an unreasonable impact on the streetscape, and was non-compliant with the planning controls. The court found that the proposed development would have an unacceptable impact on the streetscape and was contrary to the Desired Future Character Objectives and Performance Criteria for the Bronte Terraces. The court also found that the proposed development did not comply with the relevant provisions of the generic controls in the Waverley Development Control Plan 2006. The court dismissed the appeal and refused the development application. The court also found that the site had existing and adequate garaging that was consistent with the streetscape and transport controls for the area.

Orders