Spence v Waverley Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Spence v Waverley Council [2021] NSWLEC 1214

Hearing dates:

30-31 March 2021

Date of orders:

30 April 2021

Decision date:

30 April 2021

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court Orders:

1. The appeal is dismissed.

2. Development Application No. DA-167/2020 for the partial demolition of the side fence and the construction of a hardstand car space, driveway and sliding timber gate to the rear of 75 Newland Street Bondi Junction is refused.

3. The exhibits are returned with the exception of Exhibits 4, 6, A and H.

Catchwords:

APPEAL – development application – driveway and car parking space – unacceptable impact on streetscape – heritage – appeal dismissed

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 4.15

Land and Environment Court Act 1979 s 34AA

Waverley Local Environmental Plan 2012 cll 2.3, 5.10

Width of Public Streets and Lanes Act 1881

Cases Cited:

Donnellan v Armidale Regional Council [2018] NSWLEC 1372

Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75

Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167

Texts Cited:

Australian/New Zealand Standard AS/NZS 2890.1:2004 Off Street Car parking

Waverley Council, - Waverley’s People, Movement and Places: Where We Go and How We Get There: Final Summary (2017)

Waverley Development Control Plan 2012 (Amendment No.8)

Category:

Principal judgment

Parties:

Edwina Spence (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
P Holland (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
McCullough Robertson (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2020/332627

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a proposal to provide an off-street car parking space to a dwelling house on the corner of Newland Street and Keiran Street, Bondi Junction.

2. The development application (DA-167/2020) seeks approval for the following development:

1. The partial demolition of the side fence along Keiran Street;

2. The construction of a sliding timber gate;

3. The construction of a hard stand car parking space measuring 5.4 m by 2.4 m at the rear of the site with access from Keiran Street; and

4. The construction of a new driveway and crossover through the grass verge to Keiran Street, including excavation into the verge to assist in levelling out the driveway and crossover.

3. The appeal was subject to mandatory conciliation on 30 March 2021, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached in the conciliation, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the appeal proceeded to a hearing.

4. The principal contested issues relate to the impact the proposed development will have on the streetscape of Keiran Street and on the Conservation Area. For the reasons given below, I have concluded that those impacts are unacceptable and consequently that the development application should be refused.

The Site and it’s locality

5. A site view was conducted at the commencement of…