Teasdale v Waverley Council - [2010] NSWLEC 1049

Land and Environment Court

of New South Wales

CITATION: Teasdale and Anor v Waverley Council [2010] NSWLEC 1049

PARTIES:
APPLICANT
Paul Anthony Teasdale and Lucinda Perrin
RESPONDENT
Waverley Council

FILE NUMBER(S): 10952 of 2009

CORAM: Murrell C

KEY ISSUES: DEVELOPMENT APPLICATION :- Alterations and Additions to dwelling with hard stand area. Impact on adjoining heritage, streetscape and conservation area.

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

DATES OF HEARING: 17 February 2010

DATE OF JUDGMENT:
17 March 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr M McMahon (solicitor)
SOLICITOR
Michael McMahon and Associates
RESPONDENT
Mr S Patterson (solicitor)
SOLICITOR
Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

17 March 2010

10952 of 2009 Paul Anthony Teasdale & Lucinda Perrin v Waverley Council
JUDGMENT

1 The applicant in these proceedings is seeking to provide a hardstand area within the front setback of the dwelling at No. 37 Blenheim St, Queens Park. This matter commenced as a section 34 conciliation conference however, the parties could not reach agreement and they consented to me adjudicating the appeal under section 34 (4) of the Land and Environment Court Act, 1979.

2 The council approved alterations and additions to the dwelling and attached a condition to delete the proposed car space in the front setback area. The applicant is appealing this condition and the Council does not raise any issue with the alterations to the dwelling.

Site and environs

3 The subject site at No. 37 has a part one and two-storey dwelling of rendered sandstone and weatherboard cottage erected on the site. The original sandstone portion of the dwelling was erected over 100 years ago with Council recently approving alterations and additions including a first-floor at the rear. Number 39 and 37 are forward of the cottage at No. 37.

4 Adjoining the subject property at No. 35 is a single storey weatherboard cottage and this is a listed heritage item. The subject site is not a heritage item but is within the conservation area.

5 To the south of the subject site at No. 39 is a two storey residential flat building that has a car parking hard stand area on its southern side, forward of the building.

6 The subject dwelling is setback further from the front boundary than the heritage item to the north and the flat building to the south. There is not sufficient setback to the heritage item to accommodate a car space. On site today one could see other dwellings where a car space is within the front setback, although approval pre-dated the current controls.

7 The Blenheim Street conservation area is characterised by a variety of early 19th-century cottages and more recent multi-unit development. The historic remnants of the streetscape include the subject site a rare early Victorian sandstone cottage. Opposite the subject site for an extensive width is an attached townhouse form of development with basement parking accessed at…

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 1049
Decision Date: 17 March 2010

CaseChat Overview and Summary

The applicants, Paul Anthony Teasdale and Lucinda Perrin, appealed against a decision of the Waverley Council, arguing against a condition imposed by the council that required the removal of a proposed car space within the front setback area of their property located at 37 Blenheim Street, Queens Park. The council had approved alterations and additions to the dwelling but attached a condition to delete the proposed car space in the front setback area. The applicants argued that the proposed car space would not have an adverse impact on the adjoining heritage property or the streetscape. The council contended that the proposal would not maintain and improve the amenity of the locality and would be inconsistent with development in the vicinity of heritage items. The applicants provided amended plans which incorporated a number of modifications to the proposal, including the use of a permeable/pervious material for the base of the parking space and the retention of a stone base on the southern side of the existing gate and erecting a picket fence above this that will be more in keeping with the dwelling and the existing gate and the proposed picket gates to access the car space. The Court was satisfied that the proposed car parking space would not present as precedent in the context of this conservation area and the streetscape. The Court approved the development application subject to certain conditions, including a cash contribution to Waverley Council, a security deposit, a long service levy, and various conditions relating to erosion, sediment and pollution control, stormwater management, engineering details, and compliance with the Building Code of Australia.

Orders