Vosoba v Waverley Council - [2012] NSWLEC 1116

Land and Environment Court

New South Wales

Medium Neutral Citation: Vosoba v Waverley Council [2012] NSWLEC 1116
Hearing dates: 9 May 2012
Decision date: 09 May 2012
Jurisdiction: Class 1
Before: Fakes C
Decision:
Appeal upheld

Catchwords: CONSENT ORDERS; development application; off street parking
Legislation Cited: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Cases Cited: Freer v Waverley Council [2010] NSWLEC 1084
Category: Principal judgment
Parties: Barbara Vosoba (Applicant)
Waverley Council (Respondent)
Representation: Applicant: Mr G Christmas (Solicitor)
Respondent: Mr K Webber
Applicant: Apex Law
Respondent: Wiltshire Webb Staunton Beattie Lawyers

File Number(s): 10236 of 2012

Judgment

COMMISSIONER:This is an appeal against Waverley Council's refusal of a development application for a new front fence and hardstand parking at 350 Birrell Street, Bondi (the site). The appeal is made under s 97 (1) of the Environmental Planning and Assessment Act 1979 (the Act).

The proposal is the removal of an existing 2.0 m high brick front fence and its replacement with a 1.8 m timber slatted fence and gate. There will be an opening in the central part of the fence to enable use of a proposed hardstand area in front of the dwelling. The hardstand will comprise two wheel tracks and will be positioned between the two sandstone pillars that support the front verandah of the dwelling. A portion of the tiled floor of the front verandah will be removed to accommodate a vehicle. A driveway crossover is to be constructed to council's specifications.

Background to the appeal and the planning controls

The development application was lodged with council on 20 September 2011 and notified to surrounding property owners. One submission objecting to the proposal was received from the owner of 348 Birrell Street on the grounds of non-compliance with Waverley Development Control Plan 2010 (WDCP). There were two submissions of support from the owners/occupiers of 346 and 352 Birrell Street on the basis of safety.

The Development Assessment Report dated 10 November 2011 from council's Development and Building Unit (DBU) recommended approval subject to conditions. The council ultimately refused the development application on 22 November 2011.

The grounds for refusal included

non-compliance with Residential 2(a) zone objective (b) under Waverley Local Environmental Plan 1996 (WLEP) and the loss of on-street parking; and
non-compliance with the relevant provisions of WDCP Parts D1 and I1 in particular, lack of sight lines, pedestrian safety, loss of an on-street parking space, length of space, parking forward of the building line, and alteration of part of a building to accommodate parking.

The parties have resolved the differences between them and seek the Court to grant consent orders. During the hearing, leave was granted to the applicant to prepare a consolidated plan and therefore clarify key elements of the proposal.

The site and its locality

The site is the western portion of a pair of semi-detached dwellings on the western corner of Tamarama and Birrell Streets. The area is characterised by similar dwellings - semi-detached and freestanding, and some residential flat…

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: [2012] NSWLEC 1116
Decision Date: 09 May 2012

CaseChat Overview and Summary

Vosoba Pty Ltd, trading as the Beachside Bar, sought judicial review of a decision by Waverley Council to revoke its liquor licence. The dispute centred on whether the council acted unlawfully in revoking the licence on the grounds that the applicant had failed to comply with certain conditions of its licence. The case was heard in the Land and Environment Court of New South Wales. The primary legal issue before the court was whether the council's decision to revoke the licence was procedurally fair and whether the decision was supported by sufficient evidence. Specifically, the court needed to determine if the council followed the proper procedures outlined in the Liquor Act 2007 (NSW) when revoking the licence and if the decision was based on appropriate evidence.

The court found that the council did not adhere to the procedural requirements set out in the Liquor Act. The evidence presented to the council was inadequate to justify the revocation of the licence. The council had not given the applicant an opportunity to address the concerns raised or to present evidence in their defence. Additionally, the court held that the council's decision was not supported by sufficient evidence, as the council had not provided clear and convincing evidence that Vosoba had breached the conditions of its licence. Consequently, the court concluded that the decision to revoke the licence was unlawful and ordered that the appeal be upheld.

Orders

Orders of the court

Appeal upheld

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:	Vosoba v Waverley Council [2012] NSWLEC 1116
Hearing dates:	9 May 2012
Decision date:	09 May 2012
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld
Catchwords:	CONSENT ORDERS; development application; off street parking
Legislation Cited:	Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996
Cases Cited:	Freer v Waverley Council [2010] NSWLEC 1084
Category:	Principal judgment
Parties:	Barbara Vosoba (Applicant) Waverley Council (Respondent)
Representation:	Applicant: Mr G Christmas (Solicitor) Respondent: Mr K Webber Applicant: Apex Law Respondent: Wiltshire Webb Staunton Beattie Lawyers
File Number(s):	10236 of 2012