Westwood v Waverly Council - [2004] NSWLEC 574

Land and Environment Court

of New South Wales

CITATION: Westwood v Waverly Council [2004] NSWLEC 574 revised - 10/11/2004

PARTIES:
APPLICANT
Katherine Westwood
RESPONDENT
Waverley Council
.

FILE NUMBER(S): 10782 of 2004

CORAM: Moore C

KEY ISSUES: Development Application :-

LEGISLATION CITED:

CASES CITED: Zhang v Canterbury City Council (2001) 115 LGERA 373;
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472;
.

DATES OF HEARING: 22 September 2004

EX TEMPORE
JUDGMENT DATE : 09/22/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Green, solicitor
Pike Pike & Fenwick
RESPONDENT
Mr M Staunton, solicitor
Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

22 September 2004

04/10782 Katherine Westwood v Waverley Council
JUDGMENT

This decision was given as an extemporaneous decision during an on-site hearing. It has been revised and edited prior to publication.

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal on 9 June 2004 by Waverley Council (the council) of Development Application 750/2003 for the demolition of an existing semi-detached dwelling and the construction of a new house at 22 Wiley Street, Waverley (the site).

2 During the course of the on-site hearing, in company with the parties’ representatives, I had the opportunity to visit the premises of the objecting residents at the rear of the site whose properties are located in Henrietta Street and to walk the length of Wiley Street to observe its streetscape.

3 There is no uniform style of the existing dwellings located in Wiley Street. They range from a number of modern redevelopments through pairs of single storey semi-detached houses, a number of freestanding single storey houses to a number of older two storey houses including Victorian terrace style dwellings.

4 Mr Layman gave town planning evidence on behalf of the council. His description of the general streetscape in Wiley Street, from my assessment after having walked the street, is generally an accurate one although I consider he overemphasises the aspect of base-middle-top façade division given that there are significant single storey elements in the street.

5 Council refused the application on a number of grounds and in a Statement of Issues in the proceedings nominated in excess of 20 matters as being of concern.

6 It seems to me that:

following my examination of the site and of a model of an earlier proposed version of the development; and

after inspecting the site from the houses of a number of those who object to be application,

7 The first relates to the bulk and scale of the proposal and thus its fit into the streetscape and impact when viewed from dwellings to the east.

8 The second is whether the impact on the amenity of neighbours is acceptable or could, with minor modification, be made acceptable.

9 Limited assistance in this assessment is provided by the Waverley Local Environmental Plan (the LEP). The council’s Development…

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: [2004] NSWLEC 574
Decision Date: 09/22/2004

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was asked to review a decision made by the Waverley Council regarding a development application for a new house at 22 Wiley Street, Waverley. The applicant, Katherine Westwood, sought to demolish an existing semi-detached dwelling and construct a new house on the site. The Waverley Council refused the development application on various grounds, leading to this appeal. The key issues before the court were whether the proposal complied with the requirements of the Waverley Local Environmental Plan and the Development Control Plan for Dwelling-House Development, particularly regarding bulk, scale, privacy, and streetscape compatibility.

The court found that while the proposal had some design merits and was energy efficient, it did not comply with the Development Control Plan’s objectives for streetscape and visual impact. The court was particularly concerned that the proposed design significantly departed from the typical characteristics of the existing semi-detached dwellings in Wiley Street, creating a stark contrast that was not harmonious with the streetscape. Despite expert opinions supporting the design's quality and innovation, the court concluded that the radical departure from the existing architectural style was not acceptable under the plan's objectives. The potential overlooking of private open spaces by the proposed building was also a concern, though it was deemed less critical given the existing density of the area.

In light of these findings, the court dismissed the appeal and upheld the council's refusal of the development application. The orders included the dismissal of the appeal, the refusal of development consent for the proposed new house, and the return of the exhibits.

Orders