McArthur v Waverley Council [2009] NSWLEC 1296

McArthur v Waverley Council [2009] NSWLEC 1296

The applicant did not demonstrate that variation of the WDCP controls was reasonable and necessary. The proposed hardstand car space was too short, located forward of the front building line, required removal of landscaping and construction of a new crossing, would cause loss of a public street car space, and would adversely affect streetscape amenity and the existing character of the locality. A gate did not overcome those impacts. Having regard to the evidence, submissions and relevant matters in section 79C of the Environmental Planning and Assessment Act 1979, the development application was refused.

Jurisdiction
Australia
Judgment Date
16 September 2009
Procedural Posture
Appeal Against Refusal of Development Application for a Hardstand Carspace / Final Hearing and Determination Following Termination of Section 34 Conciliation Conference
Outcome
Appeal dismissed and development consent refused.
Legal Topics
['development Application' 'hardstand Carspace' 'streetscape and Visual Impact' 'vehicular Access and Parking' 'development Control Plan Compliance' 'residential Zoning']
['planning and Environment Law' 'development Consent'] ['development Application' 'hardstand Carspace' 'streetscape and Visual Impact' 'vehicular Access and Parking' 'development Control Plan Compliance' 'residential Zoning']

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Procedural Posture

Appeal Against Refusal of Development Application for a Hardstand Carspace / Final Hearing and Determination Following Termination of Section 34 Conciliation Conference

Legal Issues

  1. 1 ['Whether development consent should be granted for a hardstand car space forward of the front building line at 7 Cross Street, Bronte.' "Whether the proposed car space's dimensions, including its length with or without a gate, were acceptable under Waverley Development Control Plan 2006." 'Whether the proposal would adversely affect the streetscape, landscaping, pedestrian safety, public on-street parking and the amenity and existing character of the locality.' 'Whether variation or relaxation of the Waverley Development Control Plan 2006 controls was reasonable and necessary in the circumstances of the site.']

Ratio Decidendi

The applicant did not demonstrate that variation of the WDCP controls was reasonable and necessary. The proposed hardstand car space was too short, located forward of the front building line, required removal of landscaping and construction of a new crossing, would cause loss of a public street car space, and would adversely affect streetscape amenity and the existing character of the locality. A gate did not overcome those impacts. Having regard to the evidence, submissions and relevant matters in section 79C of the Environmental Planning and Assessment Act 1979, the development application was refused.

Court Disposition

Appeal dismissed and development consent refused.

Orders

  • ['The appeal 10438 of 2009 is dismissed.' 'Development application 738/2008 is determined by refusal of development consent.' 'The exhibits are returned.']