Finney and anor v Waverley Council [2015] NSWLEC 1527

Finney and anor v Waverley Council [2015] NSWLEC 1527

The application was refused because it did not demonstrate reasonable compliance with the WDCP controls. The Court found that the relevant immediate vicinity was the lower level section of O'Donnell Street between Wairoa Ave and the steps near No 42, where only one in eight properties had parking forward of the building line, so that this form of parking was not predominant. The proposed standing vehicle in the front setback would likely dominate the front of the site and adversely affect the streetscape. The loss of one on-street parking space from the proposed vehicular crossing was also a negative public interest outcome in circumstances of strong competition for on-street spaces.

Jurisdiction
Australia
Judgment Date
16 December 2015
Procedural Posture
Class 1 Development Application Appeal / Appeal Against Council's Refusal of a Development Application; Section 34 AA Conciliation Conference Terminated Without Agreement and Matter Proceeded to Determination
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application Refusal' 'off Street Parking in Front Setback' 'streetscape Impact' 'on Street Parking Loss' 'waverley Development Control Plan Controls' 'precedent in Planning Assessment']
['planning and Environment Law' 'development Control'] ['development Application Refusal' 'off Street Parking in Front Setback' 'streetscape Impact' 'on Street Parking Loss' 'waverley Development Control Plan Controls' 'precedent in Planning Assessment']

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Procedural Posture

Class 1 Development Application Appeal / Appeal Against Council's Refusal of a Development Application; Section 34 AA Conciliation Conference Terminated Without Agreement and Matter Proceeded to Determination

Legal Issues

  1. 1 ['Whether the proposed hardstand car space within the front setback should be permitted under the Waverley Development Control Plan 2012 - Amendment No. 2.' 'Whether parking forward of the building line was predominant in the immediate vicinity of the site.' 'Whether the proposed alterations and hardstand space would adversely affect the streetscape or dominate the front of the site.' 'Whether the proposal would cause an unacceptable loss of on-street parking.' "Whether approval of parking strips at 32 O'Donnell Street created a relevant precedent for the application."]

Ratio Decidendi

The application was refused because it did not demonstrate reasonable compliance with the WDCP controls. The Court found that the relevant immediate vicinity was the lower level section of O'Donnell Street between Wairoa Ave and the steps near No 42, where only one in eight properties had parking forward of the building line, so that this form of parking was not predominant. The proposed standing vehicle in the front setback would likely dominate the front of the site and adversely affect the streetscape. The loss of one on-street parking space from the proposed vehicular crossing was also a negative public interest outcome in circumstances of strong competition for on-street spaces.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' "Development Application DA – 490/2014 for alterations to the front façade for a new hardstand space, landscaping, front fence and garden at 54 O'Donnell Street, North Bondi is refused." 'The exhibits may be returned except 1, 4 and A.']