Shea v Waverley Council [2010] NSWLEC 1133

Shea v Waverley Council [2010] NSWLEC 1133

The proposed double garage would be a dominant feature set towards the front property line and would have an unacceptable impact on the streetscape. It was substantially non-compliant with key streetscape and transport controls in the Waverley Development Control Plan 2006, contrary to objective (b) of the Residential 2(a) zone under the Waverley Local Environmental Plan 1996, and there were no extraordinary or unique circumstances warranting a variation of the controls. Because the terrace and verandah roof extension relied on the non-compliant garage element, the development application was refused and the appeal dismissed.

Jurisdiction
Australia
Judgment Date
04 June 2010
Procedural Posture
Development Application Appeal Under S 97(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Consent / Judgment After Hearing
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Consent' 'garage Development' 'streetscape Impact' 'development Control Plan Compliance' 'local Environmental Plan Zone Objectives' 'precedent in Planning Decisions']
['planning and Environment Law'] ['development Consent' 'garage Development' 'streetscape Impact' 'development Control Plan Compliance' 'local Environmental Plan Zone Objectives' 'precedent in Planning Decisions']

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Procedural Posture

Development Application Appeal Under S 97(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of Consent / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed double garage with terrace and roof above was inconsistent with the streetscape and would have a detrimental streetscape impact due to the dominance of the proposed podium style garage structure.' 'Whether the proposal complied with objective (b) of the Residential 2(a) zone under the Waverley Local Environmental Plan 1996.' 'Whether the proposal complied with relevant streetscape and transport objectives and controls in the Waverley Development Control Plan 2006.' 'Whether approval would set an undesirable precedent for future development in Andrew Street.']

Ratio Decidendi

The proposed double garage would be a dominant feature set towards the front property line and would have an unacceptable impact on the streetscape. It was substantially non-compliant with key streetscape and transport controls in the Waverley Development Control Plan 2006, contrary to objective (b) of the Residential 2(a) zone under the Waverley Local Environmental Plan 1996, and there were no extraordinary or unique circumstances warranting a variation of the controls. Because the terrace and verandah roof extension relied on the non-compliant garage element, the development application was refused and the appeal dismissed.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'The development application (DA 286/2009) for the construction of a new garage with a terrace and roof above at 2 Andrew Street Bronte is refused.' 'The exhibits are returned.']