Goldberg v Waverley Council [2008] NSWLEC 49

Goldberg v Waverley Council [2008] NSWLEC 49

Consent was granted for demolition and subdivision, as the applicant satisfied planning principles and environmental impacts were negligible, but consent for construction of the driveway was refused due to unresolved and significant public safety issues for pedestrians and vehicles despite the legal permissibility of road use under the LEP.

Parties
Applicant: Paul Anton Goldberg; Respondent: Waverley Council
Jurisdiction
Australia
Judgment Date
03 March 2008
Procedural Posture
Development Application Appeal / Judgment
Outcome
appeal allowed in part; development consent for demolition and subdivision granted; consent for driveway refused
Legal Topics
Development Application, Subdivision, Road Construction, Environmental Impact, Public Safety
Planning and Environmental Law Development Application Subdivision Road Construction Environmental Impact Public Safety

Case Brief

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Parties

Paul Anton Goldberg

Applicant

Waverley Council

Respondent

Procedural Posture

Development Application Appeal / Judgment

Legal Issues

  1. 1 Whether construction of a driveway on a public road for private access is permissible under the relevant planning controls
  2. 2 Whether subdivision of the land is acceptable under planning principles given geotechnical and visual impacts
  3. 3 Whether the proposed driveway design raises unresolved public safety concerns warranting refusal

Ratio Decidendi

Consent was granted for demolition and subdivision, as the applicant satisfied planning principles and environmental impacts were negligible, but consent for construction of the driveway was refused due to unresolved and significant public safety issues for pedestrians and vehicles despite the legal permissibility of road use under the LEP.

Court Disposition

appeal allowed in part; development consent for demolition and subdivision granted; consent for driveway refused

Orders

  • The appeal is allowed in part.
  • Development consent is granted to the demolition of the existing dwelling house at No. 362 Birrell Street, Tamarama, being lot A in deposited plan 37266 and for subdivision of that property in accordance with plan of subdivision prepared by Rygate and Company dated 2 September 2005, subject to conditions.