Goldberg v Waverley Council [2010] NSWLEC 1044

Goldberg v Waverley Council [2010] NSWLEC 1044

The Court has jurisdiction to exercise functions under s138 of the Roads Act with respect to the proposed development. However, the risk to pedestrian and vehicular safety posed by the design of the proposed accessway is significant and unacceptable, and the proposed dwelling does not satisfy key planning controls relating to bulk, height, and excavation. Accordingly, both the application for roadworks consent and for development of the dwelling are refused.

Jurisdiction
Australia
Judgment Date
15 March 2010
Procedural Posture
Appeal / Judgment – Merits Appeal From Refusal of Development Application
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Applications' 'permissibility' 'road Works Approval' 'environmental Impact Assessment' 'open Space Zoning' 'building Controls' 'safety Considerations' 'heritage Conservation']
['planning and Environment Law' 'administrative Law' 'local Government Law'] ['development Applications' 'permissibility' 'road Works Approval' 'environmental Impact Assessment' 'open Space Zoning' 'building Controls' 'safety Considerations' 'heritage Conservation']

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Procedural Posture

Appeal / Judgment – Merits Appeal From Refusal of Development Application

Legal Issues

  1. 1 ['Whether the Court has the function to grant approval under s138 of the Roads Act 1993 for works to provide vehicle access' 'Whether the proposed vehicle accessway constitutes permissible roadworks or a prohibited private driveway under the Waverley LEP zoning' 'Whether the proposed works meet safety requirements for pedestrians and vehicles and the proper exercise of the Roads Act discretion' 'Whether the proposed dwelling satisfies planning controls on height, bulk, excavation, and amenity impacts']

Ratio Decidendi

The Court has jurisdiction to exercise functions under s138 of the Roads Act with respect to the proposed development. However, the risk to pedestrian and vehicular safety posed by the design of the proposed accessway is significant and unacceptable, and the proposed dwelling does not satisfy key planning controls relating to bulk, height, and excavation. Accordingly, both the application for roadworks consent and for development of the dwelling are refused.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development Application DA148/09 for the erection of a dwelling house on Lot 1 of an approved subdivision at 362 Birrell Street Tamarama, is refused.' 'The exhibits, with the exception of exhibit A, are returned.']