Vasiliou v Woollahra Municipal Council [2013] NSWLEC 1050

Vasiliou v Woollahra Municipal Council [2013] NSWLEC 1050

The amended proposal provided a rear courtyard directly accessible from the family room and a side court which together supplied usable and accessible private open space satisfying objective 04 of cl 4.1.7 of the DCP. Although the shortened car space would not accommodate an 85th percentile vehicle without overhanging the courtyard, it was sufficient for a small car, and a condition restricting use of the car space to small cars would make the onsite parking acceptable under the objectives of cl 4.2.6. Condition C1(f) could therefore be deleted and replaced with agreed conditions requiring the wider rear courtyard and a restriction on title for use of the car space.

Jurisdiction
Australia
Judgment Date
26 March 2013
Procedural Posture
Class 1 Appeal Under S97 AA of the Environmental Planning and Assessment Act 1979 Against Refusal of an Application Under S 96(2) to Modify Development Consent / Hearing After a S 34 AA Conciliation Conference Was Terminated; Principal Judgment
Outcome
The appeal is upheld and the s96(2) modification application is approved subject to conditions in Annexure A.
Legal Topics
['modification of Development Consent' 'onsite Parking' 'private Open Space' 'development Control Plan Compliance' 'paddington Heritage Conservation Area']
['planning and Environment Law' 'development Consent Modification'] ['modification of Development Consent' 'onsite Parking' 'private Open Space' 'development Control Plan Compliance' 'paddington Heritage Conservation Area']

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Procedural Posture

Class 1 Appeal Under S97 AA of the Environmental Planning and Assessment Act 1979 Against Refusal of an Application Under S 96(2) to Modify Development Consent / Hearing After a S 34 AA Conciliation Conference Was Terminated; Principal Judgment

Legal Issues

  1. 1 ['Whether condition C1(f) requiring deletion of the proposed onsite parking space and associated works should be deleted from the development consent.' 'Whether the modified proposal would provide adequate usable and accessible private open space at the rear of the property.' 'Whether the amended car space was acceptable despite not meeting the 5.4 m minimum length control for an uncovered car space.']

Ratio Decidendi

The amended proposal provided a rear courtyard directly accessible from the family room and a side court which together supplied usable and accessible private open space satisfying objective 04 of cl 4.1.7 of the DCP. Although the shortened car space would not accommodate an 85th percentile vehicle without overhanging the courtyard, it was sufficient for a small car, and a condition restricting use of the car space to small cars would make the onsite parking acceptable under the objectives of cl 4.2.6. Condition C1(f) could therefore be deleted and replaced with agreed conditions requiring the wider rear courtyard and a restriction on title for use of the car space.

Court Disposition

The appeal is upheld and the s96(2) modification application is approved subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld' 'The application under s96(2) of the Environmental Planning and Assessment Act to modify development consent (DA259/10) for alterations and additions to an existing terrace at 34 Gosbell Street, Paddington is approved subject to the conditions in Annexure A.' 'The exhibits may be returned']