Hazan v Waverley Council [2009] NSWLEC 1262

Hazan v Waverley Council [2009] NSWLEC 1262

The appeal was upheld because, considering the s 79C matters, the site constraints, the existing Jensen Avenue streetscape containing many hardstand car spaces forward of the building line, and the amended design with permeable wheel strips and 65% landscaping, the proposal was permissible and acceptable on its merits despite non-compliance with WDCP controls about location forward of the building line and car space length. The Court preferred the applicant's evidence that the development would not adversely affect streetscape, pedestrian safety, visual relationship with the street, or on-street parking, and that any precedent concern was distinguishable on the facts.

Jurisdiction
Australia
Judgment Date
08 July 2009
Procedural Posture
Development Application Appeal Against Refusal / Section 34 Conciliation Conference With No Agreement; Hearing Pursuant to S 34(4)(b) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development application granted consent subject to conditions.
Legal Topics
['development Application' 'off Street Parking' 'hardstand Parking Space' 'front Setback' 'streetscape' 'pedestrian Safety' 'loss of on Street Parking' 'landscaping and Tree Removal' 'development Control Plan Non Compliance']
['environmental Planning and Development Control' 'land and Environment'] ['development Application' 'off Street Parking' 'hardstand Parking Space' 'front Setback' 'streetscape' 'pedestrian Safety' 'loss of on Street Parking' 'landscaping and Tree Removal' 'development Control Plan Non Compliance']

Case Brief

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Procedural Posture

Development Application Appeal Against Refusal / Section 34 Conciliation Conference With No Agreement; Hearing Pursuant to S 34(4)(b) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the proposed hardstand parking space within the front setback was contrary to the Residential 2(a) zone objectives under Waverley Local Environmental Plan 1996.' 'Whether the proposal would unreasonably detract from the appearance and quality of the streetscape under Waverley Development Control Plan 2006.' 'Whether the proposed vehicle crossing and hardstand car space would reduce pedestrian safety.' 'Whether the proposal would result in unacceptable loss of on-street parking.' 'Whether the proposed 4.8 metre hardstand car space should be refused because it did not meet the 5.5 metre DCP requirement.' 'Whether removal of the frangipani and lilly pilly trees and the amended landscaping were acceptable.' 'Whether approval would create an undesirable precedent.']

Ratio Decidendi

The appeal was upheld because, considering the s 79C matters, the site constraints, the existing Jensen Avenue streetscape containing many hardstand car spaces forward of the building line, and the amended design with permeable wheel strips and 65% landscaping, the proposal was permissible and acceptable on its merits despite non-compliance with WDCP controls about location forward of the building line and car space length. The Court preferred the applicant's evidence that the development would not adversely affect streetscape, pedestrian safety, visual relationship with the street, or on-street parking, and that any precedent concern was distinguishable on the facts.

Court Disposition

Appeal upheld; development application granted consent subject to conditions.

Orders

  • ['The appeal in matter number 09/10205 is upheld.' 'The development application as amended by the plans prepared by Land Studio, landscape architects, drawing number 09-513-LD01 dated June 2009 is determined by the granting of consent subject to the conditions in Annexure A.' 'The exhibits will be returned when the...