Vogel v Waverley Council [2010] NSWLEC 1341

Land and Environment Court of New South Wales

CITATION : Vogel v Waverley Council [2010] NSWLEC 1341

APPLICANT M. Vogel PARTIES : RESPONDENT Waverley Council

FILE NUMBER(S) : 10756 of 2010

CORAM: Fakes C

KEY ISSUES: DEVELOPMENT APPLICATION :- hardstand car space forward of building line; impact of driveway on street tree;

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996

DATES OF HEARING: 3/12/2010

DATE OF JUDGMENT: 8 December 2010

APPLICANT Ms S Hill [solicitor] SOLICITORS Susan Hill & Associates LEGAL REPRESENTATIVES:

RESPONDENT Mr S Patterson [solicitor] SOLICITORS Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C

8 December 2010

10756 of 2010 Vogel v Waverley Council

JUDGMENT

1 COMMISSIONER: This is an appeal pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the actual refusal by Waverley Council (the council) of DA87/2010. 2 This development application proposes the construction of a hardstand car space in the front yard of 43 Frederick Street North Bondi (the site). It requires the partial demolition of the masonry front fence and an extension and sharing of an existing crossover/driveway from the street. The extension of the crossover will encroach into the root system of a street tree. 3 The council's Development and Building Unit (DBU) considered the proposal and recommended approval subject to conditions however, the development application was ultimately refused by council's Development Control Committee on the basis that the development: + is contrary to the Waverley Development Control Plan (WDCP) with regard to parking; + results in the loss of a street tree; + results in the loss of one on-street parking space; and + is not in the public interest. The site and locality 4 The site is located on the western side of Frederick Street near the cul-de-sac head with O'Donnell Street. The site is relatively level and comprises a two-storey semi-detached dwelling. It is zoned 2(a) under Waverley Local Environmental Plan 1996 (WLEP). It is noted that the proposed works are permissible under the WLEP. 5 The site is adjoined to the north by the attached semi at no. 41. This dwelling has a driveway with vehicular access to a garage at the rear of that property. 6 To the south is an existing driveway leading to a single garage at the rear of 81 O'Donnell Street. It is this driveway/ crossover that is proposed for shared access to both the garage for 81 O'Donnell Street and the hardstand for 43 Frederick Street. 7 To the immediate north of this driveway is a no parking sign. Parking is prohibited at the southern cul-du-sac head of Frederick Street. 8 In front of nos 41 and 43 Frederick Street are 2 Melaleuca quinquenervia (Broad-leafed Paperbark) street trees growing in the grass verge. The verge is approximately 3.5m wide. It is the impact on the southernmost of these 2 trees that concerns council. 9 Between the no parking sign and the driveway for no. 41 there is on-street parking for two small vehicles or one larger vehicle. Technically, under AS2890.1 there is only one compliant car-parking space at the front of numbers 41 and 43.