Addglow v Waverley Council [2011] NSWLEC 1166

Land and Environment Court New South Wales

Medium Neutral Citation: Addglow v Waverley Council [2011] NSWLEC 1166 Hearing dates: 8 April 2011 Decision date: 11 April 2011 Jurisdiction: Class 1 Before: Dixon C Decision: 1.The appeal is upheld. 2.Development consent is granted to DA 724/2010 for basement garages to approved dual occupancy DA 415/2010 at 12 Lancaster Road, Dover Heights subject to the conditions in Annexure A. 3.The exhibits are returned. Catchwords: HERITAGE - garage, impact of the development on the heritage significance of the sandstone retaining wall, streetscape Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006 Roads Act 1993 Cases Cited: Segal v Waverley Council [2005] NSWCA 310 Zhang V Canterbury City Council [2001] NSWCA 167 Category: Principal judgment Parties: Addglow (Applicant)

Waverley Council (Respondent) Representation: Ms Hill, Solicitor (Applicant)

Mr Patterson, Solicitor (Respondent) Susan Hill & Associates Lawyers Pty Ltd (Applicant)

Wilshire Webb Staunton Beattie Solicitors (Respondent)

File Number(s): 10065 of 2011

Ex TEMPORE JUDGMENT Summary 1This is an appeal pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against Waverley Council's deemed refusal of development application (DA 724/2010) for a garage and access stair into a basement level beneath an approved development at 12 Lancaster Road, Dover Heights. It also includes an application under s 138 of the Roads Act 1993 and s 39(2) of the Land and Environment Court Act 1979 ( the Court Act) for works within the Road Reserve . 2The matter was set down for a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (the Court Act). The parties were unable to reach agreement. Pursuant to s 34AA (2)(b) of the Court Act, the conciliation conference was terminated and a hearing was held. The parties consented to evidence heard on site and the site view forming part of the evidence in the proceedings. 3The central issue is whether the impact of the development on the heritage significance of the retaining wall is acceptable. The access to the garage is through the Road Reserve and an existing sandstone retaining wall. Such access requires a 5.22 m wide opening in the existing 2.2 m high sandstone retaining wall by excavating the nature reserve of Lancaster Road. The excavated area would have a width of between 3.6 m and 5.22m and a depth of up to 2.4 m. It is also necessary to provide a pedestrian bridge above part of the excavated area, adjoining the front property boundary to allow for a continuation of the existing footpath in this position. The plans show a 450 mm wall to be erected bordering the edge of the top of the cutting topped by a timber railing to from a safety fence. A security grill is to be provided on the property boundary of the access driveway. 4Each party relied on expert evidence. Ms Gordon (planner) and Mr Tropman (heritage expert) gave evidence for the council, and, Mr Moody (planner) and Mr Davies (heritage expert) gave evidence on behalf of the applicant. 5Based on the view of the site and the oral and written evidence I am satisfied that the development is acceptable, on a merit assessment under s 79(c) of the Act subject to the agreed conditions.