Gardner & Anor v City of Canada Bay Council [2012] NSWLEC 1259

Land and Environment Court New South Wales

Medium Neutral Citation: Gardner & Anor v City of Canada Bay Council [2012] NSWLEC 1259 Decision date: 13 September 2012 Jurisdiction: Class 1 Before: Morris C Decision: The parties are to submit agreed conditions that reflect the matters raised in this judgment, in particular those in [28]. Those conditions are to be provided in electronic format by 4pm Friday 14 September to allow the making of final orders. Catchwords: Development application, carport within building alignment, whether consistent with council planning controls, impact on streetscape Legislation Cited: Land and Environment Court Act 1979; Canada Bay Local Environmental Plan 2008; Sydney Regional Environmental Plan (Sydney Harbour Catchment). Texts Cited: City of Canada Bay Development Control Plan 2008 Category: Principal judgment Parties: Joanne Gardner and Veronica Chapman (Applicants)

City of Canada Bay Council (Respondent) Representation: Ms V Chapman (Applicant) (Litigant in person)

Mr P Jackson Pikes & Verekers Lawyers (Respondent) File Number(s): 10696 of 2012

Judgment 1No. 7 Altona Street, Abbotsford is a long, narrow allotment containing a freestanding, single storey dwelling house. The narrow width of the site and the siting of the dwelling prevent vehicular access to the side and rear of the property and there is currently no driveway crossing serving the site. The applicants are seeking consent to erect a carport in the front building alignment of the site to provide new, off street parking. The council refused consent and the applicants are appealing the determination. 2The appeal was subject to mandatory conciliation and arbitration on 12 September 2012, in accordance with the provisions of s 34 AA of the Land and Environment Court Act 1979 (the LEC Act). The conciliation conference commenced on site and the Court, in the company of the parties and their experts, conducted a view of the adjacent area and neighbouring properties. 3During the conciliation phase, the council agreed that it would be appropriate to provide an uncovered parking space within the building alignment but maintained its position that the construction of the carport as proposed was contrary to its planning controls. As no agreement was reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with in an onsite hearing held forthwith pursuant to s 34AA(2)(b)(i) of the LEC Act. 4The contentions in the case are whether the application complies with the council's planning controls, particularly in relation to streetscape, landscaping, design and layout and a concern in regard to the precedent any consent may cause.