Osborne v Woollahra Municipal Council [2013] NSWLEC 1264

Land and Environment Court New South Wales

Medium Neutral Citation: Osborne v Woollahra Municipal Council [2013] NSWLEC 1264 Hearing dates: 24 December 2013 Decision date: 31 December 2013 Jurisdiction: Class 1 Before: Moore SC Decision: (1)The appeal is upheld. (2)Development Application 11/2013 for a new car space, new footpath crossing and new front grate is determined by the granting of development consent subject to the conditions in Annexure A. (3)The exhibits other than exhibit A, B, 1 and 6 are returned. Catchwords: HERITAGE; off street parking Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 1994 Woollahra Heritage Conservation Area Development Control Plan Cases Cited: Davies v Penrith City Council [2013] NSWLEC 1141 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 Category: Principal judgment Parties: Ronald Peter Osborne Marcia Deborah Osborne (Applicants)

Woollahra Municipal Council (Respondent) Representation: Mr M Staunton, barrister (Applicants)

Mr P Rigg, solicitor (Respondent) Sunman & Walker Solicitors (Applicants)

Norton Rose Fulbright Australia (Respondent) File Number(s): 10685 of 2013

Judgment Introduction 1SENIOR COMMISSIONER: The site that is the subject of this appeal is within the West Woollahra precinct of the Woollahra Municipal Council's (the Council) heritage conservation areas. The proposal for which approval has been sought is the construction of a hardstand, uncovered parking space in the front setback of the dwelling. The hearing commenced as a conciliation conference pursuant to s 34AA of the Land and Environment Court Act 1979 on 12 December on site. It was adjourned, with the matter being unresolved, and, after a number of further procedural matters, commenced with a final hearing on 24 December. 2At the conclusion of the hearing, after a short adjournment and with the agreement of Mr Rigg, solicitor for the Council, and Mr Staunton, barrister for the applicants, I provided the outcome of the appeal - being that the appeal would be upheld and the hardstand parking area approved subject to conditions - but, because of the time on Christmas Eve, it was not appropriate to take the time to prepare formal reasons to explain that conclusion, a conclusion that I described as being one reached on fine balance. 3I indicated, on that occasion, that I would provide reasons for my decision by the end of the year and that the orders of the Court upholding the appeal would be dated 24 December - that being the day upon which I had indicated the outcome of the appeal. 4The site is zoned 2A residential under the Woollahra Local Environmental Plan 1994 and the proposal is permissible with development consent. 5There were a number of matters pressed by the Council as warranting refusal and they require to be dealt with, in my assessment, under three broad headings: * arboricultural issues; * parking issues; and * heritage issues.