Anders v Waverley Council

Zhang v Canterbury City Council [2001] NSWCA 167; CASES CITED: Blackman v Waverley Council [2007] NSWLEC 173; Icon Building Services v Waverley Council [2007] NSWLEC 295; Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

APPLICANT Mr O'Gorman- Hughes, barrister LEGAL REPRESENTATIVES:

RESPONDENT Mr M. Staunton, barrister

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 This is an appeal under s 97 of the Land and Environment Court Act 1979 (the Act) against Waverley Council's refusal of a development application for the property known as No. 46 Francis Street, Bondi Beach. It is noted that the proposal is the subject of a s 82A review and a formal decision has not been made by the council on the s82A at this stage, however it was also recommended for refusal by the council officer. 2 This matter commenced on site this morning as a s 34 conciliation conference. After considerable discussion it became clear that agreement would not be reached and the parties consented to me arbitrating the matter under s 34(3)(b)(ii) of the Land and Environment Court Act 1979,

3 The proposal is for a car space that measures 5.5 by 2.5 metres. It is noted that 1.9 metres of that length will be underneath the front portion of the dwelling house. That is the sandstone foundation for that width and is to be removed from the dwelling and excavated. The clearance currently is some 1.3 metres so that there would be an excavation of some 300 millimetres or thereabouts to allow for a car to fit under the front of the dwelling house.

4 The Court heard from the planners for each party in this case. That is council's assessment planner Ms Rossi, and the applicant's planner, Mr Karavanis. Mr Karavanis considers that the proposed development would not be unreasonable nor would it detract from the streetscape but rather it would lead to improvements in the streetscape, in particular the additional landscaping that would be provided by the proposed development and the removal of the waste bins from being stored in the front curtilage of the property. He is of the opinion there would be no adverse impact on the streetscape and that the proposal would also have the benefit of providing for off street parking for the owner of the subject property.

5 On the other hand Ms Rossi is of the opinion that the proposed car parking space would have a detrimental impact on the streetscape and would not be consistent or in character with the streetscape. She is also of the opinion that the alteration of the fabric of the dwelling would be an unreasonable impact on the dwelling and in the context of the streetscape.

6 It was also submitted on behalf of the council that the proposal would represent an undesirable precedent in terms of other property owners within the vicinity of the subject site seeking to rely on approval if indeed approval is granted for this development application.

7 The Court in the presence of the parties had the opportunity of undertaking an extensive site inspection to understand the character of the street. Francis Street is a very long street and as agreed between the parties has a mixture of architecture over a considerable period of time and also ranging in form from single dwelling houses, semi-detached houses and residential flat buildings.

8 There was discussion during the proceedings as to what constitutes the streetscape whether in fact one can apportion/separate parts of the streetscape into various elements or whether one has to have regard to the whole of the streetscape. In my assessment it is clear that this portion/part of Francis Street has a distinctive streetscape in terms of the residential dwellings within the vicinity of the subject site. The opposite the northern portion of Francis Street is quite different and at a lower level, in fact the road is split at this location to accommodate the topography. Being able to view the streetscape in the long section is rather difficult and one in fact views the streetscape in its various portions or elements as one moves along the street.

9 Council's controls are contained in the Statement of Facts and Contentions and I note Francis Street has heritage significance in terms of the street trees, in particular the 'paperbarks' along the frontage of the subject site and adjoining properties. This is the vegetation known as L63 or the tree zone of L63 in the inventory that forms part of the LEP. In this context as such the Court must have regard to development in the vicinity of heritage items in terms of clause 49 of the LEP, and this includes this streetscape.

10 The Court was taken to the controls in the, Waverley Local Environmental Plan 1996, (the LEP). The general aims include to improve the amenity, safety, environmental quality of the built natural environment.

11 In the zone objectives it is noted clause 10(2) requires council to be satisfied development meets one or more of the objectives of the zone, in this case the Court is to be read as the council. The objectives of the low density residential zone of 2(a) includes: to maintain and improve the amenity and existing characteristics of localities predominately characterised by dwelling houses. Council contends that the proposed development does not satisfy this objective although concedes that it does satisfy objective A which is to allow housing in the form of dwelling houses and boarding houses in the subject zone.

12 The other relevant controls in the form of guidelines are contained within the DCP. The current DCP is a consolidated document and it is now known as the Waverley Development Control Plan 2006. Previously there was a Development Control Plan 2004 under which the development application was submitted however, there was not the equivalent of a savings provision in the new DCP, however, it would appear the controls have merely been consolidated in terms of the new DCP as such the same or similar guidelines have been in operation since approximately 2004. The relevant controls the Court was taken to includes the objectives to ensure the design, size and off street carparking facilities do not unreasonably detract from the appearance and quality of the dwelling house or the streetscape and to minimise the loss of on street carparking.

13 Council also took the Court to the objectives in terms of the strategies and controls wherein the DCP states "that no part of a building is to be altered or demolished to primarily provide carparking except for topography or appropriate building design allows and all car accommodation is to be located behind the front building line". Another relevant control is where an allotment has no existing off street parking and off street parking is not characteristic of the streetscape, vehicular access from the street is not allowed.

14 The objectives of the controls in terms of land use and transport include that for off street parking subject to considerations of urban designs, streetscape and heritage conservation.

15 As pointed out on behalf of the applicant the DCP contains a provision in 3(11)(a) that allows variations of standards and that "council may waive or reduce any carparking standard contained in the DCP if council considers that such a variation will permit a better planning solution to the development of the subject site".

16 Urban design, streetscape and heritage conservation in section 5 states that "the LGA has old established areas which were designed and built before the wide spread use of cars. The retrospective provision of off street carparking has caused significant impacts on streetscapes and has impacted upon the amenity of pedestrians and cyclists".

17 Council also took the Court to design considerations and the DCP states that "for the design of new developments to ensure that existing on street parking supply is protected by minimising kerb crossings and the continuity of streetscapes and elements of landscaping is maintained. Carparking bays, garages etc do not dominate the streetscape heritage conservation".

18 The DCP also contains controls/ guidelines in respect to the design of parking "access at all car accommodation is to be located behind the front building line. No part of a building is to be altered or demolished primarily to provide carparking except where the topography or appropriate building design allows and no new vehicle crossings where there is no carparking on the original lot and off street parking is not characteristic. Vehicular access from the street is not permitted and no vehicle crossing or off street parking are permitted in a heritage conservation areas where there would be an adverse impact on the streetscape continuity, the character of the built form landscape setting".

19 In terms of the decision in the Court of Appeal of Zhang v Canterbury City Council [2001] NSWCA 167 development control plans must form a central focus in an assessment of a development application. The Court must give real proper and genuine consideration to the development control plan provisions. At the same time His Honour Spigelman, Chief Justice of New South Wales indicated that the provisions of DCPs are discretionary and as such variations to the guidelines of development control plans may be considered having regard to the circumstances of the case..

20 The role of the Court is to assess the development application against council's local planning regime and in certain circumstances variations may be approved, however, deparures must be justified and assessed against the overall objectives and intent of the development control plan.

21 The Court was taken to a number of judgments and a number of approvals of the council where on-site parking has been approved. The applicant took the Court to Blackman v Waverley Council [2007] NSWLEC 173 a decision of Commissioner Bly. I note that this particular property was for the erection of a carport in Dover Heights, and in this judgment the Commissioner considered that the whole of the streetscape and the whole of the street was appropriate to have regard to as opposed to a portion. I also note that there was no alteration required to the dwelling house to accommodate the carport, although the setback from the street was not complied with. This judgment can be clearly distinguished from the current situation and current circumstances of this case.

22 The other judgment that the Court was taken to by the applicant is that of Icon Building Services v Waverley Council [2007] NSWLEC 295 wherein it is clear from this judgment that there was no interference with the fabric of the building and that the verandah and the building itself would remain in tact. It is also noted that there is no parking on the kerb outside of the that property and therefore there was no impact in terms of kerb side parking. However, I note in that case the development was within the front setback area as in the case before me today.

23 The council contends that the proposal if approved would create a precedent in terms of other properties within the street. In particular, or more particularly in terms of the adjoining properties, that is No.s 38 through to 58 would seek to invoke such an approval and therefore it would be a precedent that the Court should also have regard to what would be also the cumulative impact of this development.

24 The judgment of His Honour Justice Lloyd in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 is a relevant judgment in terms of precedent. This judgment provides authority for the fact that precedent is a relevant matter to be taken into consideration. If a consent could be readily invoked by others. On the other hand one also has to have regard to the merits of the application. I also note that if this application were to be approved there are some differences in the circumstances of surrounding properties. For example, different topography such that some of these properties that adjoin the subject site would require excavation of the footpath area as well and that would be another detractions in terms of allowing on site parking.

25 Nonetheless, in my overall merits assessment of all the facts and circumstances I have decided that the proposal does not warrant approval. I have assessed the application in terms of council's planning controls and regime and I recognize variations may at times be appropriate but I have arrived at the decision that a variation in the circumstances of this case is not justified.

26 My reasons are that the integrity of the dwelling house would be compromised by the excavation of the sandstone base and it would be somewhat contrived to accommodate a car parking space in the front setback area for the subject dwelling. The Court recognises that on-site parking, that is off-street parking is a most desirable asset in an area such as this, however, the circumstances of this case do not lend itself to on-site parking. The Court also notes from the applicant's evidence that resident parking has recently been introduced in the area.

27 In my assessment in weighing up the advantages to the applicant and the disbenefits and adverse impact of the proposal on the streetscape and the presentation of the dwelling in the streetscape the application fails. Council's controls require consideration of the integrity of the property and the fabric of the dwelling should not be interfered with in providing on-site parking. Excavation slightly under the house to provide for the carparking space and the removal of a large portion of the sandstone foundation would also have a detrimental impact on the streetscape. Furthermore, if the subject application was approved it would create a precedent which could be invoked by some of the properties if not all of the properties adjoining the subject site.

28 This streetscape is as agreed an eclectic mixture of architecture and it is also a street that reads clearly in terms of groupings of dwellings, houses, residential flat buildings. And in this portion of the street it is in many respects one of the more aesthetically pleasing of any portions of the streetscape. I recognise that these are not heritage items as such but nonetheless a carparking space that clearly does not fit comfortably in terms of the architecture of the dwelling and in terms of the streetscape is an undesirable precedent.

29 The applicant may feel aggrieved that other applications have been approved by the Council and the Court. However, I must have regard to the individual merits and circumstances of the subject application before the Court in my assessment. I recognise that off street parking is a valuable asset and in fact it would improve the amenity of the subject dwelling for the occupants, however in the circumstances of this case the configuration and juxtaposition of the proposed carparking space does not warrant approval.

30 Therefore on the basis of my assessment the Orders of the Court are:

1. The appeal in respect of the property known as No. 46 Francis Street, Bondi Beach is dismissed.
2. The development application submitted to Waverley Council and as amended and shown in exhibit A is determined by the refusal of consent.
3. The exhibits, with the exception of Exhibits A, are returned to the parties.

J S Murrell Commissioner of the Court ljr

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.