Bayswater Estates Pty Ltd v Sydney CC

Land and Environment Court (NSW)|2006-03-03|Before: Ms P

Background. 1 This matter involves an appeal against council's partial refusal of a s 96 Modification application to an approved 5-storey apartment building containing 4 x 1Br units and 6 x 2Br units, with basement parking at No. 44B Bayswater Road, Rushcutters Bay. The approval for this development was granted by consent orders in Appeal No 10250 of 2003.

2 The basic modification involves the realignment of the building footprint at the basement and ground levels and to extend this footprint within the northern corner of the building to create a new garbage storage area. Council raises no objection to this modification because it does not alter the external appearance of the building. Consequently this modification creates more basement area and allows the relocation of the garbage storage area, which is acceptable to Council.

4 However the council opposes this because it is not in accordance with the prevailing DCP 11 provisions, which restrict on-site parking in this area. Insofar as the additional basement space has been created and can remain, Council then requires this to be used as a storage area.

Planning Controls. 5 South Sydney LEP 1998. Under this LEP, the site is zoned Residential 2b (Medium Density). It is within a conservation area -CA19 Elizabeth Bay and is within proximity to a number of heritage items. The following objectives of the LEP have been identified as relevant in this matter: (a) To ensure a sustainable City of South Sydney through the efficient and equitable management and allocation of resources; (b) To implement the goals and objectives contained within the Strategy for a Sustainable South Sydney published in June 1995 by Council;

6 Development Control Plan No 11 - Transport Guidelines for Development 1996. These DCP guidelines are to be considered in conjunction with other requirements for development applications and contain the following relevant objectives : + To encourage a reduction in the level of vehicular travel in South Sydney by reducing parking requirements and improving facilities for pedestrians, cyclists and public transport users; + To ensure that an acceptable level of parking is provided on-site to minimise the unreasonable overflow of parking onto surrounding streets;

7 To achieve these objectives the following controls are stated: + 1 bedroom unit; 0.5 spaces per unit; + 2 bedroom unit; 0.8 spaces per unit; + Visitor parking; 1 per 6 units.

8 Section 3.2 of the DCP states that the parking rates do not represent a code that should be blindly adhered to, rather they are generalised rates that they meet most circumstances. Applications are assessed under a system of merit and there is scope for parking provision to be flexible to suit the particular circumstances and local conditions.

9 Section 3.2.1 refers to concessions to reduce carparking whereby consideration may be given to, inter alia, + the size and type of development and the degree of impact on local parking conditions should provisions be reduced, + the availability of carparking on-street, and + the projected requirements of people occupying the development taking into account the socio-economic, status, age, ownership levels, life cycle, etc.

The evidence. 10 Detailed evidence on this contested issue was presented by: + Ms S McMahon, Council's senior planner and her report is Exhibit 1; + Mr D. Crane, consulting town planner and his report is exhibit B; + Mr G. Pindar, traffic consultant and his report is exhibit E.

11 The approved development for the 10 units is on the condition that it provides eight spaces to be allocated among the units and two designated visitor carparking spaces. The conditions of consent require further details to be submitted of the access arrangements to the carparking area, from the rear access in Roslyn Street.

12 Mr Crane supports the modification so that each residential unit has one carparking space because: + the residents are likely to be singles and couples in the 20-45 age group who work in the CBD and also the over 55 age group who desire a location with good access to the CBD, shopping and entertainment facilities and public transport services; + these residents are likely to have high disposable incomes and a propensity, desire and need to own their own car for a variety of reasons, including shopping. This includes access to supermarkets whereby he notes that access to the local supermarket (Woolworths) is some 800 m from the site, which he considers is too great for carting of groceries either in a shopping trolley or on public transport. Accordingly he says that the denial of a car space for each unit is programmatic and discriminatory; + the on-street parking in the vicinity of the proposed development in Bayswater Road and surrounding streets is limited and time restricted. Therefore any residents of those apartments who do not have car space and to own a vehicle will be forced to park on -street. Furthermore, visitors in private vehicles will be able to use the car spaces of the residents of those apartments who may not own a private vehicle, or company for the designated visitor spaces which does not discourage private vehicle use in this area.

13 Consequently his conclusion is that taking into account the limited available and time restricted on-street parking supply in the vicinity of the development, there is no material benefit in restricting the supply on site parking from residents of the development, such that two of the proposed apartments would be constructed without the benefit of car space. The consequences of not providing at least one car space for each apartment is likely to lead to a parking overflow from the development onto surrounding streets, which would be inconsistent with the objectives of DCP 11 and LEP 1998.

14 Mr Pindar also supports the modification to allow each residential unit to have one carparking space. He notes that under DCP 11, 9 spaces are allowed and that the approved development is for 10 spaces. On the basis that the DCP allows discretion for variation of the guidelines, he considers such discretion be to allow more on-site resident parking should be exercised because: + the DCP was prepared in 1993 and has not been updated even though this is a requirement of the DCP; + the DCP has the status of an interim document, as identified by Central Sydney Planning Committee resolution of 19 Aug 2004, pending the preparation of consolidated planning controls to cover the entire merged areas of the previous City of Sydney and South Sydney; + the proposal would not undermine council's policy which is aimed at reducing car usage because the additional parking sought will not result in additional car trips at times that are of concern to planners, most notably the on street morning and afternoon peaks periods. These relate principally to ' journey to work' trips, where the residents will still the most likely use the available public transport, because of its convenience; + but there are numerous other trips that are not conducive to public transport use such as recreational, shopping, education and social trips which occur outside off-peak hours, that the people in the units are likely to prefer private vehicle access.

15 Against this, Ms McMahon does not support the non-compliance with the DCP 11 parking provisions because she considers the site is well located to existing transport facilities including rail, bus services and other facilities. Accordingly, she says that allowing an increase in the number of parking spaces would encourage a higher proportion of car ownership within the building and discourage use of public transport, which is contrary to the intent of the current controls.

Conclusions. 16 In determining this matter, I have considered the evidence the submissions and undertaken a view and I am satisfied that the s96 Modification relates to the same development and the objectors have been notified and their submissions considered. Consequently, I accept the major merit issue concerns the relevant parking guidelines in DCP 11, which allow a degree of flexibility in their application because they do not have to be blindly adhered to. Also these guidelines have subsequently been classified as interim, with the change of council boundaries and subject to review.

17 The submissions have made reference to other recent cases where variations have been allowed. These cases include Jaguar Investments Pty Ltd v Sydney City Council [2005] NSWLEC 337 where Commissioner Tour found: "the rates proposed in DCP 11 are not justified by traffic studies and the Council has resolved that the DCP is an interim document that is to be reviewed. Nonetheless, the document must be the focal point for the consideration the merits application. In varying parking rates the objectives of the DCP must be met."

18 Also reference was made to the recently determined case of Lachlan Project Management v Sydney City Council [2006] NSWLEC 28, where the Court exercised its discretion and allowed a variation to the DCP 11 provisions, preferring instead to rely on the development standards contained in LEP 2005, which applied to nearby land.

19 Taking DCP 11 as the focal point for determination of this matter, I note its general aims are to restrict the use of private vehicles and encourage the use of public transport and access to other services. The application of the guidelines results in two units having no designated car spaces, but visitors having access to two on-site car spaces.

20 In my assessment, Mr Cranes argument that this causes discrimination against some of the residents seems reasonable, because the existing consent does not encourage visitors to the site to use public transport, instead it accommodates their access to the site by vehicle and competition for the two visitors spaces or subsequent use of on street parking where available. Whereas some of the resident of two of the units are forced to use public transport, or compete for limited available on-street parking spaces if they choose to own a vehicle.

21 Accordingly, I am satisfied that a reasonable case has been made to exercise the discretion available in the DCP, in this case. Mr Cranes unchallenged evidence regarding their socio-economic status of the likely people in the units and the fact that the units had relatively large for areas for both 1BR units and 2BR units , somewhat substantiates this, indicating the likelihood of high individual car ownership. Therefore these residents will seek parking somewhere and if it is not provided on-site, it is likely they will overflow into surrounding streets, which is contrary to the DCP objectives.

22 Furthermore, accepting Mr Cranes opinion that these people are likely to be in the higher upper socio-economic range, with higher car ownership levels, I consider this is a reasonable factor to allow some concessions as provided for in s 3.2.1 of the DCP.

23 It then seems to me that the public interest is well served by the consistent application of reasonable policies. When DCP 11 was adopted in 1996, it was on the basis that it would be regularly reviewed, but apparently that has not occurred and when the local government boundaries were recently adjusted, the DCP guidelines were continued on the basis of an interim document, by Sydney City Council.

24 However, over the same time period, Sydney City Council confirmed (presumably after review) its relatively longstanding parking requirements for its area, which is in nearby proximity to subject site. These development standard requirements were confirmed by way of the following maximum parking rate development standards in LEP 2005 (December 2005): + 1 Bedroom unit; 0.5/unit, + 2 Bedroom unit; 1.2/unit, + Visitor parking; no specific provisions. 25 The confirmation of these standards highlights an obvious differentiation in the controls, within this relatively compact neighbourhood of Potts Point, Kings Cross and Rushcutters Bay, where all residents generally have access to the same level of access to the transport, other facilities and services. As the recently adopted Sydney City Council development standards are presumably based on a reasonable level of access to the design range of transport and facilities, I consider there is a strong case to adopt consistent controls within this neighbourhood.

26 Therefore the application of the LEP 2005 standards results in the provision of 10 residential carparking spaces for the approved apartment development and no visitors spaces. Both Mr Crane and Mr Pindar agree that this is a reasonable basis to exercise discretion under the interim status of DCP 11. Although Mr Pindar also agrees that the additional, available space be used for two visitor parking spaces.

27 Insofar as these standards do not apply to the subject area and Ms McMahon rejects this approach of selecting preferred controls from other instruments and applying them outside the boundaries, I am inclined to discount this opinion because her comparison with alternative, random building height standards does not result in a relevant comparison of impacts occurring, that is comparable to the current circumstances of this case.

28 In summary then, the evidence before the Court indicates to me that it is reasonable to exercise the discretion in DCP 11, so as to allow more resident carparking spaces on-site, because of the type of units and the likely socio-economic status of the residents, so as to avoid parking overflow onto the surrounding streets. I consider a reasonable approach is to apply the recently adopted parking standards in LEP 2005, which applies to other streets in this general neighbourhood so there is consistency in the application of design guidelines. In this regard, I particularly note Ms McMahon's inability to identify any distinction in the respective neighbourhood areas, which would require strict adherence to the DCP 11 guidelines. Notwithstanding, I also consider this approach is consistent with the relevant objectives of the South Sydney LEP 1998.

29 This conclusion results in a maximum of 10 resident carparking spaces on-site, with no visitors spaces. In my assessment, this would satisfy the objective to ensure that an acceptable level of parking is provided on-site to minimise the unreasonable overflow of parking onto the surrounding streets. In conjunction with this, the elimination of the two on-site visitor parking spaces is consistent with the objective to encourage a reduction in vehicular travel because visitors should become aware of limited parking spaces and ideally make other arrangements.

30 I also consider a further reason for discouraging visitor carparking on-site is the proposed access arrangements, which involves some on street stopping by visitors, or likely blocking the street while they ascertain whether the visitors spaces are available or they seek alternative on-street spaces. Whilst I consider this arrangement undesirable, I note its acceptance by Council in the existing consent. However I consider the allowable modification improves the convenience and safety of the car park access arrangements.

31 With respect to the additional basement space, I accept Council submissions that this be designated for storage area and its use be subject to the determination of the Body Corporate, considering its use has no external impacts.

Court Orders. 1 The appeal is upheld. 2 The s96 Modification to amend the basement carparking arrangements in the apartment building at 44B Bayswater Road, Rushcutters Bay is allowed on the basis that 10 residential car spaces are provided, and the residual garbage storage area is used for general storage purposes. 3 The exhibits may be returned except for exhibits 1,2.A.B,E.

      R Hussey
      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.

CITATION : Bayswater Estates Pty Ltd v Sydney CC [2006] NSWLEC 108

CASES CITED: Jaguar Investments Pty Ltd v Sydney City Council [2005] NSWLEC 337; Lachlan Project Management v Sydney City Council [2006] NSWLEC 28

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