Bellenger & anor v Randwick City Council

Conclusion

Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent. Part of the Applicant's case relies on the precedence of a number of similar non - complying hardstands in the surrounding area, including Greville Street. However, the submissions for Council acknowledged the existence of several existing hardstands, many of which have never been approved by Council or they were approved before RDCP 2013 came into effect..
In acknowledging these crossings/hardstands, the RDCP was adopted in 2013 and the Council assessment report in Ex 2 states: "Further to the consistent advice provided by Council since 2008, it is considered that the controls relating to hardstand spaces within the RDCP 2013 have been consistently applied to development applications. Council has recognised the particular site constraints that commonly exist within the LGA for hardstand spaces for semi-detached dwellings. As shown in the referral from Council's Development Engineer, on the 24th July 2007 Council passed Mayoral Minute No 70/2007 whereby all current and future development applications shall be assessed with regard to the minimum small car requirements of the Australian Standards or 5 metres in length, whichever is the lesser."
Accordingly, I give little weight to the Applicant's referral to other non -complying, not approved hardstands and instead give determining weight to the RDCP 2013 provisions, on the basis that they have been consistently applied and they represent the changing desired future character of the area. Consequently, considering the minimum length hardstand it is then apparent that in some circumstances it may be an unreasonable expectation for a property owner that a hardstand area with a length less that 5m would be acceptable. Whilst the experts agreed that a 5m long hardstand could be appropriate in the circumstances, the proposal is deficient and the Applicant has been unable to consider alternatives.
Considering the merits, I rely on Mr Higgins engineering evidence that there is a strong likelihood of the on -site parking encroaching onto the footpath area, which would reduce the road and footpath safety. I think this would be an undesirable outcome in this street where there appears to be significant competition for on- street parking and footpath use to access the school and most likely the future preschool. This is notwithstanding references to other traffic consultant's information that was discussed.
With regard to the loss of one on - street car parking space, my assessment of the competing private and public interest considerations is the that there would be an unreasonable loss of public interest benefit because whilst the existing on -street space may be used by the Applicant, nevertheless it is available for the general public when vacant. Whilst the Applicant intends to remove the redundant driveway to No 43, this according to Mr Brennan " whilst not providing for the reinstatement of an on street car parking space will allow for the reinstatement of an equivalent amount of grassed nature strip". Overall, I do not consider this a positive public interest outcome.
By reference to RLEP 2012 I understand that this site is within the Zone R2 Low Density Residential Zone and I have considered the zone objectives of which the following is relevant: To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.
In this regard the subject property is the only semi-detached dwelling in the street and the adjoining semi has a non - complying hardstand. Whilst there are other detached dwellings that have some forms of off -street parking, I consider that the approval of this proposal for a non -complying hardstand that would presumably be noticeably marked for small car parking only, would not be one of the desirable elements of the streetscape and that it would likely introduce additional safety issues and have a negative impacts on the streetscape and amenity of residents as stated by Mr Higgins.
The RDCP controls in cl 3.6 requires consideration of the overall streetscape, continuity of footpaths and the need for safe pedestrian movement together with ensuring that pedestrian and cycling safety is maintained or improved. Based on Mr Higgins opinion on which I rely, I consider the pedestrian safety will be compromised rather than maintained or improved and this contributes to the proposals refusal.
The RDCP objectives in Cl 6 (C1) include that the location of parking/access facilities do not pose undue safety risks to occupants and pedestrians or adverse impacts on the amenity of neighbouring properties. Based on the foregoing evidence, I do not consider these objectives are reasonably satisfied in this case as stated by Mr Higgins.
In this regard, I have carefully considered the Applicant's proposal to acquire a smaller car and accept a condition restricting on-site parking to only small cars that have a length of no greater than 4.6m with the condition running with the land binding future residents. Also a s88E convenant could be placed on the property limiting the use of the car space to small vehicles of less than 4.6m long.
Whilst I accept that there is an expectation that residents will comply with all conditions of consent, I am not satisfied that this is a reasonable condition to impose in the subject circumstances. Under the current planning controls, including the RDCP 2013, Randwick Council has not elected to approve of any undersized hardstand spaces, in a manner proposed by the Applicant (i.e. conditioning the use of an undersized hardstand or requiring s88E convenant to restrict parking to a small vehicle).
In the circumstances the Court accepts the Council's submissions that it is not in the public interest to set such a precent in this locality. The approval of other similar developments under different planning controls is not a basis for approval of this application as it sets an unacceptable precedent for other developments in the area.
Furthermore, whilst I accept it is legally possible to impose such a condition and restrictions on title, on the evidence before me I do not consider this would result in a reasonable planning outcome. I do not consider the imposition of the suggested conditions addresses the fundamental constraints of the site, particularly the restricted setback of the dwelling, which then restricts the available parking hardstand area. The experts addressed the situation where a vehicle could protrude into the footpath area with Mr Higgins expressing concerns about safety and Mr Brennan saying that there is no evidence to support the notion that a car overhanging the footpath poses undue safety risks.
In the subject context, with the neighbouring school and future pre - school, I consider a cautious approach to parking is reasonable and therefore I am satisfied to rely on Mr Higgins engineering opinion which is consistent with car parking objectives to ensure that car parking doesn't pose an undue safety risk to pedestrians.
Insofar as reference was made to the determination of other similar matters, including Defterios v Woollahra Municipal Council [2007] NSWLEC 434 and Deguara v Waverley Council [2012] NSWLEC 1305, I give these little weight in the current matter because they relate to other local government areas and in my assessment determining weight should be given to the facts and circumstances by reference to the provisions of the relatively recent RLEP 2012 and RDCP 2013. On this basis and for the above reasons, I consider this proposal falls into the category stated in cl 3.6 of the RDCP, which notes that "in some cases, it may not be possible to provide off -street car parking" and accordingly I consider this application should be refused.

At a glance

Court

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Before

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Judgment (8 paragraphs)

Parties

Cases Cited (2)

Cited By (1)