Cloke v Mosman Municipal Council

Cases Cited: CAHCJH Pty Ltd v Mosman Municipal Council [2024] NSWLEC 1517
Edwards Pension Fund Pty Ltd v Wingecarribee Shire Council [2024] NSWLEC 1177
Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75
Pyramid Pacific Pty Limited v Ku-ring-gai Council [2006] NSWLEC 522
Young v Parramatta City Council [2003] NSWLEC 198

Texts Cited: Australian Standard 2303:2018 Tree stock for landscape use
Australian Standard AS2890.5:2020 Parking facilities
Australian Standard/New Zealand Standard 2890.1 Parking Facilities
Justice Rachel Pepper, ‘Making Sure That Curiosity Does Not Kill the CAT: the Use of Expert Evidence in Merits Review Fora Where the Rules of Evidence Do Not Apply’ (Conference Paper, COAT NSW Conference, 6 September 2019)
Mosman Residential Development Control Plan 2012 as amended December 2024
Roger Giles, ‘Dispensing with the Rules of Evidence’ (1990) 7 Australian Bar Review 233

Category: Principal judgment

Parties: James Cloke (Applicant)
Mosman Municipal Council (Respondent)

Representation: Counsel:
D Briggs (Solicitor)(Applicant)
R McCulloch (Solicitor)(Respondent)
Solicitors:
D G Briggs and Associates (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s): 2024/347383

Publication restriction: Nil

Judgment

1. COMMISSIONER: This case is about a proposed off street vehicular hard stand on residential property which will require the construction of a new driveway or vehicular crossing off Raglan Street in Mosman. Mosman Municipal Council (the Council) refused the granting of consent because of the impact the proposal will have on the on-street car parking space between a bus stop and the existing driveway at the adjacent property. The Applicant appeals that refusal on the basis of expert evidence that although people may physically be able to park four cars in that area, the dimensions of the area are such that it is only large enough to accommodate three cars before and after the Proposed Development thus there will be no loss of an on-street car parking space.

2. The Class 1 Development Appeal is pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 *(*EPA Act) and is an appeal against the Council’s refusal of Development Application No. 8.2024.113.1 seeking consent for alterations and additions to the existing semi-detached dwelling house, including the construction of a hard stand parking area forward of the dwelling (Proposed Development) at 170 Raglan Street Mosman legally described as Lot 2 in DP 445266 (the Site).

3. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 6 March 2025. I presided over the conciliation conference. As the parties did not reach agreement, I terminated the conciliation conference and following a hearing held forthwith pursuant to s 34AA(2)(b) of the LEC Act I reserved judgment on 7 March 2025.

4. The Site is located within the Zone R3 Medium Density Residential which also applies to the length of that side of Raglan Street, whereas across the road the dwellings are located within the Zone R2 Low Density Residential pursuant to the Land Use Table of the Mosman Local Environmental Plan 2012 (MLEP). This is relevant to character of the streetscape and the proposed alterations and additions.

5. The proceedings commenced on site and the Court had the benefit of walking with the parties and their experts on Raglan Street starting from the Site down the R3 Zone side of Raglan Street to the Mosman Village Church located on the corner of Raglan and Canrobert Street. We crossed the road at the pedestrian crossing in front of the Church and walked back up Raglan Street, this time on the R2 Zone side of the street, observing the Site from across the road, and then walked past the Site and crossed the road again to walk down Hamlet Lane before finally returning to the Site.

6. The Court heard from a number of neighbouring objectors on site who all support the Council’s determination to refuse the DA for the following reasons:

7. Loss of on street parking;

8. Pedestrian safety;

9. Adverse impact on Streetscape;

10. Stormwater; and

11. Long term policy and historical refusals by the Council and more recently by the Court.

12. In relation to pedestrian safety, the Council’s Assessment Report, Ex 2, Tab 2, under the heading “Submissions” includes a comment in response to “Concern it will be dangerous for pedestrians walking along” as follows:

“The proposal is located within the site and does not encroach the adjacent pavement and is unlikely to cause any dangerous impacts on for pedestrian movements.”

8. Pedestrian safety is addressed by compliance with the Australian Standard regarding off street parking and the sight lines.

9. Stormwater is also resolved and is not a matter pressed or contended by the Respondent.

10. The balance of the concerns raised by objectors can be considered as part of the contentions raised by the Respondent in the Statement of Facts and Contentions (SOFAC), filed 15 October 2024 (Ex 1). I come back to the contentions at [19].

11. The Court was assisted by the following joint expert reports which addressed the contentions set out in the SOFAC:

12. Joint Expert Report Traffic (Traffic JER) filed 31 January 2025 and prepared by Rebecca Englund, Town Planner for the Respondent and Dean Brodie, Traffic Engineer for the Applicant (Ex 4), and

13. Joint Expert Report Planning (Planning JER) filed 4 February 2025 and prepared by Rebecca Englund, Town Planner for the Respondent and Lance Doyle, Town Planner for the Applicant (Ex 5).

14. The experts also gave oral evidence in court during the hearing.

15. The court made a number of rulings on a Notice of Objection by the Applicant to the evidence of Ms Englund in the Traffic JER. The objections were made on the simple basis that Ms Englund is not a traffic engineer and is therefore not qualified to give expert evidence in that discipline. The qualifications of the experts are annexed to the Traffic JER and I accept that Ms Englund does not purport to be and is not in fact a traffic engineer. The Short Minutes of Order filed 26 November 2024 identify Ms Englund as “town planner for the respondent” and at no time has she represented herself as a traffic engineer nor purported to have that expertise.

16. Preston CJ observed in an application for costs matter, Pyramid Pacific Pty Limited v Ku-ring-gai Council [2006] NSWLEC 522 at [79] that:

“…Expert evidence, whether of a court appointed expert or other expert, is designed to assist the Court to draw conclusions in relation to the issues that are within the expertise of the expert…”

15. Traffic and parking are not within Ms Englund’s area of expertise. Nevertheless, I admitted most of Ms Englund’s evidence in the Traffic JER following hearing submissions on the Applicant’s objections, and on the basis that her evidence, in particular regarding on-street parking, involved “no more than an inference from facts of which [s]he can give direct evidence which the [Court] can just as readily make.” (Roger Giles, ‘Dispensing with the Rules of Evidence’ (1990) 7 Australian Bar Review 233, 240-241 cited in Justice Rachel Pepper, ‘Making Sure That Curiosity Does Not Kill the CAT: the Use of Expert Evidence in Merits Review Fora Where the Rules of Evidence Do Not Apply’ (Conference Paper, COAT NSW Conference, 6 September 2019)). I give Ms Englund’s parking evidence no greater weight than the weight given to the objector submissions regarding the impact of the Proposed Development on their ability to find on-street parking.

16. For these reasons, in the context of traffic and parking, where Ms Englund’s evidence goes beyond making factual observations, I have preferred the evidence of Mr Brodie, particularly in the assessment of compliance or otherwise with the Australian Standards.

Amendments to the Proposed Development

17. The Court notes that the Council as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to Development Application No. 8.2024.113.1 made on 6 March 2025 to rely on the documents and plans specified as follows:

18. Issue B amended architectural plans (Ex E);

19. Schedule of amendments to the architectural plans (not tendered);

20. Amended Landscape Plan Issue C dated 11 February 2025 (Ex F); and

21. Certification as to compliance with AS 2890.1 issued by Mr Brodie dated 17 February 2025 (Ex G).

22. I summarise the resulting changes to the Proposed Development below as follows:

23. More landscaping has been added and impervious areas reduced by:

(a) Hard stand altered to provide for wheel runners instead of a solid paved area; (b) Reduction in size of the stepping stones from the front gate to the front door; (c) Landscape calculation plan has been updated and demonstrates that the amended plan complied with the Mosman Residential Development Control Plan 2012 (MRDCP) requirements; and (d) Impervious areas plan has been updated and demonstrates compliance with the MRDCP requirements.

2. Picket fence separating the car space from the front landscaped area has been removed.

3. Retention of the side path.

4. Compliance with AS2890.1 has been notated with dimensions.

5. Coming back to the Council’s contentions as set out in the SOFAC, the Applicant submits, and the Respondent substantially agrees, that there are three issues in dispute between the parties as follows:

6. Compliance with Australian standards for off-street and on-street car parking (Contention 2);

7. Character and Streetscape presentation (Contention 1); and

8. Public interest/precedent (Contention 3).

9. I propose to deal with the three issues as articulated by the Applicant in the context of the contentions particularised in the SOFAC and the evidence before the Court.

Compliance with Australian standards for off-street and on-street car parking (Contention 2, SOFAC)

21. The proposal for a new vehicular cross over depicted in Drawing DA06 Rev B is described by Mr Brodie in Attachment D to JER Traffic at p 6 as “a new driveway layback immediately adjacent to the driveway serving the off street parking space of No. 168 Raglan Street.” I reproduce an extract of Drawing DA06 Rev B below at Fig 1.

Fig 1: Extract of Drawing DA06 Rev B dated 17 February 2025 (Ex E)

22. Contention 1 particular (h), Contention 2 and Contention 4 particular (a) were to be considered in the JER Traffic.

23. Contention 1 particular (h) contends that the sightlines between the dwelling and the street will be obstructed by the proposed off-street parking hardstand: Planning Control P9 of Part 5.7 (Privacy and Security), MRDCP. The town planning experts considered this in the JER Planning and agree that the sight lines referred to in particular (h) are not in relation to a vehicle, but rather refer to the desire to achieve passive surveillance of the street and is thus a town planning issue rather than a traffic and parking issue. This is similarly stated at par 5 of the Traffic JER. The town planning experts agree at par 16 of the JER Planning that the replacement windows to the habitable room at the front of the subject dwelling and sensitive location of landscaping will allow viewing to the street. I am satisfied that this issue is resolved.

24. Contention 2 is titled “Pedestrian safety and loss of on-street parking” and at particular (a) invokes Planning Control P3 of Part 5.10 (Transport, access and parking) of MRDCP “which gives preference to parking solutions which lead to a net increase in parking and the Objectives of this control to maximise on street parking space and allow opportunities for street parking.”. This is the main issue in dispute between the parties and the main concern raised by the objectors, namely the impact of the Proposed Development on the on-street parking. I will come back to the assessment of on-street parking at [34].

25. Particular (b) of Contention 2 expressly invokes compliance with AS2890.1 as required by Planning Control of Part 5.10 (Transport, access and parking) of MRDCP and relates to demonstrating compliance to ensure pedestrian safety. I am satisfied that the Proposed Development satisfies this contention because the design of the off-street parking space can accommodate the design envelope for a parked vehicle as per Fig 5.2 of AS2890.1 (JER Planning at par 22). The Town planning experts however were unable to agree whether the sight lines as per Fig 3.3 of AS2890.1 are applicable in this context (JER Planning at par 24). Related to this contention is Contention 4 which appears in the SOFAC under the heading B3 – Contentions requiring further information, and is titled “Inconsistencies and Inadequacies”. Only particular (a) of Contention 4 remained outstanding at the commencement of the hearing and relates to demonstrating compliance with the relevant provisions of AS2890.1. The Council’s Assessment Report, which is in evidence at Tab 2, Ex 2, provides at Section 5.0 comments from the Council’s Engineering Department which “raised no objection” and made the following comment:

“The internal driveway and parking area shall be designed in accordance with “Australian Standard/New Zealand Standard 2890.1 Parking Facilities – Off-Street Car Parking” and the relevant Council Development Control Plan.”

26. The Court has evidence as to compliance with AS 2890.1 Off Street Car Parking Facilities being the Certification as to compliance with AS 2890.1 issued by Mr Brodie dated 17 February 2025 (Ex G). This evidence was accepted by the Council and the “side issue” of compliant sight lines was acknowledged by the Respondent as not requiring slavish compliance “where the Site constraints do not easily permit compliance” and the Respondent agrees that “it would not be a sufficient issue to refuse this application” (Transcript 7 March 2025, p 115 at par 18). Accordingly, I find that Contention 2 particular (b) is resolved.

27. I will come back to Australian standards below at [34] in relation to Contention 2, particular (a) regarding the assessment and calculation of parking spaces available prior to and after the Proposed Development. However, it is relevant to note that the assessment and calculation of on-street parking spaces is to be considered in the context of responding to Contention 2, particular (a) and it is my approach, based on the principles of statutory construction, that one cannot be selective with the words in control P3 of MRDCP quoted above at [24]. It is not appropriate for the Respondent to rely on part of the control, which is what the Respondent seems to do.

28. There are more words in control P3 which give purpose and context to the preference to parking solutions which lead to a net increase in parking. The first contextual aspect of P3 is that it is a control to meet the Objective O1 which is:

“To have the width of street vehicular crossings and driveways limited (depending on the site frontage) to minimise visual impact, to maximise on street parking space and allow opportunities for street planting.”

29. The second contextual aspect of control P3 is the whole sentence in order to appreciate the context and purpose. The control P3 in full provides as follows:

“Preference will be given to parking solutions which lead to a net increase in parking by having regard to the location and dimensions of vehicular crossings.”

30. I make the observation at the outset in relation to the objective to “allow for opportunities for street planting” that there is an agreed condition 38 which provides for the planting of one street tree with written certification that the tree complies with Australian Standard 2303:2018 Tree stock for landscape use. I find that this element of the Objective O1 is satisfied.

31. In order to assess any preference to parking solutions which lead to a net increase in parking, in accordance with control P3, I have had regard to the location and dimensions of vehicular crossings in Raglan Street, in particular in the context of:

32. Objector submissions and the evidence of Ms Englund;

33. The expert evidence of Mr Brodie (and his analysis of the Australian Standards for on-street parking which I will come back to below at [57]); and

34. the earlier refusal of granting consent to a similar application by the adjoining neighbour in the decision of Thorpe AC at CAHCJH Pty Ltd v Mosman Municipal Council [2024] NSWLEC 1517 (CAHCJH*)*. The Applicant tendered some plans relating to those proceedings and other determinations by the Respondent at Ex D.

35. I address the objector evidence below under the heading of public interest and in the context of impact of the Proposed Development on the neighbours.

36. I will now look at the expert evidence and consider the Australian Standards as to the proper assessment of the whether there is a net increase in parking. I will then look at the earlier refusal for the adjoining property and distinguish that decision at [89] in the context of the location of the vehicular crossing.

The Australian Standards for on-street parking and the assessment or calculation of available parking – Contention 2 particular (a)

34. The Respondent submits in closing, that the main issue is the loss of on-street parking in terms of parking that would result from the Proposed Development. The difference between the experts is whether the number of existing available on-street parking spaces should be calculated with regard to the Australian Standard 2890.5:2020 or, as Ms Englund would have the court do, by just looking at how the area in front of the Site is being used. The Respondent is asking the Court to prefer the observation of human behaviour over the application of an Australian Standard to assess the impact of the development pursuant to control P3 of the MRDCP. I reject that approach because it would require the Court to disregard or set aside a relevant and scientifically credible standard developed by industry experts. This is relevant when I consider the balancing of the tension between the private benefit of an off-street parking space and the public benefit of on street parking available below at [91].

35. In relation to the opinions of Ms Englund regarding parking, she is not a traffic engineer. Ms Englund did not:

36. undertake any assessment of the capacity of the locality in terms of available street parking (Transcript 7 March 2025, p 39 at par 24);

37. undertake any audit of parking availability and vacancy rates in the parking (Transcript 7 March 2025, p 39 at par 36); or

38. list in her par 21 of the Traffic JER the properties nearby that have no off-street parking (Transcript 7 March 2025, p 41 at par 4).

39. Ms Englund gave evidence that:

40. Although the Council provides a resident parking scheme in other areas within the local government area, it does not do so in this area (Transcript 7 March 2025, p 39 at par 46); see also Attachment D to JER Traffic at p 5 where Mr Brodie identifies that “residents of Raglan Street are not afforded access to a residential parking scheme which do operate within the Mosman LGA” and he includes at Fig 4 up to 11 “Existing Mosman Council Resident Parking Permit Schemes”.

41. There is no restricted parking in Raglan Street (Transcript 7 March 2025, p 40 at par 12).

42. She accepts that the parking space between the northern wing of the crossing to 168 Raglan Street and the bus stop line marking at the northern extent, under the Australian Standard, falls short of and does not allow for four vehicles to park in that space.

43. Each of the properties to the south of the Site to where the church is, have a driveway for the purpose of off-street parking and that the Site, numbers 174, 176 and 176A do not have off-street parking (Transcript 7 March 2025, p 41 at par 19 and 50), and agrees that most of the allotments along that stretch have on-site parking (Transcript 7 March 2025, p 43 at par 4).

44. In the context of applying the control at P3 of Part 5.10 of MRDCP, referred to by Ms Englund at par 21 of the Traffic JER, she considers the reference to ‘net parking’ to be a reference to both parking on the street and parking on-site (Transcript 7 March 2025, p 43 at par 48).

45. Parking on the street is fixed and therefore to provide on-site parking is to add parking, subject to impact on parking within the street (Transcript 7 March 2025, p 44 at par 10).

46. There is a purpose in the Australian Standards setting minimum dimensions in Fig 3.1 within AS 2890.5 which she acknowledges are “a guide for the design of new parking spaces” and provides “what would be the ideal and maximum safety outcome” (Transcript 7 March 2025, p 45 at par 10) and “to assist with vehicles moving in and out of the space, to assist with being able to access your vehicle when your vehicle is parked.” (Transcript 7 March 2025, p 46 at par 4).

47. Nonetheless, Ms Englund opines that the relevant space between the northern wing of the crossing to 168 Raglan Street and the bus stop line marking at the northern extent:

“should remain the same. I'm not saying that it should change I'm saying that it's currently used for four parking spaces on a regular event and that seems to work. That provides amenity for the occupants surrounding those four spaces and I'm saying it doesn't need to change. I'm not suggesting that it needs to be reassessed. It's currently what it is and it's the status quo.” (Transcript 7 March 2025, p 46 at par 19)

38. I reject that opinion as expert evidence for the reasons I gave at [15] and [16].

39. The Court was assisted by the evidence of Mr Brodie whose qualifications are listed on the Certification dated 17 February 2025 (Ex G) and in the CV annexed to the JER Traffic (Ex 4). Mr Brodie also gave oral evidence of his experience and his qualifications to explain what it means to be an RMS Accredited Level 3 (Lead) Road Safety Auditor as follows:

“a road safety auditor assesses the safety of the public road network and accesses. There are three levels; level 1 where you're required to do a course and then conduct a number of road safety audits of which you then achieve level 2; and, then through further experience you're able to achieve level 3, which is the minimum requirement for all of Transport for New South Wales projects and that's the accreditation that I possess. … the role of the road safety auditors is both to assess the public safety on the road environment and also associated with access to private developments and the effects on the road safety environment, new construction project, et cetera” (Transcript 7 March 2025, p 38 at par 28 to 47)

40. Mr Brodie’s expert opinion evidence is informed by the Australian Standards.

41. I accept that Australian Standards may not of themselves require mandatory compliance. Young v Parramatta City Council [2003] NSWLEC 198, Bignold J dealt with whether a notation or reference to Australian Standards in a state environmental planning policy renders those standards mandatory requirements. However, the MRDCP invokes the Australian Standards as a means of assessing compliance with controls and their objectives.

42. In the context of balancing human behaviour and the application of the relevant Australian Standards I have had regard to and agree with what Gray C said in Edwards Pension Fund Pty Ltd v Wingecarribee Shire Council [2024] NSWLEC 1177 at [72] as follows:

“72. … It is not appropriate for the Court to set aside or disregard a relevant and scientifically credible standard developed by industry experts, such as the AS 2890.2:2018, and it is not the role of the Court to pioneer standards of its own in reliance on an individual expert or otherwise: Telstra Corporation Limited v Hornsby Shire Council (2006) 146 LGERA 10; (2006) 67 NSWLR 256 at [98]-[99]; Icon Hospitality Group Pty Ltd v Council of the City of Sydney [2010] NSWLEC 1186 at [32]; and McClelland v Wollongong City Council [2011] NSWLEC 1138 at [47]-[48].”

43. The relevant Australian Standard is “AS2890.5:2020 On-Street Parking” and was prepared by CE-001 being a committee comprised of the following representatives (Ex H, inner coverpage):

44. Association of Consultants in Access Australia;

45. Australian Automobile Association;

46. Australian Building Codes Board;

47. Australian Local Government Association;

48. Australian Motorcycle Council;

49. Department of Transport and Main Roads (Qld);

50. Engineers Australia;

51. Institute of Public Works Engineering Australasia;

52. National Heavy Vehicle Regulator; and

53. Parking Australia.

54. The committee membership of CE-001 is consistent with the statement on the penultimate page of the AS2890.5:2020 On-Street Parking:

“Committees of experts from industry, governments, consumers and other relevant sectors prepare Australian Standards … They reflect the latest scientific and industry experience. Australian Standards are kept under continuous review after publication and are updated regularly to take account of changing technology.”

45. The introduction to “AS2890.5:2020 On-Street Parking” provides that the provision of on-street parking is an integral part of urban transportation planning which seeks to cover all parking needs “in conjunction with off-street parking facilities.” And, that “although it provides minimum requirements, this Standard cannot be taken as a textbook for the design on on-street parking.” This is evident in the design of Hamlet Lane on-street parking as observed during the on-site view. The Hamlet Lane on-street parking is an example of where the Council, as road authority, seems to have decided to mark parking spaces to provide orderly parking (Section 3.2.2 AS2890.5:2020). I expand more on Hamlet Lane at [52].

46. The Scope of AS2890.5:2020 On-Street Parking is at Section 1.1 and provides

“This Standard sets out requirements for the location, arrangement and dimensions of on-street parking facilities. …”

47. Parallel parking is dealt with at Section 3.2 of AS2890.5:2020 and provides at Fig 3.1 typical parallel parking layout for cars including a number of notes.

48. I will now consider the application of AS2890.5:2020 as the overriding guide on the evaluation of the Proposed Development. The impact on the neighbours is one of human behaviour rather than the application of planning law or other scientifically credible standards developed by industry experts. I will come back to addressing the impact on the neighbours under the headings of Public Interest and Precedent below.

49. I conclude that it is not appropriate for the Court to disregard AS2890.5:2020 nor is it appropriate for a court to implement or give greater weight to human behaviour as Ms Englund seeks to do. Local Government was represented in CE-001 and notwithstanding the long history of matters and concerns raised by neighbours regarding parking demand on Raglan Street, the Council has chosen not to implement any parking controls in the relevant area, either by road markings for parking bays (as per Hamlet Lane) or by parking sign controls, except for the line marking for the bus stop immediately in front of the residential flat building at 174 Raglan Street, which may in fact have been the relevant state bus transport authority and not by the council.

Will there be a net increase in parking when assessed pursuant to Australian Standard AS2890.5:2020 Parking Facilities Part 5: On street Parking (Ex H)?

50. There are provisions for parallel on-street parking contained in Section 3 “Parking arrangements and bay dimensions for cars and light commercial vehicles” of AS2890.5:2020 which provide that on-street parking generally comprises three types: parallel kerbside, angle kerbside, and centre of road.

51. Of relevance to these proceedings is parallel kerbside parking and AS2890.5:2020 states that parallel kerbside parking in the direction of traffic flow is the basic method of parking provided for in regulations and that

“It presents, under properly controlled conditions, the least impediment to the orderly and regular flow of traffic along a road.”

52. Dimensions and layout of parking spaces were viewed and measured on Hamlet Lane and Mr Brodie drew the Court’s attention to differing marked parking bay lengths recommended for parallel kerbside parking bays depending on whether the parking bay is an end space, the type of end space or an intermediate space. During oral evidence Fig 3.1 of AS2890.5:2020 titled “Typical parallel parking layout for cars” was provided to the Court and I note it includes a key. Consistent with Mr Brodie’s evidence, that key marks and differentiates between four different parking bays and the recommended length of each. I reproduce Fig 3.1 below at Fig 2:

Fig 2: Fig 3.1 – Typical parallel parking layout for cars, AS 2890.5:2020, Ex H)

53. I have considered the Council’s Assessment Report, Tab 2, Ex 2 which refers to the objectors concerns in relation to loss of on-street car parking spaces and then comments as follows:

“Agreed. Refer to Section 5.2 and Section 5.10 for further information.”

54. Section 5.2 MRDCP is dealt with in the Assessment Report under the heading “6.3 Development Control Plan”: and the assessing officer writes that

“The proposed car parking space and driveway is not supported as it leads to a loss of on-street parking and impacts on the amenity of the neighbouring properties. […]”.

55. I make the observation firstly that the balance of the assessment of Section 5.2 in the Assessment Report focuses on reserving the area forward of the front building alignment predominantly for vegetation and landscaping and to make a positive contribution to the streetscape (Objective O2 of Part 5.2 of the MRDCP). I will come back to this objective as it relates to character and streetscape presentation.

56. Section 5.10 of the MRDCP is dealt with in the Assessment Report without referring to control P3 regarding “net increase in parking” states that “the proposed hardstand car parking is not supported due to the loss of on-street parking space.” The Assessment Report does not assist the Court.

57. The only assessment undertaken that provides assistance to the Court is that undertaken by Mr Brodie. Mr Brodie prepared a “Compliance Assessment of Proposed Driveway Access/Garage of New Dwelling Assessment Report” dated 19 October 2024 (Compliance Assessment) which appears at Attachment D to the JER Traffic (Ex 4). Mr Brodie undertakes an assessment of the “off street parking availability in the vicinity of the development site and the associated type of housing in place.”

58. Mr Brodie measured the existing bus stop area and available kerb space for on-street parking between Hamlet Lane and the driveway serving the car port of the adjacent neighbour at 168 Raglan and he includes in his Compliance Assessment at Fig 5 those measurements on an aerial photograph disclosing a distance of 22.5m of available kerb space for on-street parking between the bus stop and the driveway at 168 Raglan Street.

59. Mr Brodie addresses the applicable Australian Standards from p 8 of his Compliance Assessment by reference to Fig 3.1 of AS2890.5-2020 and concludes that “having regard to the minimum requirements of the Australian Standards where end spaces can be 5.4m in length and intermediate space lengths must be a minimum of 6.0m. From the measure available length of kerb space between the existing bus stop and the driveway of No 168 Street (measured to be 22.5m), it is evident that there is only three (3) compliant on street parking spaces available.” (p 8 Attachment D to JER Traffic) Figs 7 and 8 of his Compliance Assessment support Mr Brodies’ conclusion that the

“resulting new driveway would not result in the net loss of compliant parking spaces in Raglan Street. There would be no loss of public parking with the construction of the driveway serving No 170 Raglan Street.

However, the proposal would result in an increase in parking as it would result in the ability to park a vehicle off street within No 170 Raglan Street whilst not reducing the available compliant number of parking spaces between No 168 and the existing eastbound bus stop.”

60. The Applicant submits that the Respondent seeks compliance with the Australian Standard for off-street parking, and indeed also with regards to street tree planting, but does not seek compliance with AS for on-street parking.

61. I accept the evidence of Mr Brodie and adopt his reasons for finding that the Proposed Development does not contravene control P3 of the MRDCP because the Proposed Development achieves the objective O1:

“To have the width of street vehicular crossings and driveways limited (depending on the site frontage) to minimise visual impact, to maximise on street parking space and allow opportunities for street planting.”

62. Further, having regard to the location and dimension of the proposed new vehicular crossing the Proposed Development provides a parking solution which would lead to a net increase in parking, namely maintaining the existing 3 compliant on street parking spaces and allowing for an additional off-street parking space on the Site. This is relevant to the issue of resolving the tension between the private benefit and the public interest as presented by the Council of maintaining the status quo which I come back to at [91] when I consider Contention 3, particular (b) of the SOFAC.

63. I now turn to the second issue in dispute between the parties.

Will the Proposed Development result in unacceptable impacts upon the character of the streetscape? (Contention 1)

64. The Respondent contends that the presentation of the Proposed Development to the street in built form, the landscaping, changes to the front setback, variation to the building form, and the existing semi-detached pair of dwellings will result in unacceptable impacts upon the character of the streetscape. I find that this contention is not supported by the evidence in light of the Proposed Development before the Court.

65. The Site is located within the Sirius Slopes Townscape as defined by Part 7.4(20) of the MRDCP. The description of the area notes “a diversity of buildings” and “medium to light tree cover”. The planning controls include:

“(f) Use selected trees to give a structure and reference point between the dwelling house and garden, and garden and landscape. …

(g) Traditional gardens here are with enclosed grass space defined by shrub plantings forming formal and informal hedges.”

66. The parties agree that the Proposed Development demonstrates consistency with the 25% minimum landscapes area provision of cl 6.6 of the Mosman Local Environmental Plan 2012 resolving Contention 1, particular (d) and that the retention of the pathway along the side of the dwelling resolves Contention 1 particular (e).

67. The particulars of Contention 1 regarding character of the streetscape which remain pressed by the Council can be grouped into two themes, firstly

68. landscaping making a positive contribution to the streetscape (particulars (a), (b) and (c) of Contention 1); and, secondly,

69. alteration to the built form of the semi-detached dwelling (particulars f, g and h).

Landscaping and character of the streetscape

68. Dealing firstly with landscaping, I am of the opinion that the proposed landscape does make a positive contribution to the streetscape because it is consistent with the Sirius Slopes Townscapes in a number of aspects.

69. I have had regard to the proposed landscape plan at Ex F.

70. Ms Englund’s original opinion in the JER Planning (Ex 5) at 20 that “the proposal will detrimentally impact upon the landscaped character of the site” was based on a now superseded landscape plan. She then gives her town planning opinion on character in cross examination as follows:

“I would just add to that discussion about the landscaping on those sites and I guess the proportion of parking spaces to landscaping, so I made a comment before about the blocks to the south of the site along Raglan Street being insignificantly wider than the subject site and in several instances on the site view I did highlight that, where there was either a driveway or a parking space, there was also large area of landscaping also forward of the building or to the side of the parking spaces and so I think also from ‑ I'm just trying to remember if there was anything else I specifically pointed out.

Yes, just highlighting the differences between driveways and hardstand areas. The properties to the south did have driveways but I think there was, with the semi next door, so the two spaces next door were the only ones in that stretch which had parking, like hardstand parking space forward of the residence, that being different to a driveway.” (Transcript 7 March 2025, p 61 at par 10)

71. The Council’s Assessment Report (Ex 2, Tab 2) addresses Part 7.4(2) Sirius Slopes Townscape and similarly is based on a now superseded landscape plan, providing as follows:

“The proposal includes a hardstand car parking space and replaces the existing landscaping on the streetscape. Although the proposal includes landscaping within the side boundary of the site, the impact to the streetscape cannot be minimised.

The proposal fails to meet the following objective of the MRDCP, and is not supported by Council: (2) Maintain a general dominance of landscape over buildings by: b. the sensitive location of buildings, driveways or other structures on the site.”

72. The landscaping proposed has been amended since the comments above were made. The proposal now is as depicted in the Landscape Plan Drawing L01 Issue C dated 11 February 2025 (Ex F) which proposes two shrubs, Syzygium australe, commonly known as Bush Cherry which grow to a mature height of 3m, and a tree, a Camellia sasanqua which grows to a mature height of 3 to 4 m. This tree and the shrubs, together with the amendment from an impermeable hardstand to parking strips with mini mondo grass plantings to the centre and edges of those parking strips, result in my being satisfied that the front of the property will maintain a general dominance of landscape over buildings. The proposed landscaping is also consistent with the description of the Sirius Slopes Townscape as defined by Part 7.4(20) of the MRDCP as quoted above at [64].

Built form and character of the streetscape

73. Moving on to the built form, I accept Mr Doyle’s evidence because he accurately describes the existing built form and gives an accurate summary of the Proposed built form. Mr Doyle’s evidence in the Transcript 7 March 2025 p 57 par 8 regarding remarks made during site view is as follows:

“The main issue that jumped out at me, looking from the other side of the street, is the lack of symmetry with the semidetached building. It's lost its symmetry because of the change to the external finished, the different roof colour and material, the different wall colours and the two structures are now contrasting to each other, I believe, and I note therefore if I may speak to the proposal.

The proposal seeks to delete a few items from the front of the house but it maintains the roof material, being terracotta tiles, it maintains the tuckpointed brickwork, which is a very significant visual feature and it's a shame that the other side took that away and did that to the other side. However, the complying development regime allows that to happen. It allows significant or total demolition of those structures on the site, and we're mindful of that, and that's however we're seeking to preserve as much of the existing building as possible along with its finishes and also to do a soft approach to the car parking space at the front with landscaping.”

74. Focusing on character of the streetscape, the evidence by Mr Doyle in the Transcript 7 March 2025 p 60 par 27 is as follows:

“The character of Raglan Street is fairly varied because one side is low density, the other side is medium density, and our site view was mainly for the western side, which is the R3 medium density zone where the subject site is located. The main thing that I was conscious of, and most people would be conscious of, is the number of off‑street parking facilities available along there, some covered, sorry, most covered, some uncovered, some just fenced. I don't recall any of them on the western side having a gate across the front.

The character is varied. We've got a range of, some of my notes say, we've got 11 residential flat buildings on that side of Raglan Street. We've got 10 dwelling attached and detached along with a church and the Mosman Prep School, which also has a car parking space at the front. The eastern side of Raglan Street is primarily detached dwellings, there is one or two medium density historical dwellings there, it's got a large number of garages for vehicles to park but again there was the main element that I saw was a proliferation of car parking spaces on or in very close proximity to the front boundary on both side of the street.”

75. Ms Englund does not give any contrary evidence and only adds her observations regarding landscaping reproduced above.

76. Accordingly, I find that on balance the Proposed Development will not have an adverse impact upon the character of the streetscape because the location of the proposed driveway is not in the middle of the frontage of the site but rather aligns adjacent to the adjoining driveway at 168 Raglan Street. The other reason I make this finding is that the landscaping treatment is compatible with the streetscape as I observed on Raglan Street and otherwise consistent with the planning controls set out in Part 7.4(20) of the MRDCP regarding the Sirius Slopes Townscape being an area with “a diversity of buildings” and “medium to light tree cover”.

77. I now deal with the public interest contention.

Public interest in terms of undesirable precedent and the tension between private and public benefit (Contention 3)

78. In relation to suitability of the Site for the Proposed Development, one objector said to the Applicant, “if you want off-street parking, sell and buy somewhere with off-street parking!”. Notwithstanding this suggestion, for the purpose of s 4.15(1)(c) of the EPA Act, I note and I agree with the Council’s Assessment report, (Tab 2, Ex 2) which concludes that “[t]he site is suitable for the proposal pursuant to s 4.15(1)(c) of the Environmental Planning and Assessment Act 1979”.

79. The Council and objectors have raised the public interest as a relevant consideration in the evaluation of the determination of the Proposed Development: s 4.15(1)(e), EPA Act. I note that the Council’s Assessment Report Ex 2, Tab 2 in response to public interest concludes that “no public interest matters have arisen in the evaluation of this application.”

80. Mr Doyle was not asked any questions during the hearing and his evidence regarding public interest is contained in the JER Planning (Ex 5) at par 33 and is limited to the character. Mr Doyle is of the view that the Proposed Development,

“with some minor refinements to landscaping will endorse the public interest by sensitively providing off-street parking with associated landscaping to soften the outcome and retaining a compatibility with the character of Raglan Street.”

81. The Contention 3 regarding public interest is framed in the SOFAC by reference firstly to undesirable precedent and secondly to the tension between private and public benefit. I will deal with these in turn.

Will the Proposed Development be an undesirable precedent? (Contention 3, particular (a))

82. There are two elements to precedent contended in particular (a) of Contention 3. Firstly, the Council contends that there is nothing that differentiates the circumstances of this site/application from adjoining or nearby sites on Raglan Street. I disagree with this contention and will explain why by referring to the evidence of Mr Brodie and the submissions of the Applicant.

83. The second element contended in particular (a) of Contention 3 is expressed as the cumulative effect of individual driveways associated with every dwelling or semi-detached dwelling along Raglan Street and that this will have an adverse impact upon on-street parking and the character of the streetscape and its landscape. Again, I do not accept that there will be the feared cumulative effect because the Site is uniquely located at one end of a dedicated bus zone and the new vehicular crossover is proposed to be located immediately adjacent to an existing driveway.

84. I have dealt with the impact of the Proposed Development on the character of the streetscape above, finding that the proposed landscape does make a positive contribution to the streetscape and that the built form remains compatible with the streetscape. I have similarly dealt with the impact upon on-street parking above, finding that control P3 is complied with because the objective is achieved.

85. Returning to the first element, in evidence before the Court is the determination by way of refusal of a similar development application by the adjoining neighbour at 172 Raglan Street, Mosman. The neighbour’s development application was ultimately determined by the Court in CAHCJH.

86. The Council’s bundle of documents includes assessment reports and determinations of other hard stand and carport development applications, as well as Ex D which is the approval for the adjacent 168 Raglan Street.

87. Ms Englund opines at par 39 of JER Planning that there are not any matters that differentiate this Proposed Development from that considered by Thorpe AC in CAHCJH regarding 172 Raglan Street whereas the Applicant sought to distinguish the decision because of the location of driveway, the proposed compliant landscaping, and the location of the Site relative to the strip of on-street parking. I agree with the Applicant’s submission.

88. The decision of CAHCJH addresses streetscape at [19], loss of on-street parking at [23] and Thorpe AC deals with the public interest from [28] by discussing the Council’s contention that the approval of the Development Application would establish an undesirable precedent. She then considers the application of Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 and the principles for the assessment of potential planning precedents set out by Lloyd J.

89. Firstly, it is trite to say that each matter is assessed on its own merits, however, as public interest and undesirable precedent is expressly contended by the Respondent, it is necessary to say as much. Secondly, I am not bound by the decision of another Commissioner. I find that there are substantial and sufficient differences between the proposal before Thorpe AC and the Proposed Development. Those differences, which distinguish this matter, include the following:

90. Location within the on-street parking area. Thorpe AC accepted the ‘expert planning evidence’ of Ms Englund in CAHCJH whereas, in relation to issues of traffic and parking, for reasons given above, I have preferred the evidence of Mr Brodie, Traffic Engineer. The location of the proposed new vehicular crossing is to be immediately adjacent to an existing vehicular crossing at 168 Raglan Street which limits the width of the street vehicular crossing and maximises on-street parking space. The existing vehicular crossing at 168 Raglan Street can readily be seen in Photo 2 at p 3 of Attachment D to the JER Traffic. This was not a design option available to 172 Raglan Street simply by the nature of the location of that site.

91. Impact of opening a 3 m wide vehicular crossing will not likely have pedestrian safety impacts and is supported by AS off-street parking certification (Ex G).

92. Landscaping proposed is compliant with the MLEP and the MRDCP controls for the Sirius Slopes Townscape (refer above to [72]) whereas in CAHCJH, Thorpe AC found at [19] that 172 Raglan Street “would permanently reduce the possibility for the frontage to contribute to the streetscape”.

93. Location and design of the driveway in CAHCJH at [22] is described as “[t]he parking space is proposed to occupy the entire length of the front setback, including extending under the front verandah to sit tightly against the dwelling”. At 172 Raglan Street the driveway was proposed to be centred rather than adjacent to the boundary which is the Proposed Development being evaluated by the Court.

94. Accordingly, I conclude that the decision of CAHCJH can be distinguished in substantial and sufficient ways to be of no real assistance to the Court in assessing and determining this matter.

The tension between private and public benefit (Contention 3, particular (b))

91. The final consideration is Council’s contention that the potential benefits for one individual property associated with one off-street parking space do not outweigh the impacts upon the streetscape and the amenity of the wider community that rely upon the on-street parking adjacent to the site.

92. Similar to these proceedings, it is reported at [17] in CAHCJH that an objector spoke about

“the public interest in shared parking and Council’s longstanding position on the issue, characterising the proposal as lacking in community spirit for its attempt to privatise public parking space.”

93. Mr Doyle does not address the tension of private versus public benefit and to that extent the Court is not assisted by his evidence.

94. Thorpe AC concludes at [33] that “[t]he potential private benefits offered do not outweigh these significant negative impacts and in that sense the proposal is not in the public interest.” It may be that in the specific factual circumstances of the consent sought at 172 Raglan Street, the tension between private and public benefits was unable to be balanced. I find that in these proceedings, the tension is balanced, albeit finely, because of the proper application of the controls in the MRDCP as set out above at [62].

95. I make an observation regarding the statement by Ms Englund in JER Planning at par 36 that there is no entitlement to vehicular access. During the proceedings it was confirmed that Ms Englund here is making a reference to s 6 of the Roads Act 1993 which I reproduce in full as follows:

“6 Right of access to public road by owners of adjoining land

(1) The owner of land adjoining a public road is entitled, as of right, to access (whether on foot, in a vehicle or otherwise) across the boundary between the land and the public road.

(2) The right conferred by this section does not derogate from any right of access that is conferred by the common law, but those rights are subject to such restrictions as are imposed by or under this or any other Act or law.”

96. The right of access is clearly subject to planning law which is captured in the provisions of s 4.15 of the EPA Act in determining a development application where the public interest is an express consideration. I take this no further.

97. Ms Englund says that the dwelling is suitable for people that do not own a vehicle or that rely primarily on public transport (par 37, JER Planning) and explains that

“the site is ideally located within easy walking distance to shops along Military Road, with a bus stop in front of 174 Raglan Street that is regularly serviced by a bus service that will take passengers to Raglan Street commuter wharf, and an additional bus stop 250m away on Military Road that is regularly serviced by buses that will take passengers to Spit Junction and into the City.” (JER Planning at par 35)

98. The same can be said of the nearby residential flat building at 174 Raglan Street, that comprises of 12 dwellings and does not, and is not able to, provide any off-street parking to its residents.

99. The Court is tasked with considering the public interest in the evaluation of this Proposed Development whereas Ms Englund’s opinion at par 37 of the JER Planning goes to suitability of the Site which I have dealt with above.

100. I do accept that adjoining residents who rely on car parking provided on-street will experience some frustration at the reduction in length of on-street parking adjacent the existing marked bus stop. However, that frustration must be assessed in accordance with the planning controls as guided by the Australian Standards for the reasons I set out above at [34]. In an attempt to address and balance these tensions, I am assisted by the language used in the MRDCP, Part 5.10 at O1 and control P3. The Proposed Development has been evaluated and assessed in accordance with the desire to “maximise on street parking” and giving preference to “parking solutions which lead to a net increase in parking by having regard to the location and dimensions of vehicular crossings.”

Findings and Conclusion

101. I make the following findings and conclusions on the three issues in dispute between the parties which lead me to conclude that development consent can be granted subject to the agreed Proposed/Draft Conditions of Consent (Ex 7):

102. The Proposed Development substantially complies with Australian standards for off-street and on-street car parking and as a result of the proper application of the MRDCP the location and width of the proposed new vehicular cross over is appropriate;

103. The presentation of the Proposed Development will not have an adverse impact upon the character of the streetscape (refer to [76]); and

104. The tension between the private and public interest in finely balanced and the location of the Site is unique along Raglan Street which prevents the grant of consent becoming an adverse precedent.

Orders

102. The Court orders:

103. The appeal is upheld.

104. Development consent is granted to Development Application No 8.2024.113.1 for alterations and additions to a semi-detached dwelling including the provision of an on-site parking space, new front fence and landscaping at 170 Raglan Street, Mosman legally known as Lot 2 DP 445266 subject to the conditions of consent in Annexure A.

E Espinosa

Commissioner of the Court

Annexure A (229004, pdf)

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