Defterios v Woollahra Municipal Council

DATES OF HEARING: 27/03/2007 and 18/06/2007

APPLICANT Mr P. Tomasetti, barrister Instructed by D. Balog LEGAL REPRESENTATIVES:

RESPONDENT Mr S. Simington, solicitor of Lindsay Taylor Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11228 of 2006 Margaret Defterios v Woollahra Municipal Council

JUDGMENT 1 This is a Class 1 Appeal 11228 of 2006 between Margaret Defterios and Woollahra Council in regard to the refusal of a proposal for a car space and rear lane entry to a terrace house at 19 Broughton Street, Paddington.

2 After a preliminary finding on the first occasion the hearing was adjourned to enable amended drawings and notification. I adopt the transcript of the preliminary finding and incorporate it in the transcript of this judgment: Preliminary findings 3 This is in the form of an interim finding.

4 In this Appeal No 11228 of 2006, between Margaret Deftereos and Woollahra Municipal Council, I was told that the application had been amended just before the hearing to be as shown in exhibit A.

5 The application form said it was for a drive entry and carport of a rear lane at 19 Broughton Street, Paddington. The original plan in exhibit 3, page 7, showed not a carport but a drive entry of 230 millimetre wide masonry pillars and a transom for a roll-a-door and a part-paved rear courtyard with vegetation planter beds of about 600 millimetre wide down each side boundary for the length of the yard.

6 This was later modified to plans at exhibit 3, page 46 and 47, to have no planter beds and full paving to the backyard, but otherwise apparently similar to page 7.

7 The further amendment in exhibit A provided for retaining walls along each side boundary of the courtyard, and excavation of the whole courtyard to bring it closer to the level of the driveway entry.

8 Some small planter boxes measured about 400 millimetres wide are proposed on top of the 230 millimetre thick retaining walls, with timber panel fences above on the boundary.

9 The drive entry and roll-a-door, is now a panel-lift door between 230 millimetre piers. Above the door opening is a concrete planter trough measuring about 600 millimetres internally to provide for some vegetation to the laneway.

10 The applicant says that the design is a hybrid of the Paddington Development Control Plan garage design principles on pages 80 and 81 of the Control Plan, being most similar to the type called Laneway Garages with Roof Garden. That type requires one metre wide planting strips across the roof, on the lane boundary and down the side boundaries of the courtyard, plus masonry pillars, 470 millimetres wide to frame and hold the panel-lift door.

11 The aims and objectives of the Development Control Plan in relation to on-site vehicle parking are found, inter alia, in cl 5.2.6 which, if I can summarise it, "Seeks to avoid proliferation of rear lanes lined with high walls and garage doors, whilst providing on-site parking under certain conditions that relate to the heritage conservation values of Paddington, the amenity of neighbours, the provision of on-site useable private open space and soft landscaping, the retention of permeable surfaces that limit overloading of existing drains due to increased run-off caused by paved surfaces, and to retain character features of Paddington such as sandstone kerbs as are found in the laneway behind the subject property."

12 I note that during the hearing the applicant offered a modification to the proposal to re-use the stone kerb rather than replace it with concrete at the proposed driveway crossover.

13 There had been two objectors to the proposal as previously presented as in exhibit 3, pages 304 to 308, one being from the next-door neighbour at 17 Broughton Street and another from the Paddington Society. The neighbours specifically raised concern about the need for excavation and concern for its impacts on their property. Also, they expressed concern at the impact on the conservation qualities of Paddington and potential noise disturbance from vehicle use of the proposal and the lack of landscaping. The objectors did not appear to give evidence.

14 The respondent noted that the revised design had not been notified for public exhibition and must be. Rather than adjourn the hearing, the parties proceeded to the traffic engineer's evidence on the use of the three metre wide rear lane to access the site for a car and the planning evidence.

15 In dealing with the traffic evidence, it appears to me the crucial issue relates to guideline G9 of cl 5.2.6 of the Paddington Development Control Plan. It permits, with consent, vehicle access off laneways less than four metres wide if it can be demonstrated that turning circles in compliance with Australian Standard 2890.1 2004 can be achieved and the on-site parking satisfies guidelines G1, G6 and G7 of the same clause.

16 The evidence of Ms Ofra Shabtay, traffic engineer for the applicant, is less than satisfactory. She agreed in cross-examination that her car manoeuvring diagram in figure 1 does not show required manoeuvring clearances. It actually shows a car scraping on both the door pillars and the side boundary retaining walls. The plan fails to show the width of the laneway and the building opposite the site and, more critically, did not use any recognised computer software as required by the Australian Standard to show the swept path of the car.

17 She said in summary that the car was a B85 percentile size, so a smaller car could get onto the site and the applicant only wants a small car. Turning circles she produced in exhibit C were agreed in cross-examination to not reflect the true swept path of even the small car intended.

18 To his credit, Mr Tomkins, the council engineer, corroborated her evidence to the extent that he agreed a small car could access the site, but the council practice is to require a B85 percentile car to do so since that would be the expectation of any future owner. However, an examination of the guidelines G9 in the council's Development Control Plan were shown by the applicant to not require that only a B85 percentile car be able to access the site. It permits, with consent and subject to compliance with other issues, a smaller car to access the site from a narrow lane.

19 The applicant offered conditions of restriction on title of the land to limit size of the car to be parked on the site. It seems that technical compliance with the Australian Standard to get a small car on and off the site may be possible, although not yet demonstrated to me.

20 The other objectives and guidelines under cl 5.2.6 of the Development Control Plan, and the other relevant Local Environmental Plan and Development Control Plan controls raised in the issue, should not be determined until I have the benefit of any other objections following the re-notification of the amended plans.

21 Therefore I adjourn the proceedings to enable notification of the amended plans and set a timetable for that, and a date for the parties to attend call over for a date to resume. End of Preliminary Findings 22 Objections to the amended plan, tendered when the hearing resumed, were received and two letters of support.

23 Neighbours at 17 and 19 Broughton Street and the Paddington Society were concerned about: 1. Excavation beside their side yard boundaries; 2. Noise and fumes from the car using the space; 3. Lack of landscaping; 4. Loss of privacy due to the height of the fence and the see-through horizontal lathe style proposed; and 5. The panel lift door and the planter box above it is out of character with the heritage values of Paddington.

24 The letters from supporters of the proposal were not direct neighbours but did have drive accesses off the same laneway. They supported it due to: o convenience for parents with children, o convenience of carrying shopping baskets from car to house, o the high demand for on-street parking that could often cause residents to park a hundred metres or so from the house. o concern over security of the car if parked in the street and o safety for the driver and other occupants, especially late at night. Antisocial behaviour and assaults in nearby streets were alleged. 25 The applicant added to these reasons for the application by way of her age that increased the importance of these issues. The respondent's issues were: 1. The proposal is non-compliant with Paddington Development Control Plan because the vehicle entry and the parking of the vehicle as proposed will have a detrimental impact on the character of the laneway and traffic and pedestrian movements in the laneway. Particulars cll 5.2.6, 04, 010 and G1. Traffic width of laneway is 2.5 metres, inadequate sight distances, lack of appropriate interface. 2. Proposed entry will not provide an acceptable interface between the private and public domain as required by the development control plan. Particulars cll 5.2.6, 04 and G7. Non-compliance with the specific design principles in the Table to s 5.2.6 of the control plan for laneway garages with parapet roof forms in that the vehicle access opening is wider than 3.3 metres and cannot incorporate an element such as a pedestrian gate. 3. The proposal is non-compliant with the development control plan because the width of the lane adjacent to the rear of the site is less than four metres and it cannot be demonstrated that the on-site parking enables parking by the 85th percentile vehicle specified in the Australian and New Zealand Standard 2890.1 2004 and satisfies guidelines G1 and G7 in cl 5.2.6 of the development control plan. Particulars cl 5.2.6, 010 and G9. 4. The proposed access arrangements will not allow an 85th percentile vehicle as defined in the Australian and New Zealand Standard 2890.1 2004 to enter into and egress from the proposed car space. 5. Whether the plans for the proposal are acceptable owing to the lack of any specification of retaining structures to the excavated area with the boundaries of 17 and 19 Broughton Street. 6. Whether the proposal is in the public interest having regard to the inappropriate precedent likely to be replicated in the locality and the local government area more generally if the application is approved. 7. Whether the development can be approved under cl (5) of the Woollahra Environmental Plan 1995 having regard to consistency with the general aims and objectives with respect to heritage conservation areas and cl (2)(g)(ii) in particular. Particulars development control plan cl 5.2.6, 04, G1 and G7.

26 Planning evidence was heard from Mr Fotis for the council and Mr Lonergan for the applicant.

27 In the preliminary finding I determined that contrary to issue 3, the Paddington Development Control Plan does not prohibit car spaces for cars less than the 85th percentile size and no new evidence causes me to reverse that finding.

28 On the second occasion, I heard evidence for the applicant on the revised plans from Mr Logan, traffic consultant. In Exhibit H he demonstrated via an acceptable computer model under the Australian and New Zealand Standard 2890.1 2004 plus resulting drawings that a light car, being the 35th percentile size such as a Corolla, cannot access the site even with the modified drawings. The turning path showed that sized car could not obtain the required 300 millimetre clearance either side that allow for drivers of various skill levels and for variations in manoeuvring techniques. However Mr Logan had tested four other smaller cars, a Barina, a Jazz, a Yaris and a Getz that could access the site in accordance with the Australian and New Zealand Standard.

29 With this sized car the plan showed there would be ample space to provide landscaped area within the rear courtyard for trees, climbing vines and shrubs and the whole courtyard could have absorptive qualities by use of permeable paving on the car space area. Also with that small sized car there would be ample space, once parked, for a driver to alight clear of the vegetation.

30 This is a major improvement over the original scheme except that due to sandstone underlaying the rear yard, excavation would mean the depth of soil and drainage of any excavated garden area could be a concern. The applicant put that provision for drainage could be made a condition of consent. The respondent did not contest this.

31 The excavation, of concern to the neighbours, had previously been unquantified. It was thought by one neighbour to be 1.5 metres. The levels on the revised drawing showed that towards the driveway end, or the laneway end, there was little change in the levels except for some excavation to provide a suitable driveway gradient in from the lane. At the maximum, adjoining the actual dwellings, there was about 700 millimetres excavation for one neighbour and about one metre on the other. This could be retained by masonry walls positioned entirely on the subject land so that the neighbours would have minimal affectation. Also the lowering of the courtyard to facilitate the drive entry would bring anyone in the courtyard well below fence level and protect the neighbour's privacy better than existing.

32 The occasional starting or return of the car in a single house situation is not sufficient to cause noise or fume nuisance sufficient for refusal.

33 The Paddington Development Control Plan was also shown to be ambiguous in its provisions for garages or car space entries off rear laneways. The modified plans are very like a sketch on p 79 for "Laneway Garages with Garden Roof". On p 80 the Development Control Plan asks for a minimum 470 millimetre wide pillars for them but on a very similar "Laneway Garages with Parapet Roof Form", that to all intents and purposes is the same as the other, requires pillars of a maximum 470 millimetres in the errata, printed on p 79. The distinction between the two appears to be that the garage with the garden roof has, above the garage door, a planter trough which provides for greenery. The greenery would be visible from the site itself and, I suppose, from the neighbours and from the laneway, in order to soften the architectural form of the entry to the car space.

34 The development control plan does ask for a minimum one metre wide planter trough to the laneway and the proposal shows a 600 millimetre wide trough. No doubt the width of this trough can be increased to one metre by condition in order to provide for additional space for vegetation.

35 The side boundary planter beds, also required by that development control plan, are now shown on the plans and vary from 1.5 metre to 0.5 metre wide. With adequate vegetation as now specified on the plans they should be satisfactory in maintaining a green outlook for the neighbours and the subject property.

36 In regard to the neighbours' concerns about the horizontal lathe fencing being see-through sufficiently to reduce privacy, it seems to me that on the drawings, the trellis, as it might be called, is shown entirely within the subject property. This would enable the neighbours' privacy to be retained by a requirement of condition for a 1.8 metre paling boundary fence measured in height from the neighbours' at Nos 17 and 21 ground levels. It should be constructed in addition to the lattice in order to maintain the neighbours' privacy to current levels. Also the lathe, apart from being decorative compared to a paling fence, does provide a climbing ladder for the vegetation now proposed to add to the green effect.

37 In regard to the character of the laneway, it is true the proposal will change what now consists of dilapidated paling fences and that is not necessarily a fault given the DCP. 38 Although the provisions of the development control plan indicate no rear lane access from lanes under four metres width, and this lane is agreed at 3.05 metres by the engineers contrary to issue 1, the engineers agreed traffic in the laneway is so low in frequency that sight distance and safety of vehicles and pedestrians is reasonable and not sufficient for refusal. In any case a driver may choose to reverse in to give better sight lines for exit.

39 I note the development control plan for maximum door width to laneway for garages with roof gardens is annotated at 4.24 metres maximum width and the proposal is 4.015. It seems to me as a result issue 2 does not apply.

40 In determining this appeal it is really cl 5.2.6 and guidelines G6 and G7 that are determinative. It seems to me G1, the amenity of the neighbours, will be acceptable, the architectural character of the rear of the other terraces nearby in the lane is different to the drive entry, but it is sufficiently in keeping with the design principles espoused in the development control plan to be acceptable in the laneway.

41 There are no culturally significant structures in the laneway except the stone kerbing that the applicant has put forward a condition to retain. In G7 it is true the proposal does not include a pedestrian gate, nor timber nor transparent fencing, but it does comply with the rest of the requirements in G7, and, those requirements are proposed as alternatives.

42 A final consideration on precedent, I believe, is the condition the applicant offers, to put a restriction on title that only cars up to the 35th percentile size can be parked on site. Such a condition assures me that any similar applications could carry the same condition so that landscaping is retained by allowing only small cars that will not crush the vegetation or cause its removal due to inadequate clearances. By having small cars only, safe and easy manoeuvring of cars will be ensured that will not obstruct others in the laneway or cause noise and nuisance due to the number of manoeuvres needed and the condition would alert any future purchaser of such properties to the limitations of the site.

43 I do, however note that a 30 percentile car cannot access the site in accordance with the Australian and New Zealand Standard so I propose to limit the size of the car to 3.845 metres by 1.675 metres of the test car in Exhibit H and for more abundant caution to make the restriction on title a deferred commencement condition to be carried out prior to the activation of the consent.

44 Therefore the Orders of the Court are 1. The appeal is upheld.

2. Deferred commencement consent is granted to the excavation, retaining wall, fences, landscaping, paving, stair, entry drive and portal to a car space at No. 19 Broughton Street, Paddington all as shown on Drawing Nos 5. 6. 2007D Sheets 1 and 2 by Cracknell Lonergan all as amended by and built in compliance with the conditions in Annexure A hereto.

3. The exhibits are returned to the parties except Exhibits F, G, J and 7.

      K G Hoffman
      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.