Deguara v Waverley Council Coop v Waverley Council [2012] NSWLEC 1305 | Case summary

Land and Environment Court (NSW)|2012-10-23

Judgment 1COMMISSIONER: These are two separate but related appeals pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application Nos. DA-592/2011 and DA-57/2012 (the proposals) by Waverley Council (the Council) to construct a hardstand parking area in front of each dwelling, at 63 and 65 Anglesea Street, Bondi (the sites). 2Because the applications were for similar hardstand parking areas in the front setback of a pair of semi-detached dwellings, the two appeals were heard concurrently. 3The appeals were subject to mandatory conciliation on 23 October 2012, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. As no agreement was reached during the conciliation phase, the conciliation conference was terminated pursuant to s34AA(2)(b) and the proceedings dealt with forthwith pursuant to s 34AA(2)(b)(i). The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.

Issues 4The Council's only contention in these matters is that the length of the hard stand area, 4.53 m (63 Anglesea Street) and 4.62m (65 Anglesea Street), does not comply with either AS/NZS 2890.1:2004, which requires a minimum car space length of 5.4 m or Waverley Development Control Plan 2010, Section D1, sub-clause 5.7.4, which requires a minimum car space length of 5.5 m and consequently, a vehicle parked on the hardstand area may overhang the property boundary and obstruct the footpath. 5The applicants dispute two identical (without prejudice) conditions of consent for each appeal, as follows (quoted from the conditions for 63 Anglesea Street, Bondi): 2A. Concurrent works to adjoining semi-detached dwelling Pursuant to section 80A(1)(f) of the Environmental Planning and Assessment Act 1979, the approved works shall be carried out concurrently with the approved works for 65 Anglesea Street, Bondi authorised by the granting of development consent to DA-592/2011 in Land and Environment Court Proceedings No. 10833 of 2012. 2B. Concurrent works to adjoining semi-detached dwelling Prior to the issue of any Occupation Certificate, the Principal Certifying Authority shall be satisfied that the approved works authorised by the granting of development consent to DA-592/2011 in Land and Environment Court Proceedings No. 10833 of 2012 in relation to 65 Anglesea Street, Bondi have been completed.

The sites and their context 6The sites are located on the western side of Anglesea Street and contain a pair of two storey, semi-detached dwellings, each with a front verandah. 7There are a number of examples of hard stands and carports in the front setback of dwellings on both the eastern and western side of this portion of Anglesea Street. The majority of the existing hardstands and carports are undersized and a number of verandahs have been partially removed to provide car access up to the façade of the dwelling.

Background and the proposal 8The proposal is to demolish the front verandah, retaining the stair and landing outside the front door and the verandah roof and to construct a cross over and permeable hardstand area, with associated landscaping, in front of each dwelling.

Planning Framework 9The sites are zoned 2(a) Residential - Low Density, pursuant to Waverley Local Environment Plan 1996 (LEP 1996) and the proposals are permissible with consent. 10The general aims of LEP 1996, at clause 2, includes: (c) to improve the amenity, safety and environmental quality of the built and natural environment 11The specific aims of LEP 1996, at clause 3, in relation to traffic and transport, sub-clause 11, include: (b) to encourage land use patterns which reduce the need to travel by motor vehicle and increase the use of public transport, bicycles and walking to reduce the adverse impact of travel on the environment 12 The relevant zone objective of LEP 1996 for Zone 2(a) Residential - Low Density is: (b) to maintain and improve the amenity and existing characteristics of localities predominately characterised by dwelling-houses 13Subclause (2) of clause 10 is a threshold clause and requires that consent only be granted if the consent authority is satisfied that the development meets one or more of the zone objectives. 14The proposal is subject to the provisions of Waverley Development Control Plan 2010 (DCP 2010). Section D1 of DCP 2010, Dwelling House and Dual Occupancy Development, includes at clause 1.6 Generic Controls, the following: Sections 5.1 to 5.10 prescribe the objectives, performance criteria, strategies and controls for: building height; building size and bulk; setbacks; streetscape and visual impact; fences; privacy and noise control; vehicular access and parking; landscaped open space; and laneway development and ancillary buildings. These controls apply to all dwellings and dual occupancy development. 15Clause 5.7 Vehicular Access and Parking, includes the following relevant objectives: (a) Ensure that the design and size of off-street carparking facilities does not unreasonably detract from the appearance and quality of the dwelling-house or streetscape (b) Maximise pedestrian and vehicular safety 16Clause 5.7 includes the following statement: If the proposed off-street parking facilities or associated works will unreasonably detract from the appearance of the dwelling, streetscape or landscape, or from the heritage quality, or adversely impact on the pedestrian environment, or reduce the availability of on street car parking, a zero parking requirement may be imposed. Note: The characteristics of some sites may mean that car parking should not be provided on site. 17Sub-clause 5.7.2 Garages and carports are designed not to detract from the architectural integrity of the dwelling, includes the following control: No part of the street façade of a building is to be altered or demolished primarily to accommodate car accommodation 18Sub-clause 5.7.4 Design of off-street carparking spaces and driveways allows efficient and easy access and does not endanger the safety of pedestrians, includes the following controls: Garages, carports and hardstand areas have minimum internal dimensions of 5.5m x 2.5m per vehicle Access ways and driveways enable vehicles (the 85 percentile vehicle as identified by the RTA Guidelines for Traffic Generating Development) to enter the parking space in a single movement, and to leave the space in a maximum of two turning movements. 19Clause 5.8 Landscaped open space, includes the following objectives: (a) Enhance the amenity of the site, streetscape, and surrounding neighbourhood (d) Maximise outdoor space to allow for soft landscaping including tree planting and maintenance of existing vegetation 20Sub-clause 5.8.2 Landscaping contributes to streetscape character, with significant vegetation retained, includes the following controls: Minimum of 50% of the area between the front of the building and the street alignment should be landscaped Minimum of 50% of the landscaping provided at the front of the site is to be soft landscaping Existing significant vegetation is retained unless this is unfeasible 21Section I1 of DCP 2010, Land Use and Transport, includes at 5.0 Urban Design, Streetscape and Heritage Conservation, the following statement: The LGA has older established areas, which were designed and built before the widespread use of cars. The retrospective provision of off-street carparking has caused significant impacts on streetscapes and has impacted upon the amenity of pedestrians and cyclists. 22Clause 5.1 Design, includes the following: (a) Pedestrian and cyclist amenity on streets is maintained or improved (b) Existing on-street parking supply is protected by minimising impacts of additional vehicular kerb crossings 23Clause 5.2 Parking and Access, includes the following: (a) All car accommodation is to be located behind the front building line (b) No part of a building is to be altered or demolished to primarily provide car parking except where topography or appropriate building design allows 24Clause 5.3 New Vehicle Crossings, includes the following: (b) Where there is no car parking on an original lot and off-street parking is not characteristic, vehicular access from the street is not permitted.

Expert evidence 25Expert planning evidence was provided by Ms Jennie Askin on behalf of the applicant and Ms Beth Matlawski on behalf of the Council. Expert traffic and parking evidence was provided by Mr Craig Hazell on behalf of the applicant and Mr Geoff Garnsey on behalf of the Council.

Planning 26The planning experts agree that parking in front of the building line is characteristic in this portion of Anglesea Street, despite sub-clause 5.2(a), Section I1 of DCP 2010 requiring car accommodation to be located behind the front building line. 27The planning experts agree that the removal of the verandah floor to extend the hardstand to the façade of the dwellings is acceptable as the proposed alteration is minimal and it will not detract from the appearance of the dwellings or the streetscape. 28The planning experts agreed to amend the proposal to increase the area of soft landscaping to comply with the requirements of DCP 2010 and the amended plans were tendered as exhibit C. The Council agrees that the amendments are minor. 29According to Ms Matlawski, the proposal would be acceptable if the handstand area was 5.5 m in length, to comply with the control of sub-clause 5.7.4, Section D1, DCP 2010. In her opinion, if the proposals are approved, they should be constructed together to retain the symmetry of the semi-detached dwellings. 30According to Ms Askin, it is not necessary for one hardstand to be dependent on the construction of the other and each proposal is acceptable on its own merits.

Traffic and parking 31The traffic and parking experts agree on the following:

A 5.4 m car space length (AS/NZS 2890.1:2004 Part 1 - Off Street Car Parking [AS]) caters for the B85 design vehicle (larger than or equal to 85% of the passenger and light commercial vehicles), including adequate clearances around the car;
There is no parking permitted on the western side of Anglesea Street and therefore the proposals do not remove parking places from the street. 32Mr Garnsey notes that the AS includes, in Section 2.4.1(a)(iii), provision in certain circumstances, for car spaces to be smaller than 5.4 m to allow for the parking of small cars. The B35 car (35th percentile car of the Australian fleet) requires a car space to be 5 m. 33Mr Hazell notes that the B35 car has a maximum length of 4.45 m and the 5 m car space is required to provide adequate clearance at either end of the car in a car park. As the proposed car spaces are for dwellings and will be used by a driver familiar with the constraints of the car space, a clearance of 100 mm between the façade of the dwelling and the car would be sufficient. 34Mr Garnsey agrees that the proposed car spaces are suitable for the parking of a car up to 4.5 m in length, without any part of that vehicle encroaching beyond the property boundary. 35According to Mr Hazell, there are no sight line obstructions between car drivers and pedestrians.

Submissions 36The applicant submitted (now Senior) Commissioner Moore's decision in Icon Building Services v Waverley Council [2007] NSWLEC 205 (Icon decision) which approved a 4.4 m long hardstand parking space in front of a semi-detached dwelling at 29 Anglesea Street, Bondi. 37The Council submits that the Icon decision did not include the demolition of the front verandah of the semi-detached dwelling and that the existing front verandah is 150-200 mm higher than the hardstand, permitting the nose of a car longer than 4.4 m to extend over the verandah when parked. 38The applicant proposes and Council agree to (without prejudice) conditions that would restrict the length of any vehicle parked on the sites to being a maximum length of 4.4 m (63 Anglesea Street) and 4.5 m (65 Anglesea Street), to allow 100 mm gap between the car and façade of the dwelling and that a parked car will not overhang the boundary. The Council submits that such a condition is difficult to enforce. 39Ms Hill submits that proposed conditions 2A and 2B are onerous and unnecessarily restrictive.

Findings 40Sub-clause (2) of clause 10 of LEP 1996 provides a threshold test. If the development is not consistent with the relevant zone objectives, the application must be refused. If consistent, the merits of the proposal can be examined and approval granted if the merits are acceptable. Conversely, if the merits are not acceptable, the application should be refused. 41The decision of Pearlman CJ in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 (Schaffer) considered the meaning of consistent in relation to zone objectives. In Schaffer, her Honour expressed the following opinion (par 27): The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible. 42The relevant objective of the 2(a) Residential Zone - Low Density is to maintain and improve the amenity and existing character of the residential area. 43I am satisfied that the proposals are consistent with the relevant zone objective, pursuant to clause 10 of LEP 1996, for the following reasons:

The agreed position of the planners is that parking in front of the building line is characteristic in this portion of Anglesea Street;
The proposals will result in two additional off-street car parking spaces, which will increase the availability of on-street car parking for other persons;
The proposals will increase the amenity of the occupants of 63 and 65 Anglesea Street by providing them with a convenient parking place; and
The proposed landscaping will enhance the streetscape. 44The traffic and parking experts agree that a vehicle up to 4.5 m in length is suitable for the proposed car spaces without encroaching on the footpath. The parking and traffic experts agree that the 35th percentile car is 4.45 m long, which means that approximately a third of the Australian fleet of cars are suitable for parking in the proposed car spaces. 45I agree with Mr Hazell that the driver using each car space will be familiar with the constraints of the car space and a tighter margin around the car is reasonable for a dwelling. 46I am satisfied that imposing a condition of consent limiting the length of any vehicle that can be parked on the hardstands to 4.4 m (63 Anglesea Street) and 4.5 m (65 Anglesea Street), which includes a 100 mm clearance between the dwelling and the car, addresses Council's concern regarding the encroachment of a vehicle into the public domain. 47I accept the agreement of the planning experts that the removal of the verandah floor to extend the hardstand to the façade of the dwellings is acceptable as the proposed alteration is minimal and it will not detract from the appearance of the dwellings or the streetscape. 48I am satisfied that there will not be any impact on the streetscape of Anglesea Street if the hardstands are not constructed concurrently. The pair of semi-detached dwellings is modest and unembellished and imposing a requirement that the development of the pair be symmetrical is onerous and unnecessary. The streetscape of Anglesea Street is undistinguished and contains an eclectic mix of parking within front setbacks. I therefore find that proposed conditions 2A and 2B should be deleted.

Conclusion 49I have given significant weight in my decision to the agreement by the planners that parking in front of the building line is characteristic in this portion of Anglesea Street and a number of those existing spaces are undersized. 50I find that the proposals are in keeping with the existing character of Anglesea Street and that the conditions imposed to limit the length of the vehicle that can be parked on the site will ensure that the vehicle is accommodated within front setback.

Orders 51The orders of the Court are: For appeal 10833 of 2012:

The appeal is upheld.
Development Application No. DA-592/2011 for a hardstand parking area in front of a semi-detached dwelling at 65 Anglesea Street, Bondi is approved subject to the conditions in Annexure "A". For appeal 10835 of 2012:
The appeal is upheld.
Development Application No. DA-57/2012 for a hardstand parking area in front of a semi-detached dwelling at 63 Anglesea Street, Bondi is approved subject to the conditions in Annexure "A".
The exhibits, other than exhibits 1, 2 and C, are returned.

Susan O'Neill Commissioner of the Court

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. Decision last updated: 02 November 2012

Deguara v Waverley Council Coop v Waverley Council

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