Emdur v Waverley Council

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167

APPLICANT Ms S. Hill, solicitor of Susan Hill & Associates LEGAL REPRESENTATIVES:

RESPONDENT Mr S. Patterson, solicitor of Wilshire Webb Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

This determination was given extemporaneously and it has been edited prior to publication

JUDGMENT 1 This matter was conducted at an on-site hearing on 12 March 2009. The appeal is a s 96 appeal under the Environmental Planning and Assessment Act, 1979, to modify a development consent. At the on-site hearing I was provided with the opportunity to view the house, the adjoining properties as well as the other houses along Dudley Street, the location of the subject site.

2 The applicant, Ms Emdur of No. 28 Dudley Street lives in an older style dwelling which, from its appearance, was erected in the period prior to the Second World War. The house was constructed before cars were anticipated for such common use as they are today in the area. Consequently, the house has no provision for on-site parking unlike more modern properties.

3 The desire for on-site car parking is reflected in the numerous alterations to the houses in Dudley Street that have a mixture of on-street garages, hard stands for cars and car ports beyond the front line of the building.

4 Mr Moody, the applicant's planning expert and Ms Flannery, the respondent's planning expert, calculated the percentage of properties altered as such in Dudley Street during the course of the on-site hearing. It was agreed between the experts that 52 % of the properties along Dudley Street have been altered so that they now have a carport, a garage or a hard stand to the front line of their building. 5 The owner of the subject site now seeks consent of the Court for a revised version of the proposed car parking space in the property's front setback. The original application, DA 421/2007, was for a variety of alterations and additions to the existing residence, one of which included the approval of a hard stand area for parking. The various other items were approved but the council refused the component requesting modification of the driveway for a car space and work to the front façade.

6 The revised version of the application involves the demolition of the approximately 1.8 m high solid front fence, removal of part of the veranda of the front façade and the insertion into the front yard of landscape planting in line with council's controls.

7 The council raised a number of objections to the proposal. In the main, these objections come from the provisions in the Waverley Development Control Plan and the parts that deal with dwelling house development, Part D1, and land use and transport, Part I1.

8 Mr Patterson articulated the essence of the principal issues in contention for the applicant as follows: (a) the proposal results in interference with the building fabric; (b) the provision of a parking space in front of the building line; and (c) the provision of an undersized lot for car parking.

I note that there was other items referred to but Mr Patterson for the council acknowledged the three aforementioned issues were the threshold matters in this case. 9 Before I turn to the merits of the application, it is appropriate that the details of the proposal be explained. The existing space at the front of 28 Dudley Street is too small to park a car without some alterations to the front veranda in order to accommodate a small vehicle. The revised proposal will result in the removal of approximately 3 m of the veranda's landing, which is approximately 300 mm in height.

10 The current fence of the property, which is approximately 1.8 m high, will be removed and the current front yard will be altered so as to accommodate soft landscape planting as per the requirements of the DCP, cl 5.8.2 (D1). The removal of the landing of the veranda and the current fence will create a space of 5 m in length for vehicle parking with a width of approximately 3.5 m. The DCP control 5.7.4 (D1) states that: Garages, carports and hardstand areas are to have a minimum internal dimensions of 5.5 metres by 2.5 metres per vehicle.

Therefore the length requirement of this development proposal does not conform to the DCP controls. I will address this issue later on in my findings. 11 In making my decision I am obliged to have regard to the relevant objectives as set out in the council's DCP. I have regard to these objectives in the context of the Court of Appeal's decision in Zhang v Canterbury City Council [2001] NSWCA 167 dated 14 June 2001, in which it was determined that the provisions of the DCP are to be considered as a fundamental element or a focal point of the decision-making process. The provisions of the DCP are directly pertinent to the application and are entitled to significant weight in my decision-making process but are not in themselves determinative. If the proposal does not meet all of the development control plan requirements I may still grant consent after a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79 of the Environmental Planning Assessment Act if there are reasons to render it acceptable.

12 The objectives of the DCP with respect to single dwellings for vehicle access and parking are provided in cl 5.7(D1). They are as follows: (a) To ensure that the design and size of off street car parking faculties does not unreasonably detract from the appearance and quality of the dwelling house or streetscape; (b) To maximise pedestrian vehicle safety; (c) To minimise the loss of on-street car parking; and (d) To minimise the loss of views from the public domain. If the proposed off street parking facilities 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. Findings and evidence 13 I will deal with each of the council's primary objections separately. The controls relating to objection (a) are those in 5.7.1 and 5.7.2 (D1) of the DCP. The essence of the council's objections here is that the proposal results in interference with the building fabric that is contrary to the components of 5.7.1 and 5.7.2 of the DCP. The DCP states, and I paraphrase; no part of a building including the street façade is to be altered to accommodate car parking except where topography or appropriate building designs permit this to occur.

14 As noted, the development application will remove some of the veranda's landing. The council's town planning expert, Ms Flannery, acknowledged that the veranda is not visible from the road currently. Ms Flannery noted that a lower front fence would be a better outcome so that the house is more visible from the streetscape. However, she contended that the removal of the fence in such a situation with the implementation of a car space would eliminate any benefit that would accrue from the removal of that fence.

15 Mr Moody, town planner for the applicant, argued that the DA would improve the streetscape because: (1) the impact of the loss of 300 millimetres of the veranda would be a minor effect on the total façade; (2) the proposal will increase the amount of soft planting compared to the status quo where there is no significant landscaping on the internal front yard of the area of the property; (3) there would be a significant increase in the visibility of the front façade of the property. Mr Moody's view was that the collective effect of these alterations would outweigh the negative impacts arising from the loss of the veranda, which was considered small, and of limited visibility. 16 The relevant objectives of the Waverley Local Environmental Plan 1996 for this location, zone No. 2(b) residential medium density, item 1 (b) states: To maintain and improve the amenity and existing characteristics of the locality. 17 In considering the LEP and the DCP controls it would appear to me that the removal of the front fence as part of the proposal would not detract from the appearance and quality of the dwelling house or the characteristics of the present streetscape. Indeed, quite to the contrary. The appearance will be improved by opening up the property such that the building's attractive front façade can be seen in its entirety. I consider this aspect would be equal or greater than the objective in the LEP as stated above.

18 I note that the impact of removing the veranda landing would be very different as to that which has occurred or may occur on the opposite side of the street. Along the opposite side of the street, most of the verandas are more elevated and larger, and their removal for a development application such as is requested here, could not be supported, in the opinion of Mr Moody. I accept the opinions of Mr Moody including those that stated that the current front fence is an intrusive element in the landscape and that its removal will open up and improve the use of the house compared to the present.

19 With respect of the rest of the street, the proposal would not be incongruent given that more than 50 % of the properties have such on-street parking arrangements. Therefore, as per the DCP objectives, I find that the proposal will not unreasonably detract from the appearance and quality of the dwelling house or streetscape.

20 With respect to the council's second primary objection (b) that the car space will be at the front of the building (cl 5.7.3 (D1) of the DCP), it is clear that the proposal is contrary to this element of the controls. The strategy for this control is to prevent garages, including carports, hard stands and related structures, from dominating the landscape. Given that 52 % of the street houses already have these features as part of their property I therefore do not see that this proposal will further or reasonably detract from the streetscape. Indeed, it will be in keeping with the broader vista of the street. The proposal will also, for the reasons mentioned above, improve the visual amenity of the house through the removal of the 1.8 m solid wall.

21 The third item identified by the council as a principal reason for objection (c), the provision of an undersized lot for car parking, also has relevance with respect to the effects of the proposal for the provision of on-street parking.

22 The council contended that the length for parking with the alterations to No. 28 Dudley Street would permit a space that was too small for cars and was also contrary to the development controls, cl 5.7.4(D1), which requires a minimum length of 5.5 m. The applicant demonstrated that the owner's vehicle could park in the space that it intended to create by placing it in a neighbour's property, which was of the same form and size as the subject property's front yard. This yard was constructed with a hardstand area for cars with closing gates at the street boundary.

23 There was much and vigorous debate about what constituted a small car and whether or not the council's DCP was applicable in this case. The discussion was redundant for the following reasons.

24 The current road space for parking in front of No. 28 Dudley Street is an agreed 14.4 m. The council contended that this length fit support three cars, some of which would have to be small cars. The council also agreed that a small car space was as defined in Mr Moody's position paper, Exhibit D, which was an extract from the Australian Standards for Parking Spaces. This extract referred to angle parking spaces and although different from the parallel parking method on Dudley Street, it was accepted that a 5 m length was that used for small cars.

25 The planning experts also measured metered spots on similar adjoining streets to understand the default size of space for parking used by the council. These measurements also returned a length of 5 m. The council argued that the proposal would result in a loss of a single car space in Dudley Street and that the lost space would be taken over by a private parking space (on the subject site). However, the council's views are somewhat contradictory because they argued: (1) that the provision of a 5 m space at No. 28 Dudley Street was too small for a car; and (2) the 14.4 m space in front of the dwelling was suitable for three cars. 26 It seems to me that the council cannot have it both ways. If 14.4 m is sufficient for three cars then so must a 5 m space be suitable for one car. If a 5 m space is suitable for car parking as per the council's metered spaces on similar neighbouring streets, then logic follows that 14.4 m is not suitable for three spaces except under certain unusual circumstances. These unusual circumstances may include for example, two cars the size of a Mini (~3.6 m in length), plus a standard small car as per the Australian Standard of 5 m. This would give a total length of 12.2 m plus space for manoeuvring.

27 Evidence of variations to the DCP control for the length requirement of 5.5 m for parking were provided during the on-site hearing by measurement of neighbouring properties in Dudley Street. Additional written evidence for the approval of off street parking were provided in folio 47-49 of Exhibit 1 and also in the Statement of Environmental Effects, submitted as part of the s 96 appeal. With respect to the latter evidence, I have given it little weight because the details of the various development applications were incomplete. However, I note, as was agreed by the parties, there were a mixture of proposals with requests for garages, carports or hard stands akin to this s 96 appeal, which were both approved and refused.

28 After considering the evidence before me, I find it reasonable to use 5 m as a suitable car length to apply for the calculation of a car space. The council uses it for metered spaces and the applicant also wishes to use it for their proposal. In the absence of any other meaningful evidence to contradict this, the application of 5 m for a car space means that the current area at the street front of the subject site of 14.4 m is really only suitable for two vehicles. The remaining space could only realistically be used for motorbikes or other very small vehicles or trailers from time to time. This was shown to be the case at the on site hearing when the Commissioner parked his motorbike at the 14.4 m space along side two cars.

29 Therefore, the proposal including a cross-over entry for the subject site will result in the retention of a 9.4 m of car space at the street front. This space will be suitable for two vehicles because the front and rear of the space will be open, allowing for manoeuvring.

30 Therefore, on this basis, the proposal is not contrary to the objectives of cl 5.7(c), Vehicle Access and Parking, which are to minimise the loss of on-street car parking. Indeed, the addition of the single off-street space could, in some contexts, which is vehicle length dependent, be viewed as an additional net space since the owner will no longer need to park on the street.

31 With respect to the objectives of cl 5.7, Pedestrian Safety, the applicant agreed to a condition that would mean the driveway would be fenced whenever a car is parked in the drive. This will minimise any hangover of a vehicle into the footpath and interference with foot traffic. 32 Other matters raised by the council included items in I1 of the DCP, which is Land use and Transport. This part of the DCP is designed to encourage the use of public transport and reduce private vehicle use. However, I note that single dwelling houses in this area have a provision of parking from zero to one, which is detailed in cl 3.2.1 of I1 of the DCP. In this regard, the proposal is not contrary to the DCP and, as such, it is not contrary to the strategic framework cl 1.1 of the DCP's chapter on Land use and Transport.

33 There is no evidence before me that the proposal will adversely affect the street's visual amenity, impact upon pedestrian or vehicular safety, or result in the loss of on-street parking spaces. The proposal therefore, meets the objectives of cl 5.7 of DCP 2006.

34 The proposal is for a hardstand and soft landscaping, minor amendments to the façade and removal of the wall. Although there will be some alterations to the house façade and the car space is to the front line of the building, the overall benefits of the proposal outweigh any negative aspects. The benefits include the removal of the extant 1.8 m solid front wall, the new soft landscape planting, the no net loss of parking spaces and better viewing of the house façade from the streetscape. Collectively, these outcomes mean that the objectives of the controls of 5.7 of the DCP are met. Consequently, I accept Mr Moody's evidence that the collective effect of the alterations outweigh any possible negative impacts arising from the proposal.

35 Therefore, after the applicant has served revised plans the orders of the Court will be: 1. That the appeal 11276 of 2008 to modify the development consent DA 421/2007 is upheld. 2. The revised and served the plans need to encompass specific particulars on the following: (a) details of the gate to the hard stand area; (b) details of the side wall adjoining No. 26 and its intended height; (c) details of the footpath cross-over; and The revised and final plans will be retained on the court file.

      Dr Mark Patrick Taylor
      Commissioner of the Court

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