Freer v Waverley Council

The traffic g enerat i on r ate o f a s i n gl e dwelling is particularly low. The RTA guidelines suggest nine (9 ) DV T s p e r day for a dwelling and 0.89 peak trips. Also, resid en ts are like l y to ente r and leave the parking space with a high degree of care . My op i nion is th at there w ou l d no t be any unreasonable risk to pedestrians or cyclists as a result of the proposed crossing." 19 In response to the proposition that "the proposed development should be refused as the proposed hard stand is inconsistent with clause 5.7 of Part D1 of WDCP and clauses 5.2 and 5.2 of Part I1 of WDCP", Mr Shiels states that: " Clauses 5.1, 5.2 and 5.7 of the Waverley DCP relate to the design of new developments. These clauses have little relevance to the current proposal, and those of some relevance are identified in Council's Particulars ." 20 In response to the proposition that "the proposal does not satisfy objectives (a), (b) and (c) of cl.7 - Vehicular Access and Parking of Part D1 and the design considerations set out in cl. 5.1 of Part I1 in that: … the proposal unreasonably detracts from the appearance and quality of the dwelling house and the streetscape", Mr Shiels states: "....T he Court will observe that the appearance of the dwell i ng will remain la rge l y unchanged . ' Two (2 ) pe r meable wheel strips wil l be located in the f ront landscaped area and the fence w i ll be r econs tr uc t ed as a gate . The elevat i on prepa re d as part of t h e application l odged with Coun c i l in d icates to the Court that a v e h icle may be seen t hrough gap s in the proposed f ence. In my opin i on , th i s d oes not detract f rom the appea r ance o f the dwe l ling or the st r eetsc a pe." 21 In response to the proposition that: "the proposal results in the loss of one full size on-street parking space for the gain of one private car", Mr Shiels states that: " As indicated, the distance from the No Standing sign to the adjoining driveway is approximately 21.6m. T he Australian Standards recommended length for on-street car parking space varies between 5.4m (for end spaces) and between 6.0m and 6.6m, which provides for a total of three (3 ) car parking spaces in accordance with the Australian Standards.

Council controls require only that loss of on-street parking is minimised. lt is not required to be maintained. The net result will be that one on-street space is lost and one space is gained . The space lost being a space which is used by the residents. So the end result is , in practical t erms is the same number of spaces. There will still be the opportunity to provide three (3) car parking spaces on· street and one (1) space on site . To improve the car parking for the two (2) eastern on-street car parking spaces, the driveway crossing could be moved 400mm to the west. This would allow for two (2) 5.0m spaces on-street with no impediment to manoeuvring from one direction (see Annexure B). This would still allow for safe manoeuvring into and out of the proposed on-site parking space . I do not consider this to be necessary but it i s an option wh i ch is available to the Court . " 22 In response to the proposition that "the proposed hard stand is not located behind the front building line" and.... the proposal results in further concreting of Council land", Mr Shiels states that: "The proposed hard stand will barely be visib l e from the street, particularly, when the gate is closed. The front area is grassed and permeab l e strips are proposed .

The proposed driveway does resu l t in additional concreting of the Council verge which will be paid for by the Applicant. I t does not result in the removal of any trees or landscaping. It is consistent with the streetscape and a common element in an urban area.

The Applicant is willing to grass the two c oncrete strips which are located on the verge outside No. 346 Birrell Street (nex t door). They are currently serving no purpose and if that offer is acceptable to the Council there will not be any net increase of concreting of Counc i l land ." 23 In response to the proposition that "the proposal does not comply with the strategies and controls set out in cl. 5.7.2 and 5.7.4 of Part D1 in that … the proposal provides for the partial conversion of an existing front fence and part of the dwelling for a parking space with dimensions of 2.59m in width x 5.52m in length", Mr Shiels states that: " The modification to the dwelling and/or the verandah was previously approved by Council. The space provided does have dimensions of 2 . 59m x 5.52m and it is proposed to retain the sof t landscaping. The proposal conforms to the Australian Standard and, as stated, the modified front verandah has been previously app r oved by Council. The fact of the matter is that the verandah has been modified with Council approval. There will not be a need for any overhang on Council's nature strip and footpath ." 24 In response to the proposition that "the minimum dimensions are based on Australian Standards. An 85 percentile vehicle has a length of 4.910m and a width of 1.870m. The Australian Standard requires a parking space to be 5.5m to allow for the safe passage around tow bars and the safe opening of rear hatched/boots etc, and a passing space for a person at either the front or the rear of the car", Mr Shiels states that: " This Particular has correctly identified the Australian Standard. The Particular appears to be suggesting that the Standard is inadequate to cater for a vehicle parking and shopping being removed from the boot or doors. My opinion is that the space would be more than adequate to meet the 85 percentile vehicle. As important, many vehicles are much less than the 85 percentile vehicle, which includes the owners' vehicle. The proposal satisfies the Australian Standard and does not need to intrude on Council space ."

25 The initial application to Council was for a "new single hard stand parking space". This design was modified to be "the construction of two (2) permeable wheel strips". The Applicant was informed and acknowledges and accepts this change. Expert's Summary 26 Mr Shiels summarised his evidence in the following way. The Applicant seeks to provide permeable wheel strips, in the grassed area, in front of the existing dwelling. Upon completion of the works the residue front yard will be retained as soft landscaping. 27 The existing approved front fence will be reconstructed in the form of a timber sliding gate, which will present a similar appearance to the existing fence. 28 The only real issue for consideration is that related to the "building line". It is impossible to comply with Council Code in this matter. 29 Council's WDCP 2006 at 1.4 states in part: "The development controls may not normally be varied. However, if an applicant is able to clearly demonstrate that a particular control is unreasonable or unnecessary in the circumstances of the case, Council may consider relaxing the controls." 30 Council's WDCP 2006 at 5.7.4 identifies under the heading "Strategy" that " Design of off-street car-parking spaces and driveways allows efficient and easy access and does not endanger the safety of pedestrians ." 31 The corresponding "Control" states: "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. Driveways are at least 3m wide and have an internal radius of four metres at the point where there is a change of direction" 32 A plan prepared by Mr Shiels (Exhibit A) indicates that the space available in the front yard for parking measures 5.52m by 2.59m. The plan also records that the proposed driveway between the street alignment and the kerb is to be 3.0m wide. 33 Mr Shiels, in his capacity as a traffic expert, states that he has researched the history of "accidents involving either pedestrians or cyclists in the Waverley local government area". He reported that no accidents are recorded in either field. He also reported that 84% of all vehicle types are below Australian Standard in respect of the length of the vehicle. 34 He further submits that Council should have no concern about the footpath vehicle crossing as concrete crossings are typical in the area and do not detract from the landscape. As to questions of safety when reversing out of the site, Mr Shiels states that the current approved front fence will be converted into a gate with openings between the timber slats to enable the driver to see pedestrians. 35 Mr Shiels is of the view that, in this matter, he is able to demonstrate that the control in respect of the "building line" is unreasonable or unnecessary in the circumstances and Council ought to have relaxed the control and so permitted the applicant's submission that each case should be considered on its merits. 36 Council expressed concern that the proposal would result in an undesirable loss of on-street parking capacity within Birrell Street for the exclusive benefit of one property. Mr Shiels states that the loss of on-street parking is minimal. The net result is that one on-street space is lost and one on-site space is gained. His diagram indicates that four (4) spaces will be available in Birrell Street but these spaces will be slightly below the Australian Standard. Findings 37 Mr Shiels was the only expert to give evidence in this case 38 While the Respondent initially objected to a "hardstand" area in the front yard for parking, the parties acknowledge that the modification to provide permeable wheel strips with soft landscaping is acceptable. 39 While the Respondent objected to an additional driveway crossing as it does not maximize pedestrian and vehicular safety, Mr Shiels was able to demonstrate that the modification of the front fence to a gate, with open slats, would allow the driver to have a view of the footpath and road thus providing for pedestrian and vehicular safety. He was also able to demonstrate that the proposal would not result in a net loss of on-street parking spaces. 40 I agree with the above expert opinion of Mr Shiels. 41 I also agree with Mr Shield that the only real issue for consideration is that related to the "building line". 42 I am reminded that the decision-maker must take into account all relevant considerations. These are matters pursuant to Section 79C(1) of the Environmental Planning and Assessment Act 1979 together with any development control plan that applies to the land to which the development application relates. 43 The DCP has to be considered as a "fundamental element in" or a "focal point" of the decision-making process: Zang v Canterbury City Council [2001] NSWCA 167. 44 The subject land is zoned Residential 2(a) under the DCP. Dwelling houses come under Part D1 and cl 1.4 sets out certain controls for dwelling houses: " The development controls may not normally be varied. However, if an applicant is able to clearly demonstrate that a particular control is unreasonable or unnecessary in the circumstances of the case, Council may consider relaxing the control. Conversely, having regard to the physical characteristics of the site and the nature and proximity of adjoining and nearby development, Council may require a more restrictive control so as to minimise or eliminate any likely negative impacts ." 45 I have considered the evidence and the need to focus on the fundamental elements of the DCP. 46 I have read all the nominated cases. This matter may be distinguished from others in that it does not contemplate changes to the dwelling. Other decisions have supported the principle that if a particular control is unreasonable or unnecessary in the circumstances, the control may be relaxed so as to permit vehicle parking within the site. 47 In the course of conducting the view, I observed many situations where garages, carports and hardstand car spaces have been constructed in front of the building line, a feature that is inconsistent with the DCP.

Conclusion and orders 48 I conclude that the proposal to construct two permeable wheel strips for off street parking and converting the existing fence into a sliding gate should be approved on the basis that the control that seeks to restrict such development in front of the building line is unreasonable and unnecessary in the circumstances. I make the following orders: 1. The appeal No. 10059 of 2010 is upheld. 2. The attached approved development conditions, including the "Hardstand Parking Plan" apply. 3. The exhibits, with the exception of Exhibit "A", are returned.

          Michael Whelan
          Acting Commissioner of the Court

ANNEXURE "A" Freer v Waverley Council

The development must be in accordance with; (a) Architectural Plan/project No 0916, Dwg Nos W001 Issue B & W002 Issue A, prepared by nextspace , and received by Council on 25 September 2009, except where amended by the following conditions of consent; (b) The Site Waste and Recycling Management Plan (SWRMP) and Checklist, in accordance with the SWRMP Checklist of Part G1, Waverley DCP 2006.

B. COMPLIANCE PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE

2. SECURITY DEPOSIT A deposit or guarantee satisfactory to Council for the amount of $250 must be provided as security for the payment of the cost of making good any damage that may be caused to any Council property as a consequence of this building work.

This deposit or guarantee must be established prior to the issue of the Construction Certificate. The full amount of the difference after recovery of Council's cost for any repair of damage to Council property will be refunded after satisfactory completion of the building work to the person who paid the deposit.

3. NO BUILDING WORKS PRIOR TO RELEASE OF CONSTRUCTION CERTIFICATE The building work, including demolition, must not be commenced until: (a) a Construction Certificate has been obtained from Councilor an Accredited Certifier in accordance with Section 81 A(2) of the Environmental Planning & Assessment Act, 1979;

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.