Hewett v Waverley Council

Land and Environment Court (NSW)|2015-06-05

Solicitors: Ms D Slimnicanovski of Gadens Lawyers (Applicant)

Mr S Patterson of Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 10048 of 2015

Judgment

This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Waverley Council (council) of a development application (DA-100/2014) for the construction of a vehicular access ramp/driveway within the road reserve of Dellview St, providing access to hardstand car spaces located in the front setback to 20 and 22 Dellview St, Tamarama (site).
The key issues in dispute between the parties are whether the proposal: 1. would have an unacceptable impact on the streetscape (Contention 1); 2. provide an unacceptable landscape setting (Contention 2); 3. result in an unacceptable loss of trees (Contention 3); 4. is an appropriate design and would result in unacceptable vehicular movements (Contention 4); and 5. is in the public interest (Contention 7).

Site and locality

The site is located on the eastern side of Dellview Street and comprises two residential allotments (Lot 2 DP 580641 - 20 Dellview) and Lot 8 DP 10564 - 22 Dellview) and the road reserve in front of 18 to 22 Dellview Street. The residential allotments are rectangular in shape with areas of 479.3sqm (20 Dellview) and 445.9sqm (22 Dellview) and are about 3.5 -5m below the road level of Dellview Street.
Immediately adjoining the residential allotments is a pedestrian footpath, which steps down to the south from the garage crossover of 18 Dellview Street past the site, steps down and then turns to the west at 24 Dellview Street and along the side boundary of 26-28 Dellview. A heavily landscaped embankment is between the footpath and the road level. Pedestrian access to 20, 22 and 24 Dellview Street is available from the footpath but there is no vehicular access to these properties.
20 and 22 Dellview Street are each developed with two storey detached dwellings with hard paving in the front setback area and high brick walls fronting the footpath.
18 Dellview Street has a garage that is accessed off Dellview Street and is at a higher level than the house on this property. 26-28 Dellview Street is currently being redeveloped with three townhouses.
The immediate locality is residential with a mixture of detached dwellings, semi-detached dwellings and small scale residential flat buildings. Dellview Street slopes down from north to south and turns sharply to the west at 24 Dellview Street and to the south at 26-28 Dellview Street and proceeds down towards the beach. There are views to the ocean from Dellview Street and the road reserve can be viewed from the open space in Gaerloch Avenue, which forms part of the coastal walk.

Planning controls

The site is zoned R3 Medium Density Residential under Waverley Local Environmental Plan 2012 (the LEP) and the development is permissible with consent. Clause 2.3(2) of the LEP provides that regard must be had to the objectives of the R3 Zone which are: To provide for the housing needs of the community within a medium density residential environment; To provide a variety of housing types within a medium density residential environment; To enable other land uses that provide facilities or services to meet the day to day needs of residents.
Clause 5.9 of the LEP deals with Preservation of trees or vegetation and the objective at cl.5.9(1) states: The objective of this clause is to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation.
Clause 5.9(3)(a) requires consent for tree removal.
Waverley Development Control Plan 2012 (the DCP) is relevant, particularly Part B - General and Part C - Residential Development.
Part B5 deals with tree preservation. The objectives are: 5.1 GENERAL PROVISIONS Objectives To ensure the conservation of trees of ecological, environmental, heritage and aesthetic significance. To ensure development does not impact on the health of a tree on the site or adjoining properties or street trees. To ensure all works to trees are conducted in accordance with the relevant Australian Standards.
Part B8 deals with transport. It includes strategies, objectives and controls for car parking and urban design. Car parking is one of the most critical planning and transport issues in Waverley. Wherever possible, Council strongly encourages the use of alternative modes of transport such as walking, cycling and public transport and continues to work towards providing better transport connections to the area. The provision of private (on-site) and public (on-street) parking must be managed in an equitable and environmentally sensitive manner that benefits the community as well as the individual. When considering applications, the following general principles shall apply: Strategies …… The provision of car parking on-site may not be appropriate in all locations or circumstances and approval will only be granted where the site and locality conditions permit. Car parking must be designed to complement the design of the building and streetscape to which it relates and incorporate a range of appropriate materials and design. Where site conditions allow, car parking structures should be located behind the front building line. In some circumstances, car parking structures in front of the building line may not be appropriate for streetscape or design reasons. Driveways and vehicular access should be designed to minimise the loss of on-street parking wherever possible. …… 8.1.1 Car Parking Objectives To provide car parking rates which reflect the proximity of development to existing public transport, services and the availability of on-street parking. To balance the need to meet parking demand on site with the need to contain parking and promote sustainable transport. To establish controls for parking that reflect the characteristics of the area in terms of urban form, land use and proximity to public transport. 8.4 Urban Design Objectives To ensure the provision of off-street parking is subject to considerations of urban design, streetscape and heritage conservation. Controls …… e. Where only front access is available, car parking shall be provided behind the front building line, unless otherwise indicated in the controls within the DCP. f. Car parking and vehicular access must not dominate the streetscape. Landscaping is to be used to soften the impact of such structures/areas. g. Car parking and driveway design is to preserve mature and significant trees and vegetation on the site and in the surrounding streetscape.
Part C1 provides controls for Dwelling houses and dual occupancy development. Clause 1.5 deals with Streetscape and visual impact. It relevantly provides: 1.5 STREETSCAPE AND VISUAL IMPACT In general, development should complement the existing character of the streetscape in terms of scale, architectural style and materials. Where buildings of contemporary and non-traditional architectural styles are proposed, they should not diminish the established character of a street or area. Objectives To encourage and facilitate dwelling house and dual occupancy development of a high architectural and aesthetic standard, that acknowledges and responds to the architectural style and character of the existing built environment. ……
Clause 1.10 of Part C1 deals with Car parking. The strategies are generally the same as those referred to in Part B8. It includes the following objectives: Objectives To provide convenient and accessible parking that is appropriately designed and located. To achieve a high standard of urban design and retain the visual quality of residential buildings, streetscapes and landscapes. To protect the amenity and safety of pedestrians. To ensure that car parking accommodation does not dominate or adversely impact on the existing built or landscape character of the street. To encourage the use of alternative modes of transport in areas well serviced by public transport. To ensure on-street parking supply is protected by minimising impacts of additional vehicular kerb crossings.
Clause 1.10.1 of Part C1 includes a maximum parking rate of two car spaces for a dwelling of three or more bedrooms and permits a reduced rate (or no parking) in circumstances where: (i) Parking may have a detrimental impact on the character of the streetscape, heritage item or heritage conservation area, or health of a significant tree. (ii) A driveway cannot comply with maximum gradients and design standards required by the Australian Standards. (iii) Vehicle entry and exit may have a detrimental impact on pedestrian and traffic movements and safety or nearby services or infrastructure. (iv) The access to the on-site car parking will result in the loss of more than 1 on-street car parking space. (v) There is low on-street parking availability and no net car parking public benefit.
Clause 1.10.2(a) of Part C1 provides a hierarchy for the location of car spaces for existing development. It provides that hardstand, carport and garages should be located firstly, at the rear of a site with access from a rear lane, secondly, at the side of a dwelling behind the building alignment and thirdly, a hardstand may be provided forward of the front building line (to the side of the dwelling). Clause 1.10.2(d) provides that: (d) A hardstand (in the form of wheel strips) or carport forward of the building line may be permitted where: (i) There is no rear access; (ii) The site is of sufficient width where the car space will not dominate the existing building (i.e. does not exceed 45% of the width of the site frontage); (iii) It is no greater than a single car space; (iv) The distance between the building and the front property boundary is a minimum of 5.4m; (v) Public views would not be adversely affected; (vi) There is a predominance of this form of off street car parking in the immediate vicinity of the site; (vii) It is designed so that it does not detract from the heritage significance of the building or area; (viii) There is limited availability to public transport; (ix) The safety of vehicles, pedestrians and cyclists is maintained; and (x) There is adequate bin storage space other than on the hardstand.
Clause 1.10.3 of Part C1 deals with design of car parking and relevantly provides: (a) All car parking should be designed to complement the style, massing and detail of the dwelling to which it relates. (b) Car parking is to be sympathetically integrated into the design of residences and to be secondary in area and appearance to the primary residence and related site. (c) No element of the street facade/frontage of a building, including verandahs and window awnings are to be removed or demolished in order to accommodate car parking unless mitigating measures are taken to ensure cohesive integration of the works with the building. (d) Car parking is to preserve the natural features of the site and incorporate substantial screen planting to both the surrounds and any structure facing the street. …..
Clause 1.11 of Part C1 deals with landscaping. The objectives and controls include: Objectives a. To enhance the amenity and visual setting of the site, streetscape, and surrounding neighbourhood. …… d. To maximise on site stormwater infiltration and minimise off site stormwater runoff. Controls …. b. A minimum 15% of the total site area is to be provided as landscaped area. …. e. A minimum of 50% of the area between the front of the building and the street alignment is to be open space. f. A minimum of 50% of the open space provided at the front of the site is to be landscaped area. g. Existing significant vegetation is to be retained. …….
As part of the development is within the road reserve an application to the council under s 138 of the Roads Act 1993 has been made. The parties agree on the appropriate approach to the s138 application, which is summarised by Mr Eastman, for the applicant, as: Biscoe J's decision in Goldberg v Waverley Council is precisely on point with respect to the Court's power in this appeal under the Land and Environment Court Act 1993 ("L&EC Act"). When seized of a Class 1 appeal of a DA that includes a road works component requiring s.138 approval, the Court's functions and discretions under s 39(2) of the L&EC Act will include the Council's functions and discretions as determining authority under Part 5 of EP&A Act (the latter part here not relevant, but applicable to the Court exercising the Council's functions and discretions as determining authority under Part 4 of the EP&A Act) and s.138 of the Roads Act 1993 in relation to those road works. The Court will only have s.138 functions and discretions if the road works are in fact part of the "matter" under s 39(2) of the L&E Court Act. In Goldberg v Waverley the road works constituted part of the matter because they were "inextricably linked" to the development (the road works in Goldberg being necessary to obtain access to the property - Goldberg, at [47], [52]). Whether the works in this case are part of the "matter" will necessarily be fact-specific - although it must in this case be uncontroversial due to the nature of the works proposed. Essentially, it is simply a matter of the merit assessment of the proposal.

Proposal

At the commencement of the hearing, the applicant sought and was granted leave to amend the application (Exhibit E). The changes included a reduction in the length of the driveway, increase in the width of the vehicle turning area and the provision of an infiltration trench.
The development application, as amended, seeks approval for the construction of a vehicular access ramp/driveway within the road reserve of Dellview Street, to provide access to proposed hardstand car parking spaces within the front setback of 20 and 22 Dellview Street.
The proposal involves:

removal of 11 trees in the road reserve;
demolition of part of the existing footpath;
construction of the access driveway and turning area in the road reserve, with associated modification of infrastructure, provision of new retaining walls, reconstruction and raising the height of a section of footpath and construction of a new set of stairs within the footpath;
demolition of part of the front fence and construction of an elevated (about 1.5m) hardstand space for one car forward of the building line with associated steps at 22 Dellview Street;
demolition of part of the front fence and construction of a hardstand parking space for one car and driveway forward of and parallel to the building line at 20 Dellview Street.
associated landscaping, including the provision of five advanced Coast Banksia in the road reserve.

In response to recommendations of the experts, the applicant accepted that further changes were required. (Exhibit F). These changes include:

details of the demolition of the existing bay window and provision of a new window with 1.6m sill height required to accommodate the proposed hardstand at 22 Dellview Street;
the treatment of the eastern side of the driveway ramp adjoining the footpath and included the provision of a sandstone retaining wall, filling behind the retaining wall with soil, a stainless steel mesh to support a climbing fig (Ficus pulmina), a 800m concrete upstand to the driveway carriageway and a post and rail fence above the upstand.

The parties agreed that if the Court were to find that the application warranted approval, final plans and conditions, which incorporated these changes, would be filed before final orders could be made.
The amended application and the proposed changes would involve an access ramp that commences at the driveway of 18 Dellview Street (RL 39.92) and curves to run parallel to 18, 20 and 22 Dellview Street. The ramp is elevated above the footpath at 18 Dellview Street (RL34.49) a maximum of about 2.7m to the carriageway (RL 37.185) plus the upstand (800mm) and railing (500mm). The ramp slopes to the turning area outside 20 Dellview Street (RL34.10) and the footpath level is raised (+1.18m) to be at a similar level to the turning area and the hardstand area. The footpath continues at roughly this level past 22 Dellview Street that results in the hardstand parking area being raised (RL33.53), which would be approximately 1.55m above existing ground level and requires the removal of the existing bay window and a new window that would be roughly at car level outside and would be a highlight window inside. New Steps are provided in 22 Dellview Street and the footpath to accommodate these increased levels. The carriageway of the southern end of the turning area would be about 0.5m to about 1m above the existing ground level. The overall length of the ramp and turning area is about 27m with a width of 4m, which widens to 5m at the southern end of the turning area.

Evidence

The Court visited the site and heard objections from the adjoining neighbours at 18 Dellview Street and 26-28 Dellview Street and a nearby resident. The key concerns of the objectors were that the proposal would remove a large area of deep soil planting with established trees and replace it with a raised concrete driveway adjoining and crossing the pedestrian footpath. They opposed the loss of one on street parking space and considered that the manoeuvring of cars across the footpath, which is heavily used by pedestrians to access the beach, would be a safety risk. The owner on 18 Dellview Street was particularly concerned about the proximity of the driveway to his property and that instead of viewing a landscaped embankment he would view a concrete structure which would not be able to be effectively screened by landscaping. The objectors considered the proposal changes public land, which provides amenity to the area, to a private use with a structure that adversely impacts on the streetscape.
The matter commenced as a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act). The parties did not reach agreement, the conciliation conference was terminated and the hearing held forthwith. The parties agreed that the site view and comments of the objectors and experts would be evidence in the proceedings.
The Court heard expert evidence from: For the applicant

Mr A Darroch, planning
Mr P Castor, landscaping
Mr P Corbett, parking and traffic
Mr D Brewsher, hydrology
For the council
Ms K Gordon, planning
Mr A Powe, landscaping
Mr T Rogers, parking and traffic
Mr C Thomas, hydrology

The hydrology experts agreed that, subject to conditions, the amended proposal was acceptable.
The key issue that remained in dispute was whether the proposal would have an acceptable impact on the streetscape, as a result of the removal of vegetation, the extent of structure and paved areas and the adequacy of replacement planting.
Mr Powe considered the existing vegetation in the road reserve to be an important element in the streetscape that provides benefits in a developed built environment and is part of a larger network of landscaped road reserves. In his opinion, the replacement planting will not compensate for the vegetation to be removed, either in number of trees or volume of canopy and understorey. The replacement planting is restricted to the edges of the proposed structure and Mr Powe is concerned about the viability of the proposed replacement Coast Banksias due to the available soil volume in the two metre wide planting strip next to the road.
In Mr Powe's opinion, the amenity of the footpath would be adversely affected by the loss of landscaping, the elevated ramp immediately adjacent to the footpath will not be adequately softened and screened by the proposed climbing fig and the expanse of hard surfaces in the turning area and car spaces. He also raised concerns about the maintenance, by private owners, of landscaping on public land.
Mr Castor placed less significance on the existing landscape as it had been planted by and maintained by adjoining owners in an ad hoc manner. Although he acknowledged that the existing Coast Banksia (Tree 3) was significant and, it and other trees are in good condition. Nevertheless, he considered that within 1-2 years the replacement planting would compensate for the loss of the existing vegetation, effectively screen the proposed structure and reinstate the character of the streetscape.
Mr Castor considered that the built form of the ramp would be effectively screened by the climbing fig and that the amenity of the footpath would not be unreasonably impacted. In his opinion, the area for planting was adequate to ensure the viability of the proposed trees and the maintenance would be adequately addressed through the proposed Vegetation Management Plan (VMP).
Mr Darroch considered the impact on the streetscape to be acceptable for reasons which are summarised as follows:

The site is zoned R3 - Medium Density Residential as opposed to RE 1 - Public Recreation. Other pocket parks, road closures and verges are zoned RE 1 and, consequently, if the landscaped road reserve were of significance it would also be zoned RE 1 and the proposal would not be permissible. The proposal meets the objectives of the R3 zone by providing vehicular access where none currently exists and improving pedestrian access to the properties.
The provision of vehicular access is also consistent with the Council's Charter under the Local Government Act 1993 (the Charter) to provide adequate equitable and appropriate services and the social justice principles of equity, access…a past "tragic" experience of the owners illustrates the existing pedestrian access to the properties does not meet council's responsibilities under the Charter.
The proposal will improve access to the properties and contribute to security and safety of pedestrians using the footpath thereby achieving the objectives of the DCP for Accessibility (cl 7.1 of B7) and Safety (cl 10.1 of B1).
The proposal will improve the landscaping and interface of the properties to the public domain and better meet the objectives of the DCP for Landscaping (cl 1.11 of C1).
The changes to 22 Dellview Street would have an acceptable impact on the public domain and maintain appropriate amenity to the front room of the dwelling. The outlook to 18 Dellview street would be improved by the use of high quality materials and "green wall" of the ramp.

Mr Darroch agreed that: the proposal will significantly alter the character of this localised part of the streetscape…the change will be for the better and will provide a benefit to the community as well as the individual…
In Mr Darroch's opinion, the benefits of the proposal need to be weighed against other controls in the DCP and that the predominant character of the street provides on-site parking and, given the constraints of the site, the proposal achieves an appropriate streetscape outcome.
Ms Gordon did not accept that the matters raised by Mr Darroch would outweigh the relevant considerations under the DCP for the provision of car parking. She stated that the DCP recognises that there is a strong demand for car parking in Waverley and that it is not always feasible for on-site parking to be provided. The DCP establishes a hierarchy for the provision of on-site parking and that the least preferred option is the provision of parking in front of the building line. In particular, clause 1.10.2(d) of Part C1 of the DCP provides criteria for hardstands in front of the building line and the proposal does not satisfy a number of these criteria. The hardstand car space in front of and parallel to 20 Dellview Street, even if it is reduced in length, would dominate the dwelling and exceed 45% of the width of the site and there is not a predominance of off street parking, or hardstands in the immediate vicinity of the site.
In Ms Gordon's opinion, the unusual nature of the road reserve, due to its steepness, width and sharp bend in the road, as well as the pedestrian usage of the footpath leading to the beach preclude the provision of on-site parking without a significant impact on the streetscape. The loss of existing vegetation and the size of the structure, the extent of hard surfaces as well as the changes to 22 Dellview Street have a detrimental impact. The height, materials and proximity of the ramp to the footpath and 18 Dellview Street would have a significant impact, which would not be mitigated by the proposed climbing fig. In her opinion, the outlook from the footpath and the front of 18 Dellview St would change from a vegetated slope to an elevated ramp, which is unacceptable given that the proposal provides no benefit to 18 Dellview Street or to pedestrians.

Submissions Applicant's submissions

The R3 zoning of the road reserve and the adjoining residential allotments, the permissibility of the proposal and the consistency with the zone objectives must be given significant weight.
There are many instances of the Court approving driveway access works in road reserves, including where there are (sometimes significant) pedestrian interfaces. For example, in Ezzy Architects v Leichhardt Council [2014] 1178, Hussey C approved an application in an open space zoning in which there were significant heritage constraints, which demonstrates: the significance of the zoning also informing the merit assessment in relation to the reasonable expectation of what form of development can take place on the site. Here, the land is zoned R3 and is utilised in other parts of Dellview St and the surrounds for driveway crossings (such as the right angled but significantly paved one seen servicing No. 18 Dellview). There is no Council or community expectation in the planning controls that this area is to be open space or conservation and cannot have that form of development and as a consequence it is inappropriate to downplay the actual zoning of the land in circumstances where the development is not only permissible but precisely accords with the objectives.
The impact on the streetscape and the proposal's compatibility should be assessed against the principles in Project Venture Developments v Pittwater Council [2005] NSWLEC 191, which are summarised in Valen Properties v Hurstville City Council [2015] NSWLEC 1045 as: a. What is/are the existing and desired future characters; b. Are there any physical impacts; c. Are there any visual impacts; d. Is the proposal therefore capable of existing in harmony (although not the same).
The proposal satisfies these principles. Notably the existing character is residential with a road reserve extending beyond the physical boundaries of the made road with driveway entrances. The desired future character is that expressed in the R3 zone, the floor space ratio (FSR) and Height of Buildings in the LEP. There are no unreasonable physical impacts.
The visual impact when viewed from different locations is acceptable. The landscape plan and the photomontage indicate that from Dellview Street (North and West) the driveway falls and is not discernible and the replacement planting regime is an improvement on that which exists. From the south and near Gaerloch Reserve the proposal is viewed within areas of built form, and in a location where there are expansive views and vistas across the coastal walk. From the west and the footpath, the wall structure will replace a vegetated verge for about 12m, however, the ramp has been designed to mitigate impacts and with the improved safety and connectivity is capable of existing in harmony with the surroundings. Council has not identified in its contentions any impact on 18 Dellview Street and evidence on the potential impacts on this property would be needed if the Court were to consider it to be an issue.
The proposal should also be viewed in the context of the planning principles in Pafburn v North Sydney Council [2005] NSWLEC 444, as revised by Moore SC in Davies v Penrith City Council [2013] NSWLEC 1141 to read: Revised planning principle: criteria for assessing impact on neighbouring properties The following questions are relevant to the assessment of impacts on neighbouring properties: How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained? How reasonable is the proposal causing the impact? How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact? Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours? Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?
The proposal satisfies the principle. The "affected property" is about 12m of the footpath and there are no sunlight, view or privacy impacts. The "reasonableness" of the impacts should be measured against the benefits of the proposal, as outlined by Mr Darroch. The development potential of the "affected property" is not restricted. The proposal is well designed and lastly, there are no objective, numeric or other controls in the DCP, which the proposal breaches and it is consistent with the objectives of these controls.
When assessed in the light of these planning principles, the impact on the streetscape, particularly the public footpath on the eastern side of Dellview St, provides an expected outcome with the R3 zoning, does not unreasonably interfere with any neighbour's amenity, and is a very reasonable proposal (assessed on a Pafburn or Davies basis) particularly given the high level of amenity it will provide to the applicants, as well as an improved outcome with the public interface in this location. Council's submissions
Under s 79C of the EPA Act the relevant matters for consideration are the LEP and DCP. The other matters raised by Mr Darroch, including the Charter and past experience of occupants are not relevant. Under the LEP, roads are generally zoned the same as the adjoining land use and the other controls in the LEP and DCP should not be ignored because the proposal is permissible. The DCP controls for Accessibility in cl 7.1 of Part B7 of the DCP do not apply to the provision of car access and the proposal, through the introduction of additional steps, would not improve accessibility for pedestrians, including people with a disability, ageing people with mobility difficulties, parents with prams and other people with temporary disabilities.
The proposal offends cl 5.9 of the LEP and the objectives and controls in the DCP by removing 11 trees and the landscape experts do not agree on the quality or volume of the replacement trees or ability of the landscaping to soften and screen the development and the feasibility of maintenance. The proposal also offends the objectives and controls in the DCP in relation to the provision of car parking and would result in an unacceptable impact on the streetscape, particularly from the footpath.
The principles in Project Venture and Pafburn/Davies are relevant but are not met by the proposal. In particular, the "affected property" is not just a 12m length of the footpath but its entire length. The "affected property" also includes the adjoining properties, including 18 Dellview Street. The owner of this property raised concerns specifically about the impact of the proposal on his outlook, which the planning experts discussed in oral evidence and held differing opinions. The amenity of the "affected properties" will be adversely affected by the proposal through the loss of vegetation, the visual bulk of the structure and extent of paving, change of outlook as well as changes to the dwellings themselves by the hardstand and removal of the bay window. Furthermore, as stated above, the proposal does not comply with the relevant planning controls.

Findings

I accept the evidence of council's experts and submissions of Mr Patterson. The LEP and DCP are a relevant consideration under s 79C of the EPA Act. The proposal is permissible in the R3 zone under the LEP and no contention was raised about its consistency with the zone objectives. While clearly this must be given weight in the merit considerations of the application, the DCP must be a "focal" point in the consideration of the proposal (see Zhang v Canterbury Council [2001] NSWCA 167 and Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472).
As outlined above, the DCP establishes a clear regime for the provision of car parking. While there are few numeric controls there are a number of other controls about the location of car parking and level of impact, as well as objectives to these controls. The DCP recognises that there is a strong demand for car parking in Waverley and that it is not always feasible for on-site parking to be provided. The DCP does not require a minimum number of spaces for a dwelling and acknowledges that no parking may be required in certain circumstances (cl 1.10.1 of Part C1), including where it may have a detrimental impact on the character of the streetscape.
The DCP establishes a hierarchy for the provision of on-site parking and the least preferred option is the provision of parking in front of the building line (cl 1.10.2(b) of Part C1).
Clause 1.10.2(d) of Part C1 of the DCP provides criteria for hardstands in front of the building line and the proposal does not satisfy a number of these criteria. The hardstand car space in front of and parallel to 20 Dellview Street, even if it is reduced in length, would dominate the dwelling and exceed 45% of the width of the site (ii), the hardstand space of 20 Dellview Street, as proposed, would accommodate more than one car, however, the applicant has agreed that this could be reduced to comply (iii), the distance between 20 and 22 Dellview Street and the front property boundary is not 5.4m, hence the need to provide parallel parking (20 Dellview Street) and to remove the bay window (22 Dellview Street) (iv), there is not a predominance of parking in front of the building line in the immediate vicinity of the site (vi), Dellview Street is on a bus route so public transport is available near the site (viii), and safety issues from cars manoeuvring across the footpath have been raised (ix).
The changes to 22 Dellview Street to accommodate the length of the hardstand would not comply with the requirements of cl 1.10.3 of Part C1. A hardstand raised about 1.5m up the dwelling, which would result in the car being positioned just under the eaves line and with a façade that provides a window with a sill height 1.6m above FFL and with an outlook from inside the room to the sky blocked by the view of a car is not an outcome that complements the dwelling or integrates the works into the building.
The proposal does not comply with the numerical controls for landscaping in cl 1.11 of C1, however, this needs to be balanced against the non-compliance of the exiting dwellings, which have frontages that are paved, with the introduction of landscaping within the site and the removal of the high fences, which improves connectivity with the footpath. Nevertheless these positive benefits of the proposal do not outweigh the impacts of the hardstand areas and changes to 20 Dellview Street, which will clearly be visible from the footpath due to the removal of the front fences, whereas the existing hard surfaces are not.
The removal of trees, extent of structure, hard paving and the limited opportunity to screen the structure, particularly when viewed from the footpath, will have an adverse visual impact on the streetscape and not meet the requirements in cl 1.5 of Part C1. The existing landscaped road reserve provides considerable amenity to the street and although the planting is not designed, it includes established trees such as the Coast Banksia and the Casuarina, which are in good condition and provide a green space within an otherwise urban environment.
While the reserve is not zoned RE1 it is one of the "essential elements that make up the character of the surrounding area", which the development should respond to. A crossover that is consistent with other crossovers in the street could be appropriate; however, due to the constraints of the reserve this cannot be achieved with the current residential development on the site but may be able to be achieved if the allotments were to be amalgamated and redeveloped with medium density development consistent with the landuse table for the R3 zone.
To provide car access to two properties requires a significant driveway structure within the reserve that is some 27m long, 4m wide with an elevation up to 3.5m that passes parallel to, not only the properties which will benefit from the access, but also 18 Dellview Street and the pedestrian footpath. This structure does not respond to the character of the street. The landscaping regime, if implemented and maintained, will screen the structure from a number of vantage points in the street, such as when viewed from the north. However, it will be able to be viewed from the west along the upper footpath in Dellview Street, and from the east and south along the footpath adjoining the houses. The structure and the large expanse of hardstand to provide the turning area will not be adequately screened from the footpath and will have an unacceptable impact on the streetscape that is not consistent with the relevant objectives and controls in cl 1.5 of Part C1 of the DCP
Consequently, the proposal does not satisfy the planning principles in Project Venture. In particular, Mr Eastman relies on the LEP zoning, FSR and height to determine the desired future character. While these are relevant, the provisions of the DCP also determine the desired future character. Clearly the desired future character in the DCP does not envisage the provision of car parking in the manner proposed. Furthermore, Mr Eastman states that there are no physical impacts, however, the removal of trees, the changes in levels and alterations to the existing building are physical impacts. The visual impacts have been discussed above and consequently the proposal would not exist in harmony.
The proposal also does not satisfy the planning principle in Pafburn/Davies. The "affected property" is not limited to 12 m of the footpath but to the length of the footpath as well as the adjoining properties, as submitted by Mr Patterson. Similarly, amenity is not limited to "sunlight, view or privacy" but would include aspects such as tree loss, bulk and visual impact. As discussed above, the proposal will change the amenity of the "affected property". During the hearing, I advised the parties that the impact on 18 Dellview Street was a relevant consideration as it had been raised by the objector and that if the approval of the application were reliant on the determination of this impact, I would enable the parties to provide further evidence, it they required. However, as the application fails on other matters it is not necessary to do so.
In weighing up the benefits of the proposal against its impacts, I am not persuaded that it is reasonable. The proposal provides significant benefit to the two properties by providing on site car parking for two cars, but as discussed above, it would result in material impacts to the public domain and streetscape that are not consistent with the expectations of the planning controls.
For these reasons, the application must fail. It is therefore not necessary for me to discuss the other matters in dispute between the parties.

Orders

The Court makes the following Orders:
The appeal is dismissed.
The development application (DA-100/2014) for the construction of a vehicular access ramp/driveway within the road reserve of Dellview St, providing access to hardstand carspaces located in the front setback to 20 and 22 Dellview St, Tamarama, is refused.
The exhibits, except Exhibits 2, A and B, are returned. Annelise Tuor Commissioner of the Court

Amendments 03 September 2015 - Respondent entered on cover sheet 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: 03 September 2015

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Judgment (11 paragraphs)

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Cases Cited (6)