McClelland v Wollongong City Council

Statutory Planning Framework 8The site is located within the coastal zone and State Environmental Planning Policy 71 cl 8 lists matters for consideration of applications. I am satisfied that the proposal is not inconsistent with the State Policy. 9The Wollongong City Centre Local Environmental Plan 2007 (WCC LEP 2007) must be considered in the assessment of the development application by virtue of a savings provision at cl 1.8 (a) of the new LEP 2009. Clause 12 of LEP 2007 requires the consent authority to have regard to the objectives of the zone in determining development applications. The site is zoned B4 ' mixed use- city edge' under this LEP and residential flat buildings are permissible with consent. The objectives of the zone include: + to provide a mixture of compatible land uses + to encourage a diverse and compatible range of activities including higher density residential development 10The Wollongong Local Environmental Plan 2009 contains the following savings provision: If a development application has been made before the commencement of this plan in relation to land to which this plan applies and the application has not finally being determined before that commencement, the application must be determined as if this plan had not commenced. 11The subject development application was lodged in July 2009 and therefore the applicable LEP is that of 2007. Similarly, the council states that the relevant Development Control Plan is that of 2007 and cl 8 of the DCP 2009 contains a savings and transitional provision, such that development applications lodged before the commencement of this DCP, are to be assessed in accordance with previous development control plans and policies. That is the 2007 DCP. 12DCP 2007 is a comprehensive DCP, however due to the narrow scope of the development application before the Court, the relevant provisions are contained in Pt 4 on 'access parking and servicing'. For on-site parking, in part 4.3 the objectives include: + facilitate an appropriate level of on-site parking provision in the city to cater for a mix of development types + minimise the visual impact of on-site parking + provide adequate space for parking and manoeuvring of vehicles. 13The general controls in the DCP for all development includes: On-site parking must meet the relevant Australian Standard (AS 2890.1 2004 - parking facilities, and as amended). 14For residential flat buildings the DCP requires on-site parking to be accommodated underground or otherwise integrated into the design of the building. 15The maximum parking rate in the DCP for residential apartment buildings is one space per one-bedroom unit, 1.2 spaces for a two-bedroom dwelling and two spaces for three-bedroom dwellings. 16At Folio 266 of council's bundle, there is the definition of open deck car park as referred to in the Building Code of Australia . Open deck car park means a car park in which all parts of the parking storeys are cross ventilated by permanent unobstructed openings in not fewer than two opposite or approximately opposite sides, and (a) each side that provides ventilation is not less than 1/6 of the area of any other side: and (b) the openings are not less than one half of the wall area of the side concerned. 17The BCA also contains requirements in Pt F4 (11) that every storey of a car park, except an open deck car park, must have: (a)system of ventilation complying with AS1668.2 or (b)an adequate system of permanent natural ventilation. 18The Australian Standard 1668.2 - 1991 for the use of mechanical ventilation and air conditioning in buildings Pt 2 mechanical ventilation for acceptable indoor air quality at s 4 refers to ventilation of enclosures used by vehicles with internal combustion engines and this applies to car parks. Subsection C states that mechanical ventilation may be omitted from certain areas of car parks, as described below and subject to conditions, (A) (B) and (C). The areas include: (iii) Areas other than queueing areas situated within 18 m from either a boundary that is open to the outside or a perimeter wall having uniformly distributed unobstructed openings of 2 sq m per car parking space. (iv) Areas other than queueing areas, situated between opposite boundaries that are not more then 75 m apart and are either open to the outside or have walls with uniformly distributed unobstructed openings of the total area of the least 1 sq m per car parking space. Where the permanent ventilation openings are located in adjacent walls the maximum allowable depth of the car park may be increased...where the permanent ventilation openings are in opposite walls which are of unequal length, each part shall be treated separately... The conditions are as follows: (A) The floor of the car park shall be at or above the natural ground level of required outdoor clear space, having the permanent ventilation openings along at least one side... (B) Outdoor areas immediately outside the required permanent ventilation openings of a car park shall be free of vegetation or other obstructions to the free flow of air to and from the car park... (C) The parking areas shall be free of internal permanent obstructions except as shown in figure 4.1. 19Figure 4.1 shows natural ventilation of car parks and note 2 states: Total length of internal obstructions such as stairs, lifts, switch rooms shall not exceed the lesser of: (a) 10 m and (b) 0.2L separation between adjacent obstructions shall be at least the length of the larger obstruction. 20In this regard Mr Inglis, states that the 10 m is the lesser standard and it is not complied with in the circumstances of this case. 21The Australian New Zealand Standard AS -- NZS2890.1:2004 is the relevant standard for parking facilities and Part 1 sets out the requirements for off street car parking. The standard includes matters such as the dimensions for locating columns, walls or other obstructions. The design envelope provides for structural elements to be clear of all four side doors of a vehicle. 22Part 5.4 is for the design of enclosed garages, and this states: Fully enclosed car garages shall meet the plan dimension requirements below. These requirements are also applicable to garages within domestic properties. (a) Single vehicle garage. The overall internal which shall be 3 m minimum and the internal space shall conform to the design envelope...except that the entry splays...may be omitted. A doorway of 2.4 minimum width shall be provided. For right angle access to a garage, the required width of apron for manoeuvring purposes is shown in figure 5.4, single manoeuvre front in entry may not be possible for some vehicles larger than the B 85 vehicle at the apron widths shown in figure 5.4 (b) Multiple vehicle garage with no internal walls parking spaces shall be 2.4 m wide minimum these shall be spaced as follows (i) Single door for all spaces the spaces shall be contiguous with the end spaces having a minimum width between the centre line of the space and the end wall or obstruction of 1.4 m to allow clearance for door opening and door width shall be the space width times the number of spaces (in metres). Apron widths for angled entry shall be at least equal to the aisle widths specified in figure 2.2 for the corresponding parking angle and user class. (ii) Separate door for each space, both parking space and door width shall be 2.4 m minimum. The end of spaces shall have a minimum width between the centre line of the space and the end wall or obstruction of 1.5 m to allow clearance for car door opening. Note: The clearance of 1.5 m in items 1 and 2 comprises half the width of a 2.4 m wide space plus a further 300 mm clearance for door opening. 23For the purposes of assessment the traffic engineers agreed that the B 85 vehicle was the appropriate model for the dimensions of the car parking spaces. This vehicle is 4.910 x 1870 mm overall. 24The design of parking aisles for manoeuvring is referred to in table B2 as the aisle widths for 90 angle parking and manoeuvres for the B 85 vehicle. With a nominated parking space width of 2.4 m the base aisle width is 5.6 and the minimal aisle width including manoeuvring clearance is 2 x 300 mm that is 6.2 m wide. For a parking space width of 2.5 m a base aisle width of 5.2 m and 5.8 for manoeuvring clearance. 25There is a provision B 4.8 that is parking in residential and domestic car parks that states that a reduction in aisle width from 6.2 to 5.8 may be allowed for 90 turns into parking spaces. This concession, which is designed to be of assistance where space is limited, recognises that such developments will have low turnover and users generally prepared to accept some inconvenience when entering or leaving the parking space. Contentions 26The council contends that the garage enclosures result in unacceptable non-compliance with the requirements of the Building Code of Australia as to ventilation of the basement car parking area and sprinklers. The particulars that council provided are: (a)The basement car park has been originally designed so that is provided with natural ventilation served by openings on the eastern and western elevations, which falls within the meaning of an open deck car park under the BCA. (b)And open deck car park is granted ventilation and sprinkler concessions under the BCA. (c)The walls erected within the car park to enclose the 34 car parking spaces act to limit and prevent the natural ventilation of those spaces within the enclosing walls. As an open deck car park requires all parts of the parking storey to be cross ventilated the car park no longer meets the requirements of an open deck car park and therefore is required to be upgraded to comply with the provisions of the BCA (sprinklers) (d)The BCA requires a sprinkler system to be installed in the class 7A car park other than an open deck car park if the file compartments accommodate more than 40 vehicles. (e)The BCA requires every storey of a car park except an open deck car park to have a system of ventilation complying with AS1668.2 or an adequate system of permanent natural ventilation. If the car park does not have a ventilation. (f)The car park does not have a ventilation system complying with the Australian Standard and the garage enclosures unacceptability limit the ability for the entire car park to naturally ventilate to the natural ventilation standards prescribed by the Australian standard. 27The second contention raised by the council is that the enclosures unacceptably impact on the use of the double car parking spaces that are enclosed by the walls erected and also the use of the car parking spaces that adjoined at those enclosures and the unobstructed spaces within the car park. The particulars council provided are: (a)The Australian Standard provides a minimum width of an unobstructed car parking space of 2.4 m however, where space is obstructed by a vertical object adjacent to it such as a wall or fence an additional 0.3 m shall be added to allow for the opening of car doors. Therefore, the minimum width for an enclosed double garage is 5.4 and for a single enclosed garage 3 m. (b)The double garages do not comply with the requirement of 5.4 but also the adjoining spaces are affected by the enclosures. (c)The spaces adjoining the double garages now have an obstruction by a vertical object adjacent to the space and each space therefore is required an adjoining 0.3 wider in this regard the spaces are required to be 2.7 and the spaces are only 2.4 and therefore would not comply. (d)The above non-compliances with the Australian Standard results in the car parking area being non-compliant with the DCP 2007 cl 4.3A. (e)The installation of double garages has reduced the width of the adjoining single car spaces and reduced the door opening width available. The installation of the double garages has also transferred impact onto the unobstructed car parking spaces, which is unacceptable, amenity impacts caused to the residents requiring access to these spaces.

Evidence 28The Court met on-site and heard from a number of residents of the subject apartment building, Fairways . Concern was expressed that the enclosed car parking spaces impacted on other unenclosed spaces by the fact that the car park was designed and built as an open car park and the width of the parking spaces is too narrow to allow for garages that have the effect of limiting the width of the open spaces to manouvre and open car doors. Concern was also expressed about the precendential effect of approving these enclosures and this would lead to others seeking to enclose their spaces and this would impact on owners of other adjoining spaces. Those who supported the garage enclosures said the garages provided security and storage, in particular for sporting equipment and bicycles. 29The Court heard expert evidence on behalf of the applicant from Mr Stephen Gilchrist, a consultant engineer, and Mr Robert Varga, traffic consultant. For the respondent council, Mr Brett Inglis, senior development project officer with Wollongong City Council (building surveyor), and Mr Michael Bridgeman, consultant engineer, gave evidence to the Court. Joint reports of the parties experts were tendered. The applicant also engaged a surveyor to measure the mid point of twenty-seven spaces of the 90 spaces. This included single parking spaces as well as those enclosed by the double garage. 30The experts agreed that the car park was originally designed as an open deck car park , however, Mr Gilchrist considers that the definition of an open deck car park does not change by the enclosure of some car parking spaces as the car park will still be permanently naturally ventilated. On the other hand, Mr Inglis considers the car park no longer meets the definition of an open deck car park and would be required to be upgraded to comply with the sprinkler and ventilation provisions of the BCA. 31Mr Gilchrist is of the opinion that the garage walls erected may limit natural ventilation, however they do not prevent the overall natural ventilation of those spaces within the enclosing walls, as the doors to each of the enclosed spaces has a permanent fixed opening to facilitate the natural ventilation of the enclosed spaces. He further considers that the enclosed spaces do not change the fact that the external walls of the open deck car park will remain as built. He states that it is not unreasonable that cross ventilated means the airflow between the two opposite and permanent unobstructed openings, such that the principal air flows remain as originally designed along the vehicle circulation aisles, which are unobstructed between the two opposite and permanent unobstructed openings. Furthermore, he refers to its location close to the ocean and the fact that there are no other buildings within 6 m and that the prevailing onshore breezes will flush the car park of any residual fumes and odours. He states that the greater impediment is the presence of permanent structures such as the lift shaft and fire stairs. 32Mr Gilchrist proposes amendments such that the free flow of air could be increased by providing openings above all garage doors. An alternative solution, he also suggests is the installation of openings in the side of the walls, although this is not the preferred solution. Nonetheless, he still is of the opinion that the enclosures meet the intent of the BCA definition for an open deck car park and there is no requirement to provide ventilation and sprinklers. 33Mr Inglis considers that the walls which enclose the car parking spaces do not have permanent unobstructed openings in two opposite or approximate opposite sides which cross ventilate the space within the walls to satisfy the requirements of the definition of an open deck car park . As such he considers that as not all parts of the parking storey are cross ventilated, it can no longer be considered an open deck car park under the BCA and therefore the car park must be upgraded to comply with the ventilation and sprinkler provisions of the BCA. 34While Mr Gilchrist does not agree that the enclosures means the car park is no longer an open deck car park , he states that even if it is determined that the thirty-four out of ninety enclosed spaces no longer meets the BCA definition, then dispensation from the installation of sprinklers is sought on the grounds that only 34 out of 90 car spaces are enclosed and that an alternative solution be considered and approved. The alternative solution being smoke detection and alarm systems. 35Mr Inglis considers that the enclosure of the car parking spaces encourages the storage of combustible materials within the enclosed space with vehicles and this increases the fire hazard and fire spread. As such he considers that if the enclosures are to remain, then the car park must be upgraded with a sprinkler system, complying with the BCA. 36On the question of ventilation, Mr Gilchrist considers that the proposal still meets the definition of an open deck car park , however if it was determined not to be, then mechanical ventilation would be required. However dispensation is sought on the grounds that only thirty-four of the ninety spaces are enclosed and determining an approved location for the discharge of the exhaust system would be problematical in terms of amenity of occupants. As such, he proposes an alternative solution of the smoke detection and alarm system of enclosed spaces only, or a fan for each enclosed space to discharge into the aisle for ten minutes after a door is closed. 37Mr Inglis is of the opinion that the enclosures do not provide for cross ventilation in terms of the definition of open deck car park and car fumes may accumulate to a point where air quality may not be adequate for the occupants and as such the car park must be provided with a ventilation system complying with the Australian Standard. He asserts that the car park does not meet the requirements in Part 4.4 of the Australian Standard and the car park would need to be upgraded to comply with the BCA. 38The traffic engineers prepared a joint report commenting on the contention that the garage enclosures unacceptably impact on the use of the double car parking spaces that are enclosed and also the use of the car parking spaces that adjoin the enclosures. They agreed that a construction tolerance of 50 mm is acceptable when considering the widths of spaces required by the AS. 39Mr Varga is of the opinion that the internal width of all but three of the enclosed garages satisfy the agreed tolerance of 50 mm and that the internal width of the other three is acceptable. With respect to the adjoining unenclosed spaces Mr Varga considers that while some may be less than even the construction tolerance in his opinion all three unenclosed adjacent spaces remain in use and none of the users of these three spaces have objected to the garages. He therefore forms the opinion that while the width of some of the spaces is non-compliant, this is very minor and does not inhibit the day-to-day use. 40Mr Bridgeman on the other hand, states that the Australian Standard 2890 is quite specific in regards to minimum car parking spaces and the original layout was approved by the council as an open car park and it complied with the Australian Standard when constructed. He also says that had the original development envisaged garage enclosures, then it should have been the subject of a redesign of the car park layout to accommodate these enclosures and provide the necessary widths in accordance with the AS. Mr Bridgeman is of the opinion that future purchasers of units within the building would have a reasonable expectation that the spaces comply with the Australian Standard. Mr Bridgeman further comments that the likely longer term outcome from the less than minimum standard car parking space width, is to discourage onsite parking and encourage more on street parking. A secondary outcome would be for parking space widths less than the minimum to set an undesirable precedent not only for the subject apartment building where there are a further 9 double spaces not enclosed but for the whole of the Wollongong Local Government Area. 41Mr Bridgeman is of the opinion that the domino effects of the garage enclosures are unreasonable whereas Mr Varga considers that the inconvenience of passengers having to alight from a vehicle before entering the garage, or unenclosed car space, is acceptable in a domestic situation and he states that the owners of the less than compliant spaces have not objected. 42When questioned as to whether 390 mm space for the opening of the car door to alight Mr Varga responded this is acceptable but conceded it would be difficult for a less mobile person. For Unit No. 25 with a width of 2.645 this provides 386mm to alight, unit 50 provides 380mm, unit 40 346.5mm and unit 19 330mm. Mr Bridgeman considers this is not acceptable in particular for users of unenclosed spaces that do not have the benefit of the additional space provided between that unenclosed spaces allow for the opening of car doors and manouvering their vehicles that the Australian Standard provides. Findings 43In my assessment of the merits of the development application under s79C I have determined the application does not warrant approval. The determinative reason is that I am not satisfied that the DCP provision that requires compliance with the Australian Standard should be varied in the circumstances of this case. Not only are the enclosed garage spaces generally not of the minimum width but the flow-on effect of reducing the effective width of the unenclosed spaces is unreasonable and unnecessary in the circumstances of this case. The unenclosed spaces should not be compromised at the expense of the benefit of garages for certain unit entitlement owners. The development application for the use of enclosed garages must have regard to the suitability of the site for the development under s79C(1)(c ). This requires an assessment of the domino effect for the unenclosed spaces. The car park was designed as an open car park without enclosures and generally the individual spaces rely on the use of part of the width of the adjoining space, as set out in the Australian Standard. As such I have determined the site is unsuitable and the application fails. 44The Australian Standard is called up in the Development Control Plan and also the Condition of Consent refers to the car park being designed in accordance with the Australian Standard. I do not accept Mr Varga's evidence that just because people have not complained or they agree to and support the application does not justify a variation to the standard. I reject this short sighted reason to justify approval. I agree with Mr Bridgeman that future owners in a relatively newly erected building would have an expectation that the car parking spaces complied with Australian Standards. I agree with the respondent's position that the mere inconvenience created for owners of unenclosed spaces, makes the enclosed garages unacceptable and people should not expect to have to alight from a vehicle before entering their own car parking space so that the adjoining garage owner has the benefit of an enclosed garage. 45Clearly the car parking area was designed as an open car park and the side garage enclosures have the flow-on effect of the clear majority of spaces being non-compliant with the Australian Standard. Furthermore, the Development Control Plan calls up the Australian Standard and I must give central consideration and make the DCP a focal point in my assessment of the application, as required by Zhang v Canterbury City Council [2001] NSWCA 167. 46Of greatest importance in my assessment is the flow-on effects of allowing the enclosed garages and the impact this has for the adjoining spaces that would all experience a reduction in width, due to a wall erected on the boundary of a space that was intended as open to allow mutual benefit for the open car space adjoining. The car park was designed as an open deck car park, and this requires the mutual benefit of the adjoining space to be able to open a car door, in accordance with the Australian Standard. A single space within an open car park requires a minimum width of 2.4 m. However, as cited above from the Australian Standard the width is required to be increased where there is a wall erected. For a double garage this requires 2.7 plus 2.7 to provide a width of 5.4. 47In my assessment of this development application and the applicability of the Australian Standard I am guided by the judgment of his Honour Preston CJ in Telstra Corp Ltd v Hornsby Shire Council [2006] NSW LEC 133. While this judgment was in respect of the Australian Standard for the emission of radio frequency electromagnetic energy and the effect on public health and safety his Honour's comments are relevant and he states at para 98- 99 and 199: 98 It is not appropriate for a court to set aside or disregard such an authoritative and scientifically credible standard as the Australian Standard RPS3. 99, nor is it appropriate for a court to pioneer standards of its own. The Creation of new standards is the responsibility of other authorities with special expertise... 199, there is a broader policy reason for the court making its determination on the basis of reason and substantiated evidence. As Galligan notes, " A basic aspect of rational action is that facts on which decisions are founded should be supported by good evidence. Unless there is a substratum of objective evidence for the reasons and policies acted on, discretionary decisions are liable to the charge of arbitrariness ." 48In my assessment I am not persuaded by the applicant's evidence that the standard should be varied in the circumstances of this case. In this regard the DCP must be given central focus as must the DCP requirement to "provide adequate space and maneuvering". In my assessment of this application, there is no broader policy reason and I am not persuaded by the evidence of Mr Varga that I should substitute a different standard for the purpose of the assessment of this car park that was designed without enclosures. While there may be benefits to certain owners of the garages, this does not outweigh what I consider to be the public interest in the car park remaining as designed to comply with the Australian Standard. 49In my assessment, to allow the seventeen double garages, thirty-four spaces to be enclosed, would not only be a precedent in terms of the owners of other spaces within this apartment complex, but one that would be sought to be invoked by others. In saying this, it is not the precedential effect that warrants refusal of the application, but the flow on effects of adjoining car space owners that in the longer term would be burdened by those that benefit by the garage enclosures. The planning system and this includes Development Control Plans and Australian Standards, are to provide certainty in the planning process and in the circumstances of this case, a variation to the standard is not warranted and the development application does not warrant approval. 50It was agreed between the parties that the only enclosures that would fully comply with the Australian Standard for car parks and not impact on adjoining spaces are those spaces allocated to apartments number 20 and number 59. While it was agreed at the conclusion of the hearing that the Court could grant approval to some of the garage enclosures, however, in my further consideration I do not consider this is appropriate in the circumstances of this case as the car park was designed as an open car park and should operate as such for all users and this also ensures compliance with the definition of open deck car park for the purposes of the BCA for ventilation and sprinkler and alarm systems. In saying this in my assessment based on the evidence of the experts, Mr Inglis and Mr Gilchrist, the enclosure of the garages would require the necessary BCA works as it would no longer be defined as an open deck car park . 51In refusing development consent for the use of the garage enclosures, it follows that the appeal for a building certificate also fails. 52Accordingly based on my assessment above, the formal orders of the Court are: (1)The appeals in respect of the property known as number 12 Bank Street, Wollongong are dismissed, (2)The development application submitted to Wollongong City Council for the enclosure of thirty-four car parking spaces is determined by the refusal of consent. (3)The appeal under s149F of the Environment Planning and Assessment Act for the issuing of a building certificate is refused. (4)The exhibits are returned to the parties with the exception of Exhibit 4 and 5 and B and E. J S Murrell 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 June 2011