Monaghan v Holroyd City Council

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Holroyd Local Environmental Plan 1991 Holroyd Development Control Plan 2007

APPLICANT Mr M. Turnbull, solicitor of Mark Turnbull & Co. LEGAL REPRESENTATIVES: RESPONDENT Mr G. McKee, solicitor of McKees Legal Solutions

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10574 of 2008 Peter Francis Monaghan v Holroyd City 10575 of 2008 Council

JUDGMENT 1 This is four Class 1 Appeals in regard to s 96 amendments and appeals against orders under s 121(B) of the Environmental Planning and Assessment Act 1979 in regard to two properties at 192 and 194 Girraween Avenue, Greystanes.

2 Appeals 10574 and 10575 of 2008 are in regard to refusal by council of two s 96 applications in respect of the above properties for changes to landscaping and paving within the front setbacks.

3 Appeals 11315 and 11316 of 2007 are in regard to orders issued by the Council in respect of each property the orders being the same namely: "To comply with development consent and remove all fill retaining and concrete works which are not in accordance with the approved plans. In this regard the approved plans show only a double width concrete driveway from the front boundary widening to a double garage and a new dwelling. No additional filling retaining and concrete works are shown to the front or side access areas". 4 Appeal 11315 of 2007 relates to No. 194 Girraween Road and development consent 2005/562. Appeal 11316 of 2007 relates to No. 192 Girraween Road and development consent 2005/561. The orders under s 121(B) were issued on the 30th November 2007.

5 Arising out of those orders the applicant filed the s 96 amendment applications which had been subsequently refused. Appeal 10574 of 2008 relates to No. 194 Girraween Road and Appeal 10575 of 2008 relates to 192 Girraween Road.

6 I might note that in this case the council is the principle certifying authority for both developments. Therefore the council is in the interesting position of being unable to issue an occupation certificate to the dwellings, although they are currently occupied, because of the constructions not in accordance with the development consents. At the same time the council is having to act as the Local Government Authority and prosecute the applicant for those non compliances. In addition council has the role of considering the s 96 applications which seek to overcome the orders. 7 Attending for the Council was: - Mr G. McKee, solicitor; - Mr C Manche, tree management officer; and - Mr T Morris, senior development engineer and - Mr A. Shahi, civil engineer; 8 Attending for the Applicant was: - Mr Flanagan, solicitor; - Mr Layman, town planner; - Mr Wallace, civil engineer; - Mr Cleverley, solicitor and - Mr Monaghan, Applicant. 9 The parties agreed that the order of proceedings should be to deal with the s 96 applications and depending on the outcome of them deal with the orders. In the case of the s 96 applications the reasons for refusal became the issues between the parties and the reasons for refusal are, except for direct references to the individual properties, the same in each case and they are as in Exhibits 1 and 2. 10 A summary is: - The council has concerns about whether there is completion of stormwater drainage in accordance with the consents. - In terms in streetscape impact the council says it is unsatisfactory because the proposal has large areas of paved concrete and planter boxes or planter garden areas with raised masonry walls in the front setback. - The paved areas both in the front and side setbacks mean both developments fail to achieve the minimum landscaped area of 1/3 the total site area. - Both developments do not achieve the minimum area of soft landscaped private open space exclusive of paved areas. - The proposed changes to vehicle access to each site are inpractical and contribute to the unsatisfactory streetscape impact. 11 The minimum landscape area of the front setback had not been complied with and the applicable Development Control Plan requires no more than 40% of the front setback area (or 33.3% where a single driveway proposed) shall be paved and sealed inclusive of the driveway.

12 As built the front setbacks of both properties are 100% paved with stippled concrete paving plus a retaining wall about a metre high and a set of steps giving access between the properties. The retaining wall is not on the common boundary it is set about 1.5 metres within No. 192. However the pavement of the front and side yards of No. 194 extends across to the top of the retaining wall and is clearly for the use of No. 194 although there is no easement or right of access included in the original consent or as subsequently proposed. 13 The development is two detached dwellings on separate Torrens Title lots.

14 As background to the appeals , the parties agreed that the orders had stipulated the removal of this retaining wall which extends almost the full depth of the allotments and has concrete paving along the entire north side of No. 194 across the boundary with No. 192 by about 1.5 metre as previously mentioned.

15 No. 194 was designed to have a wide courtyard on its northern side boundary giving good solar access to its living rooms and kitchen areas. The approval shows about 40 square metres of pavement to the courtyard soft landscaped area to the rest of the side setback about 30 metres x 4 metres. As built, it is all concrete except for a small section at the rear. 16 No. 194 and 192 are mirror reversed designs so that No. 192 has a similar indented courtyard exactly matching that of No. 194. However the courtyard of No. 192 is on its southern side. This means in effect that both private open spaces are directly adjoining one another and having no boundary fence between they were not private. Living room and kitchen windows of both properties directly face into the courtyards and each other.

17 The council noted that the s 96 applications made no proposed amendments to the approved development consent between the front facades alignment of the each house and their rear boundaries. Therefore the council had assumed that the applicant would comply with the orders to remove the retaining wall and pavement and install a privacy fence on the common boundary and create garden beds on either side of the common boundary as provided for in the both approved consents. 18 At the hearing the applicant said the intention is to seek the dismissal of the orders so that the "as built" structures remain. The only proposed changes are as in the s 96 applications within the front setbacks of each property.

19 Those s 96's could be summarised as retaining the existing full concrete paving to both front yards, but creating on top of them adjoining each side boundary, planter boxes enclosed in new masonry walls to be erected on top of the existing concrete to create some green areas within the front setback.

20 A front fence about 5.5 metres long on each property would be erected either side of the common boundary at the street front. The concrete paving along the remainder of each frontage would be kept and be about 11 metres wide. 21 I note that the council's applicable DCP says that the maximum driveway width shall be 5 metres at the street boundary. The planter troughs would reduce, in the applicants submission, the amount of paved area to 49% of the front set back when the applicable development control plan requires 40%.

22 Another component of the original consent is that for each double garage there is a direct driveway from new footpath vehicle crossings from the street straight across into the garages. The approved driveway crossing across the footpath is shown 4 metres in width but then widening out to provide access to the double garage and the front door of each dwelling. The remainder of the front setback in each case is approved with deep soil garden areas with vegetation as in the approved landscape plans. 23 The proposal in the s 96 amendments in each case intends to use the existing footpath crossings from Girraween Road, which are actually in each case on the opposite side of the allotment to the garages as built. Therefore any car coming into or out of the double garages needs to drive diagonally across the front yard of each property and then turn into relevant garage. This means in the case of the garages closest to the existing vehicle crossings that a full lock S turn has to be executed both driving in forward or reversing out. The garage furthest from the existing vehicle crossing in each case has a more difficult manoeuvre that requires a 3-point turn going in, and 3-point turn coming out for the 85%-ile sized vehicle such as a typical Holden Commodore or Falcon. In both cases the furthest garage has a separate door so the car has to avoid a masonry pillar within the approach and departure route. The garage door is 2.4 metres wide.

24 The planter troughs constructed with the masonry walls on top of the existing concrete slabs need to be kept clear of the building so that water would not enter the cavity walls through the weep holes which are flush with the concrete paving. The off set allows water to flow off the pavement and around to the side of each building following the pavement to the rear.

25 The s 96 plans for the front setback do not show the existing retaining wall that is built 1.5 metres into No. 192 from the common boundary. I asked the applicant if it is intended to demolish that wall, and I was told it would remain such that there would be a step in the troughs at that point. In cross examination it was shown that Planter No. 2, as it is referred to, being the planter adjoining this retaining wall on No. 194 (crossing the common boundary with No. 192) would have very shallow soil in it with the existing concrete paving beneath. The other planters would be able to have soil in them between about 600 mm and 1 metre deep. 26 During the hearing Mr Shahi and Mr Layman gave evidence in regard to the 3-point turns necessary for vehicles entering and leaving as referred to above. During this, each of them had a turning template derived from Australian Standard 2890. During the evidence the two templates were compared and it was found that Mr Layman's template was undersized to use on the 1 to 100 scale plans and would show easier manoeuvring than reality. He said that the template had been provided to him via the plan drawer and he had not checked it for accuracy.

27 Mr Shahi in applying his template said that whilst it would be possible for vehicles to make the 3-point turn both going in and going out, it would be a very difficult manoeuvre at full lock turns with almost no clearances. It would be a much poorer outcome for vehicle access to both properties than the approved driveways that go directly from the kerb crossing to the garages. 28 Mr Layman counted that the templates are for the 85%-ile vehicle, and the second car in any household is not likely to be a full size Commodore or Falcon and therefore would have easier access, and could use the furthest garages.

29 The respondent had provided to the applicant plans showing alternative layouts for the front setbacks that are not quite the same as the approved ones but they do provide for the direct driveways of the original approval and deep soil planting areas to the front and side yards by the removal of parts of the existing concrete paving. Therefore it could be said that the respondent had some flexibility in its consideration of the s 96 applications in that it did not require full reversion to the "as approved" plans.

30 In regard to the landscape plans in the original approval the applicant provided no amended landscape plan for the planter beds and because of the different configuration it was clear that it was not possible to provide the same landscape layout. Mr Layman said that he thought it is unnecessary to provide a landscape plan for detached individual dwellings and it is really only designation of the vegetated areas that is necessary. The respondent said nevertheless the landscape plans are part of the original and existing consent conditions. 31 In regard to the subject plans I might say that even during the Hearing the applicant was providing more plans in order to properly explain the proposal. The final plans only arriving at the Hearing midway through it. Nevertheless, council did not object to their consideration. Also the council had received reports from Mr Layman and Mr Wallace only the night before the hearing and did not object to them. The applicant complained that the respondent had provided no evidence in written form. However, it was agreed between the parties not to let those matters be an obstacle to hearing of the oral and/or written evidence and a determination of the appeals.

32 The engineers Mr Wallace and Mr Morris conferred in regard to the stormwater drainage concerns and produced in Exhibit F draft conditions that could be applied either to the s 96 applications or the orders to resolve those concerns to both parties satisfaction. 33 Part of the engineers agreement on stormwater collection and disposal had to do with the pitching of the pavement on No. 194. Water goes to the north and onto No. 192. The stormwater flows over the top of the retaining wall and down onto the paved side setback and courtyard of No. 192. In order to avoid potential neighbour conflict the council required that a waterproof kerb be installed about one metre inside No. 194's northern boundary. This would direct the storm water to the rear without going on to No. 192 so that it could be absorbed into the ground in the small area of deep soil left on the property adjoining the rear boundary.

34 The council also sought that the pavement between this kerb and the retaining wall be removed so that landscaped area can be provided on both No. 194 and 192. This would provide softening and screening of one development to the other. A dividing fence on the common boundary for privacy would also be needed. 35 Also it was clear from the inspection on the site that the overflow stormwater from the detention tank on No. 192 had never been connected to the street as the approval required. Mr Monaghan said that the necessary pipes had been installed from the detention tank to the front boundary because he had seen them there. However, the connection had never been made across to the kerb. The engineers agreed that the existence of those pipes should be verified and if they did not exist they should be installed and the connection to the kerb in Girraween Road made.

36 In the case of 192 Girraween Road the area of pavement just in front of its garage could not be drained to the street and the council had allowed a pipe to be laid to the rear of the property to include a soakage trench for its disposal. There is a need to verify that the connection had been made to the soakage trench and that is appropriately sized for the run off it would receive. Also it is necessary to prepare work as executed drawings to show the "as built" construction as required by the development consent before an Occupation Certificate could be issued. 37 In coming to a conclusion on these matters I had regard to the streetscape appearance of the development as it would be if the s 96 application were to be approved versus the original consent that I must compare it to. It is my conclusion that the provisions of the applicable development control plan are both reasonable and specific in requiring the maximum 40% of the paved area in the front yard and the remainder to be landscaped area in order to maintain the residential setting of the development and character of the Zone 2(a) locality. It seems to me that although the applicant has offered to drill the concrete paving in places beneath the planted boxes in order to provide some drainage it would mean de facto that the front setbacks and side setbacks of both developments remain completely concrete paved and that does not fulfil the objective of having deep soil planted areas on residential allotments wherever pavement does not exist. 38 The long term viability of any vegetation in the planter boxes is in doubt as given in evidence by Mr Manche and he is the only expert horticulturalist before me.

39 Added to this is the difficult manoeuvring of vehicles into the garage compared to the simple and easy solution contained in the council approval. One could say that the complicated manoeuvring pattern for cars to get into the garages only serves to reduce the amount of concrete that might have to be taken up rather than comply with the current development consent. 40 As Mr Shahi pointed out it is quite difficult manoeuvring at full lock including for one garage in each development a 3-point turn both coming in and reversing out. That is most undesirable in residential situation even if it is possible.

41 The current approval is a much better outcome both in streetscape terms because of its result increased landscaped area within the front setback and the simplicity for the drivers of cars wanting to enter and leave the property. The councils contention of the difficulty of manoeuvring would only encourage persons to part in the street rather than use the garages has some creditability.

42 I have concluded that the s 96 applications in both cases should be refused for the reasons contained in the respondents evidence that show non-compliance with the number of specific provisions of the applicable Holroyd Development Control Plan 2007 in the Residential 2(a) zone under the Holroyd Local Environmental Plan 1991. 43 It seems to me the appropriate procedure is to formally dismiss appeals in regard to the s 96 applications and defer decision on the appeals against the councils orders under s 121(B) to enable appropriate conditions to be formulated given the councils indication of some flexibility on the ultimate works needed to satisfy its statutes and controls.

44 Therefore the orders of the Court are: 1. Appeal 10575 of 2008 and Appeal 10574 of 2008 are dismissed. 2. Orders in regard to Appeals 11315 and 11316 of 2007 are deferred for 30 calendar days from the date of this judgment to allow parties to negotiate any amended conditions to the orders including those in Exhibits F of these proceedings. 3. The parties shall within the 30 days either agree wording to be forwarded to the Court in writing or shall make separate written submissions on any amendments to the orders for my consideration prior to final determination of those appeals.

          K G Hoffman
          Commissioner of the Court
          ljr

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