Nurmi v Waverley Council

Background and the proposal

1. The original development application was lodged with the council on 23 October 2015 and was refused under delegation on 21 January 2016.
2. A s82A review application was lodged on 22 March 2016 and considered by the Waverley Development Assessment Panel (WDAP) on 8 June 2016 and subsequently refused consent for reasons similar to the contentions in the case.
3. The plans now before the Court propose:

• Demolition of part of the front wall and all of the northern wall of the original verandah (currently used as wardrobe and access to ensuite);
• Demolition of approximately half of the main front wall of the existing dwelling;
• Retention of roof structure with structural alterations to support that structure without any external supports other than existing/ proposed new walls;
• Construction of a new northern wall to the north of the ensuite maintaining an access from the main bedroom;
• Reconstruction of the front wall further to the east of the existing wall location and incorporating a window element currently within the verandah façade; the wall to be on an alignment of 6.3m from the front boundary;
• Construction of a hardstand area within the north western portion of the site to be used for parking of one vehicle and pedestrian access to the dwelling;
• Replacement of the existing fence to incorporate new gates adjacent to the parking space and a pedestrian pathway to the south of that gate;
• Provision of a lawn area between the pathway and proposed bin store to replace existing paved area.

1. During the hearing, the applicant agreed to reduce the height of the fence to 1.2m and amend the infill panelling so that it was open rather than the proposed panelling that would prevent vision when reversing vehicles from the proposed parking space.

The planning controls

1. The site is zoned R2 Low Density Residential under the provisions of Waverley Local Environmental Plan 2012 (LEP).
2. Clause 2.3(2) requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the R2 zone are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
3. The development would be permissible with consent. The site is not listed as a heritage item or within a heritage conservation area.
4. Waverley Development Control Plan 2012 (DCP) applies to the site and there was disagreement as to whether Amendment 3 or 4 was relevant to the application. It is apparent that the Savings Provision in Part A Clause 1.6 is poorly worded however the parties agreed that whether either amendment applied, the intent of the DCP had not differed to such an extent as to affect the outcome of the proceedings. The council maintains Amendment 4 is the relevant document as it took effect on 13 January 2016 and the s82A review application was lodged after that date. The clause the subject of debate is Part C1 Clause 1.10.3 Design, subclause (c). Amendment 3 is in the following form: (c) No element of the street façade/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.
5. Amendment 4 deletes the words unless mitigating measures are taken to ensure cohesive integration of the works with the building.
6. Part B8 Transport was not amended and has the following Strategies:

• New development that generates the need for car parking should provide adequate parking on the site (refer to Table 2).
• Where it can be demonstrated that new development either does not generate the need for car parking; or that adequate alternate modes of transport are easily available, then on-site car parking may be reduced (refer to Table 2).
• 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 onstreet parking wherever possible.
• Car parking for multi storey and other large scale development (residential flat buildings, commercial buildings, mixed use buildings and the like) should be located below ground level.

1. Clause 8.4 Urban Design has an objective to ensure the provision of off-street parking is subject to considerations of urban design, streetscape and heritage conservation. The following controls apply: (a) Where off-street parking is not characteristic of the street, vehicular access from the street is not permitted. (b) Properties which have two frontages are only permitted to have one vehicular crossing to the secondary frontage only (e.g. the lane). (c) Applications involving on-site parking spaces shall indicate in the street analysis how the proposal maximises the retention of on-street parking, and retains and improves pedestrian and cyclist amenity. The street analysis must show: (i) a comparison between the current and proposed on-street parking; and (ii) adequate pedestrian and cyclist accessibility. (d) Driveways should be provided from rear lanes where possible. (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. (h) Existing natural rock faces and heritage listed sandstone walls are not to be removed for the purpose of car accommodation. (i) Entry gates and structures for car accommodation should be an open design to allow for improved security by way of street surveillance and to reduce any impact on the streetscape. (j) Vertically stacked parking is only permitted where site constraints (such as horizontal dimensions or vertical relief) prevent full provision of conventional parking. (k) Stacked parking spaces are to comply with the dimensions for individual spaces and are not acceptable for visitor parking. (l) Access ways and driveways are to enable vehicles to enter the parking space in a single movement, and to leave the space in a maximum of two turning movements. (m) The templates provided in Australian Standards must indicate the paths swept by manoeuvring vehicles and must be used by applicants to design access to parking and loading facilities. A minimum clearance of 300mm between the swept path and any building and obstruction is to be maintained.
2. Part C applies to residential development and Clause 1.6 provides specific controls for Semi-detached dwellings and terrace style development and has the following objectives: (a) Any alterations and additions to single dwelling, dual occupancy, terrace, and semi-detached dwelling developments need to visually read as an inclusive part of the existing dwelling from the streetscape. (b) Materials and detailing of design elements such as roof features, garages and car ports is to be of a high quality and reference existing architectural features.
3. Clause 1.6.1 applies to Built Form with the objective to maintain the original style, form and detail of semi-detached dwellings in order to provide cohesion between paired buildings. Relevant controls are: (a) The existing original style of the subject semi-detached dwelling is to form the basis of additions visible from the street. (b) The existing roof form is to be maintained forward of the principle ridge line with any addition located forward of the ridgeline to be secondary to the ridge and of lesser height….. (d) Alterations to front verandahs are to be minimal and to maintain the existing verandah form, detail and finish and the relationship of the verandah to the front verandah of the adjoining semi-detached dwelling.

The issues

1. The contentions in the case are whether the design of the parking space results in unacceptable streetscape impact, particularly having regard to the DCP provisions; is suitably designed to provide appropriate and practical access to the dwelling or impact negatively on pedestrian safety; will exacerbate non-compliances with front setback landscape requirements and set an undesirable precedent for future development within Knowles Avenue. In addition, the council contends the development should be refused as the proposed on-site parking space will result in the loss of one on-street parking space, thereby effectively 'privatising' an existing scarce public asset that is shared by the residents and visitors to the street. Finally, it is contended that due to the submissions received by the council objecting to the proposal that it is not in the public interest.
2. Contentions relating to the inadequate size of the parking space and quantum of landscaped area were resolved through the submission of amended plans.

The evidence

1. The appeal was subject to mandatory conciliation on 7 November 2016, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. As no agreement was reached during the conciliation phase, the conciliation conference was terminated pursuant to s34AA(2)(b) and the proceedings dealt with forthwith pursuant to s 34AA(2)(b)(i). The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.
2. The hearing had commenced on site with evidence heard from objectors to the proposal. The issues raised are summarised as follows:

• Knowles Avenue is used for overflow parking from adjacent streets;
• Will result in loss of much needed on-street parking;
• Loss of on-street garden area;
• Semi-detached housing in the whole street built in the 1930s and its character should be respected not lost;
• Safety concerns from additional driveways for pedestrians and particularly young children making their way to Bondi Beach or the nearby park.

1. Expert town planning evidence was heard from Dr G Shiels for the applicant and Ms B Chiu for the council.

Streetscape

1. Mr Shiels says there is a predominance of hardstand off-street parking in the immediate vicinity of the site referencing the decision of Fakes C in Woolf v Waverley Council [2013] NSWLEC 1170 when, in considering the term "immediate vicinity" he says the council's expert included three properties either side of the site and seven properties on the opposite side of the street. Based on that rational, he says two of the three properties (Nos 36 and 40) to the north of the site have existing hardstand car parking spaces as do two out of three to the south (Nos 44 and 48). To the west on the opposite side of the street, five of the seven dwellings present hardstand car parking spaces to the street. Adopting this interpretation, he says 9 of the 13 dwellings within the immediate vicinity of the site have hardstand off-street parking which represents approximately 69% of dwellings in the immediate vicinity. Of these 9, one has a carport structure above, built to the boundary.
2. During the hearing and at the request of the Court, Mr Shiels prepared further mapping of the entire length of Knowles Avenue and interpolated his assessment of the type of car parking spaces to reflect the hierarchy of spaces referred to in the DCP and referenced at [25]. That evidence is detailed in Exhibit G.
3. Ms Chiu takes a different view and says the sites on the eastern side of Knowles Avenue should be the primary focus of determining streetscape. On this side of the street the characteristic pattern is that only the southern dwelling in each pair of semi-detached dwellings has parking and the northern dwellings do not. The proposal for a hardstand space in the northern semi will be inconsistent with the established pattern and streetscape where the pairs of semis are designed to read as a single dwelling. The proposal for a hardstand space will not read as an inclusive part of the existing dwelling and semi pair. The eastern side of Knowles Avenue remains as an intact example of consistent and cohesive semi-detached development in the area, a streetscape she says the DCP controls aim to preserve and contrasts this with the western side of Knowles Avenue where there are a few hardstand spaces/carports forward of the building line which have not been cohesively integrated into the buildings and detract from the streetscape.
4. She says the DCP controls strongly discourage proposals like the subject application which adversely impacts the streetscape and requires alteration to the built form to accommodate off-street parking. Streetscape centric controls are reiterated though various parts of the DCP to ensure that off-street car parking, particularly forward of the building line are only permitted where they are characteristic, predominant, and reasonable in the context of the immediate vicinity of the site.
5. Ms Chiu, in her expert report, Exhibit 3, also provides a table where she summarised the lots on the eastern side of Knowles Avenue and concludes that, where parking is available on site, all but two of the twenty four sites are compliant with the DCP controls.
6. The difference between the experts is whether the fact that residents of properties with the side driveways using that part of the driveway forward of the building line falls within the DCP definition of "hardstand car space forward of the building line".
7. Mr Shiels' evidence is that it is and is the predominant form of parking in the street whereas Ms Chiu says that the use of the driveway area is not considered to be a hardstand parking area as described in the DCP and that those spaces only apply where there is no opportunity to provide parking behind the building line due to the obstruction by existing buildings on the site. Whilst residents may choose to park the vehicle forward of the building line, the remainder of the dwellings benefiting from off-street parking has the ability to accommodate compliant parking behind the building line within the side setback. In the proposal, there is no opportunity to park a vehicle in a compliant location behind the building line and thus the car space becomes dominating within the streetscape. She concludes that there is not a predominance of the form of off-street parking proposed which is taken to be hard stand parking forward of the building line within the front setback where only two of the 24 dwellings along Knowles Avenue have that form of parking. Ms Chiu identifies two dwellings as being anomalous and says both were approved prior to the current DCP controls and are inconsistent with the pattern of off-street parking on the eastern side of Knowles Avenue being the southern semi which benefits from parking.

Urban design and visual quality of dwellings

1. Mr Shiels says the proposed alterations to the front of the dwelling generally retain the appearance and proportions of the dwelling. The existing roof line will be maintained, the existing window will be included in the street elevation. The inclusion of a window in the section of the wall that is to be setback to accommodate the car parking space assists in maintaining the existing streetscape appearance of the dwelling. He cited a consent issued by the council which he says provided for similar works with the council's report stating "the proposed works are considered to retain the established character of the dwelling and its presentation to the street. The proposal retains the existing roof and front building line and the proposed location for the car parking is secondary in appearance to the dwelling the proposal is considered to present satisfactorily to the streetscape."
2. I was asked to drive past that site on the way back from Court however the development approved had not commenced. I did note that Hastings Parade contains variety of built forms and housing styles and a different streetscape to that of Knowles Avenue.
3. Ms Chiu says the proposed alterations to the front facade do not respond to the architectural style and character of the existing built environment. The semi-detached dwelling forms half of the existing building and notwithstanding the gable end addition to the front, the dwelling clearly reads as part of a semi pair to the street. The partial demolition of the front facade of what potentially was originally a sunroom type area is a prominent element of the dwelling as viewed from the street and also provides visual connectivity with the adjoining attached semi as well as the remaining semi pairs on the eastern side of Knowles Avenue. Currently, the building provides a strong cohesive facade to the street and contributes in the repetitive front side indent pattern of the sunroom area and street facing window sill heights. Any alterations, such as that proposed, to the street facade on the ground floor will destroy the established and intact streetscape patterns and original style of semi-detached dwellings.
4. Whilst Ms Chui noted that the ground floor roof form is proposed to be retained to maintain some cohesion with the existing built form, she considers this is insufficient as the part demolition to the front facade results in a loss of integrity of the existing building on the site. The removal of the existing corner feature columns and windows facing the street will result in disunity to the symmetrical form that is repeated along the eastern side of Knowles Avenue. She does not support any alterations to the front of the dwelling given that all the features are prominent elements which collectively form a unified streetscape pattern within the immediate vicinity being the eastern side of Knowles Avenue.

Design of space

1. Mr Shiels says that the proposed location of the hardstand parking would not be dissimilar to other parking in the immediate vicinity however the applicant is prepared to provide a separate pedestrian entry gate to the south of the proposed hardstand space and sliding gate. That detail was included on the amended plans, Exhibit B. Mr Shiels agreed that when the gate to the parking space was open it would slide across the proposed pedestrian gate so both could not be used simultaneously.
2. Ms Chiu says the proposed location of the hard stand space on site is inappropriate and results in a conflict between pedestrian and vehicle access to and from the site and when a vehicle is parked in the space, there is limited space for pedestrians to squeeze past the car to access the entry. She did acknowledge that the dimensions of the parking space satisfied the Council DCP requirement and that the proposal to introduce a pedestrian gate was an improvement to the original proposal.
3. The experts agree that the proposal will result in the loss of one on street parking space which Mr Shiels says it is consistent with the DCP provisions, 31of 48 dwellings in Knowles Avenue, or approximately 65%, currently have off-street parking some having more than one space resulting in 44 off-street car parking spaces for 48 dwellings in Knowles Avenue. As such he says the demand for on street parking would be limited to 17 dwellings and based on his observation, replacing one on street car parking space with an off-street car parking space at the site will still allow ample off-street car parking for residents of the remaining 16 properties with no off-street parking. He does not consider that parking stress in Knowles Avenue is due to the location of the nearby pocket park observed by the Court and referenced a consultation report and survey undertaken in relation to a proposal to upgrade the reserve prepared in October 2015 by the Council noting that 9 of 10 online respondents walked to the park whilst 1 of 10 cycled.
4. Ms Chiu acknowledged the loss of only one on street parking space complies with the council's controls however says that the DCP states that reduced parking rate or no parking may be required in circumstances where parking will have a detrimental impact on the streetscape character and there is low on street parking availability and no net car parking public benefit (cl 1.11.1(b)). She says there is no net car parking public benefit as off-street parking gives exclusive access to the resident while decreasing on street supply and making it difficult for other residents and visitors to the street to find on street parking, in effect privatising parking whereas on street spaces are shared by all potential users.
5. In relation to precedent, Mr Shiels says the proposal would not create an undesirable precedent for Knowles Avenue because off-street hard stand car parking is the predominant form of parking in the immediate vicinity of the site and the proposal would be consistent with the existing parking provision. Any future application for off-street hardstand car parking would need to be considered on its merits.
6. Ms Chiu says because the proposal is inconsistent with the controls and intentions of the DCP for provision of parking for semi-detached dwellings, approval of the car space will undermine its application to future proposals. Approval of the parking space would set an undesirable precedent within Knowles Avenue especially on the eastern side of the street where the site is located and will destroy the consistent streetscape side setting a negative precedent for all other northern dwelling of the semi pairs to seek approval for a similar hard stand car space. That will lead to a cumulative degradation of the streetscape not just for the semis on the eastern side of Knowles Avenue, but also for the remainder of the street where the integrity of the semi-detached dwelling form, on street parking and landscaped setting will be eroded by the number of adjoining properties seeking similar parking spaces.

Conclusion and findings

1. Having regard to the evidence, it is apparent that the difference between the planning experts is whether there is a predominance of parking forward of the building line of the existing dwellings and whether the proposed demolition and alterations to the semi-detached dwelling will adversely affect the streetscape.
2. The site view was particularly informative in assessing the existing streetscape and also my determination of what, in the circumstances of this case, would be the immediate vicinity of the site.
3. In this regard, I consider that the entire length of Knowles Avenue is the relevant assessment point. That is because the street is visible from one end to the other and development is consistent in style, siting and form. Whilst I accept that individual property owners have added their own differentiating features in the terms of selection of colours which they have painted their dwellings, window treatments, fencing form and landscaped treatment, the original built form of the semi-detached housing remains. Where second storeys have been added, these sit behind the verandah and main front wall of each dwelling. On the east side, driveways remain along the southern side of the southern dwelling pair and on the western side it is the reverse situation with the driveways to the north of the pair. The pattern of development is consistent and intact.
4. I do not accept that the fact that residents may choose to park their vehicles at the front of the site alters that pattern. That has the effect of introducing a hybrid version of the three parking locations as defined in the DCP rather than morph into one of the three styles anticipated. For these reasons, I cannot conclude that there is a predominance of hardstand parking forward of the dwellings in the immediate locality of the site, nor is it characteristic of the street.
5. Nor am I satisfied that the retention of the roof and the necessary introduction of a large cantilevered ceiling space in that area where part of the dwelling is to be demolished would ensure the cohesive integration of the works within the building. That is because the entire street still contains buildings which retain the original verandah and dwelling form with the exception of only one or two. I do not consider that the alterations proposed would be visually read as an inclusive part of the existing dwelling from the streetscape or are minimal and maintain the existing verandah form, detail and finish and the relationship of the verandah to the front verandah of the adjoining semi-detached dwelling.
6. Whilst the DCP must be flexibly applied, it must remain the focal point of my determination and I consider its objectives and strategies are not achieved by the proposal before the Court. Nor is the design intent of clause 1.11.3 met despite the fact that the numerical requirements for the size of the parking space satisfy the controls.
7. For these reasons, I find that consent should not be granted.
8. The Orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 474/2015 for demolition and alterations to an existing semi-detached dwelling façade and setback to form a hardstand car space at 42 Knowles Avenue North Bondi is refused consent. 3. The exhibits, other than exhibits B and 5, are returned.

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Sue Morris Commissioner of the Court

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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: 18 November 2016