Ross v Waverley Council

Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Revised 01/10/2004; CASES CITED: Segal & Anor v Waverley Council [2005] NSWCA 310

APPLICANT Mr R Creighton, agent

LEGAL REPRESENTATIVES: RESPONDENT Mr M Staunton, solicitor SOLICITORS Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act ("the Act") against Waverley Council's refusal of a development application for a hardstand parking space and front boundary fence at the front of the subject property known as No. 8 Consett Avenue, Bondi. 2 The subject premises are located on the western side of Consett Avenue which is in close proximity to Bondi Beach. The area of the site is 223 sq m with a frontage of 6.1 m and side boundaries of about 37 m. Currently erected on the land there is a single storey semi-detached dwelling that shares a common wall with No. 6 Consett Avenue, the property to the south of the subject site. The pair of semis were built in about 1915. 3 The subject site is on the western side of Consett Avenue and is zoned for dwelling houses. On the opposite side of the street the properties are zoned for higher density development and approximately diagonally opposite the site there is an approval for a townhouse development. The western side of Consett Avenue consists of predominantly single storey semi-detached dwelling houses, some with additions for a second storey. Further to the north of the site there are a number of larger allotments with single detached houses. Many of the properties on the western side have vehicular access and parking at the front of the dwellings. The street also contains a number of large mature street trees. 4 Proceedings were conducted on site and evidence was given to the Court on behalf of the applicant by Mr Anthony Rowan, consultant town planner and Mr Aaron Sutherland gave evidence for the council as its employed town planner. A number of resident objectors also gave evidence and their original submissions are contained in council's bundle of documents. 5 The Court had the opportunity of carrying out a site inspection of Consett Avenue and adjoining streets in the presence of the parties. 6 Mr Rowan provides the following description of the site in his report. The building on the site comprises a front veranda defined by an arch feature to the dwelling with two low level plinth elements. The front setback area of the site is generally level being similar to the footway. There is a breezeblock wall to the street boundary and pedestrian entry gate. The dwelling is a single storey structure with textured render finish and tiled hipped roof with the arch of the dwelling being in painted brickwork. The external face of the dwelling is 4.6 m from the street boundary. This wall is recessed behind the veranda that is visually dominant such that the external wall of the front most room is not generally apparent within the streetscape, being effectively enclosed to view. The veranda extends forward to the street being about 3 m from the street boundary. 7 The parking on the western side of Consett Avenue and outside the subject site is angle parking while the eastern side provides for parallel parking. 8 The proposal is for alterations to the existing dwelling to facilitate provision of a hardstand parking space in the front setback area of the site. In order to achieve this it is necessary to remove the base nibs of the arched opening to the existing veranda and relocate the bedroom wall of the dwelling by about 0.87 m to enable the hardstand parking space to be accommodated within the front setback area. The archway feature of the dwelling will remain excepting for the ground portion and this will provide approximately a 2 m covered part to the parking space closest to the dwelling. The space provided has a length of about 5.6 m and a width of 2.65 m with stencilled concrete paving finish. It is proposed that the street boundary fence be rebuilt either side of the driveway with a 1 m high masonry fence. 9 The council provided a Statement of Issues. In summary the issues are:

1. Whether the proposed development is consistent with the objectives of Zone No. 2(a) 'Residential Low Density', under Waverley Local Environmental Plan 1996. 2. Whether the proposed development is consistent with the objectives of Pt 6 and Pt 9 of De velopment Control Plan No. 2. 3. Whether the proposed development is inconsistent with the objectives, design considerations and design of car parking and access provisions of Development Control Plan No. 14 and 4. Whether the proposal is in the public interest. 10 The statutory planning regime under which I must consider the development application is the Waverley Local Environmental Plan 1996 (LEP) and the zone objectives for the 2(a) Residential Low Density area includes: to allow for housing only in the form of dwelling houses and boarding houses; to maintain and improve the amenity and existing characteristics of localities predominantly characterised by dwelling houses. 11 Clause 10 of the LEP requires that, before granting consent, the council to consider that the development meets one or more of the objectives of the zone. Development that is permissible in the zone includes: bed and breakfast establishments; boarding houses; dual occupancies; and dwelling houses. 12 I note that the site is not a heritage item nor is it in a conservation area under the LEP. 13 Development Control Plan No. 2 'Dwelling House Development' also contains a number of relevant guidelines that must be given genuine and proper consideration in the assessment of the application under appeal. The design criteria for streetscape includes: C1 - alterations and additions are sympathetic to the architectural style or character of existing dwellings in the vicinity; … C4 - semi-detached dwelling house development maintains the design and integrity of existing semi-detached dwellings and ensures they visually present as pairs or groups of dwellings. 14 The objectives for 'Vehicular Access and Parking' include:

i) To ensure that off-street car parking facilities are provided in circumstances where the design and size of the proposed garage, carport or other facilities does not unreasonably detract from the appearance and quality of the dwelling-house or streetscape; ii) To maximise pedestrian and vehicular safety; iii) To minimise loss of on-street car parking. 15 The design criteria include: Design of off-street car parking spaces and driveways is sufficient to allow the spaces to be easily used by a reasonable number of vehicles and allows efficient access in a way that does not endanger the safety of pedestrians. … Garages and carports are designed so as to achieve the relevant streetscape objectives and not detract from the architectural integrity of the dwelling.

16 Development Control Plan No. 14 - Land Use and Transport contains provisions for urban design and streetscape considerations and the DCP states: the retrospective provision of off-street car parking can cause significant impacts on streetscapes, streetscape elements, building, fence and landscape continuity as well as pedestrian and cyclist amenity. The design of new developments should ensure that: the continuity of streetscapes, streetscape elements and landscaping is maintained and vehicular access does not dominate the streetscape and on-street parking supply is protected by minimising impacts of additional vehicular kerb crossings. 17 Under the heading of Design of Parking and Access the DCP states: (a) all car accommodation is to be located behind the front building line (b) No part of a building is to be altered or demolished to primarily provide car parking except where topography or appropriate building design allows. 18 Mr Rowan for the applicant states that the council has recently approved a hard-stand parking space for Nos. 4 and 10 Consett Avenue three months prior to the council refusing the subject application. He states that in both cases parking spaces are located in the front setback and also require work to the existing dwellings and removal of angle parking for vehicle access to the parking spaces on site. Mr Rowan states there has also been of similar approvals associated with semi-detached dwellings in Chambers Avenue approved under the same planning regime. 19 Mr Rowan cites the Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Revised 01/10/2004, 10428 of 2004 in that this judgment refers to consistency in decision making. The relevant paragraph he cites is 87: Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. 20 Mr Rowan considers that DCP No. 2 as it was in force at the time the application was considered by council, should apply to the subject development application and not the amended DCP that came into force 23 March 2005. 21 Mr Rowan is of the opinion that only minor alterations are proposed to the subject dwellings which will generally not be apparent in the expression of the structure compared to those approved on Nos. 4 and 10 Consett Avenue. He considers that this form of parking is characteristic of the area and this view has been expressed in a number of instances for approvals in recent years by the council. 22 A review of the council's refusal was carried out under s82A of the Act and in the council officer's report he states that: "the application… results in an adverse impact on the appearance of the existing pair of semi-detached dwellings and the streetscape. The proposal will also result in the loss of two on-street car parking spaces whilst only providing one off-street space." 23 The owner of the adjoining semi-detached dwelling at No.6 also made a submission in the s82A review process and he objected to the hardstand space "as it will adversely affect the front of the building which, incidentally, is celebrating its 90th year, having been built in1915". 24 The applicant's expert planner referred the court to numerous approvals both in Consett Avenue and nearby streets. And it is desirable to have consistency in decision making as noted in the recent Court of Appeal judgment, 15 September 2005, Segal & Anor v Waverley Council [2005] NSWCA 310. However, the Court is not bound to follow previous decisions and the following passages from the judgment should be noted: 48 It can be accepted for present purposes that the Council argued before Commissioner Watts that the principle of consistency in decision-making required him to follow and apply the decision of Commissioner Moore to refuse to sanction a breach of the retaining wall. However, a question arises as to the nature of that so-called principle and its relevance to adversarial litigation in Class 1 appeals in the Land and Environment Court. It is, in my opinion, a different concept to the practice that, as a matter of judicial comity, judges at first instance should usually follow the decision of another judge at first instance of co-ordinate jurisdiction unless convinced that that decision was wrong. 49 There is no doubt that in the area of administrative law and, in particular, the jurisprudence relating to the duty of an administrative decision-maker to give reasons for his or her decision, the beneficial effects of that duty include the encouragement of good administration generally as well as a careful examination of the relevant issues, the elimination of extraneous considerations and, relevantly for present purposes, consistency in decision-making: de Smith, Woolf and Jowell, Judicial Review of Administrative Action , 5th ed (1995), 459 [9-042]. The learned authors also observed: "Moreover, if published, reasons can provide guidance to others on the body's likely future decisions, and so deter applications which would be unsuccessful."

50. The rationale for the giving of reasons by administrative decision-makers was recently expressed in the following terms by Kirby J (who dissented in the result) in Re Minister for Immigration and Multicultural Affairs; Ex Parte Palme (2003) 216 CLR 212 where his Honour, drawing upon de Smith, Woolfe and Jowell, said (at 242 [105]) (omitting citations): " Rationale for reasons : The rationale of the obligation to provide reasons for administrative decisions is that they amount to a 'salutary discipline for those who have to decide anything that adversely affects others'. They encourage 'a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making'. They provide guidance for future like decisions. In many cases they promote the acceptance of decisions once made. They facilitate the work of the courts in performing their supervisory functions where they have jurisdiction to do so. They encourage good administration generally by ensuring that a decision is properly considered by the repository of the power. They promote real consideration of the issues and discourage the decision-maker from merely going through the motions. Where the decision effects the redefinition of the status of a person by the agencies of the State, they guard against the arbitrariness that would be involved in such a redefinition without proper reasons. By giving reasons, the repository of public power increases 'public confidence in, and the legitimacy of, the administrative process'. " 51 It is, however, important to bear in mind that this concept of encouraging consistency in decision-making is, firstly, but one of the reasons why administrative decision-makers should be required to give reasons and, secondly, is properly related to the context of administrators called upon to make what are truly administrative decisions as distinct from a judge or other judicial or quasi-judicial officer (such as a Commissioner of the Land and Environment Court) who is called upon to decide issues raised by the parties in adversarial litigation. As already noted in [40] above, the distinction between the two was emphasised by Gummow and Hayne JJ in Wang . 56 It follows from the above discussion that Commissioner Watts was neither obliged to accept the Council's submission that consistency in administrative decision-making required him to follow the decision of Commissioner Moore, nor was he obliged to refer to that decision in order to then distinguish it on its facts or to otherwise opine that it was wrong. This is not to say that it was not desirable for Commissioner Watts to have referred to that decision given the somewhat unique circumstances under which the two decisions were made: on the contrary, his doing so may well have avoided the present appeal. Nevertheless, it cannot be said that he committed an error of law in failing to refer to it. The relevance of the practice as a matter of judicial comity of a judge at first instance following an earlier decision of a judge of co-ordinate jurisdiction 64. In the present case it is apparent that Commissioner Watts considered that he could determine the Segal's application on its merits without reference to and possibly consideration of the decision of Commissioner Moore. In my opinion, no authority supports the proposition that his failure to refer to that decision constituted an error of law… The general duty to give reasons: 92 Although to follow or not follow Commissioner Moore's decision was an issue in the sense that it was an argument that was advanced by the Council before Commissioner Watts, it was not, in my opinion, a or the principal, central or critical issue the subject of the contest between the parties in the sense in which those terms are used in the authorities. This is particularly so where the principle of consistent decision- making is not, in itself, a matter which the Court was required to take into consideration pursuant to s 79C(1) of the EP&A Act. It is true that the Court was required to consider the " public interest " but the latter concerned the real principal contested issue of whether the heritage significance of the retaining wall would be unacceptably affected by the subject proposal… 95 Furthermore, I am in no way convinced that in the context of adversarial proceedings in the Land and Environment Court, there is any place for the so-called principle of consistency in administrative decision-making. As I have observed in [51] above, that concept is more appropriately applied to true administrative decision-making at the level of executive or local government. It has no application to adversarial proceedings where the merits of any particular application depend upon the facts and circumstances of the case and the substantive issues joined between the parties. .. 96 My only qualification to the foregoing, at least in the context of environmental planning, is that consistency in the application of planning principles is, clearly, a desirable objective. This has been recognised by the Commissioners of the Land and Environment Court (see [16] above) and is reflected in the planning principles articulated by Commissioner Watts in [81] of his judgment (see [15] above). In the present case, the planning principles in question were common to both appeals and were duly taken into consideration by each Commissioner. But it does not follow that a consistent application of those principles results in the same outcome. That would depend upon the particular facts of each case as well as upon the evidence called by the parties to support the outcome, based on those principles, for which each contends. This is particularly so when dealing with heritage issues such as the acceptability or otherwise of the impact of a particular proposal upon the heritage significance of a heritage item which clearly involves a value judgment of a particularly subjective kind. Commissioner Watts made that judgment in the present case and his reasons for coming to that conclusion were more than adequately expressed. 25 It is understandable that applicants expect similar applications to be determined against the same set of rules and where council's guidelines and controls are not consistently applied it is a relevant matter for the Court to take into consideration. However, the application before the Court is distinguishable from those that the applicant drew to the Court's attention and clearly the two consents on the western side of Consett Avenue are of more relevance. 26 The hardstand area at No.10 is for a hard-stand area that does not require alteration to the dwelling and it does not dominate the dwelling when viewed in the streetscape. Although one may question the extent of the impervious 6.8 apron that presents to the street. 27 The approval at No 4 Consett Avenue includes a hard-stand area in the front setback that requires minor alterations to the dwelling house to accommodate same. However, the extent of this does not interfere with the existing fabric or integrity of the dwelling. 28 It was submitted on behalf of the applicant that the proposal does not detract from the streetscape and fits in with the surrounding development. Mr Staunton submitted that on the evidence to the court the arches of the pair of semi-detached dwellings is the dominant feature and an assessment of the application must have regard to when a car is parked in the space and not in the space proposed. The arch is approximately 2.7 m in height with a width of 3.1 m. 29 Mr Staunton submitted that the impact on the dwelling was not a positive contribution in the streetscape and that the architectural integrity of the pair of semis would be significantly impacted by the provision of a parking space at No. 8. The proposal would also have the affect of the deletion of two parking spaces from the angled on-street parking. 30 I have assessed all the evidence to the Court and I have concluded that a hard-stand area for the subject premises does not warrant approval on its merits for the reason that the alterations required to the dwelling and the design of the veranda would be compromised by a hard-stand area. The parking space would result in a contrived configuration in a limited setback area that would detract from the integrity of the pair of semis and the dwelling itself. 31 Furthermore, I am persuaded by the council's evidence that the proposal would detract from the streetscape and it is not consistent with the council's planning controls as cited above but rather it is antipathetic to the council's guidelines. The extent of the alteration to the pair of semi-detached houses and the presence of a vehicle parked in the defined limited space, partly under the arch of the veranda, would not only detract from the streetscape, but the proposal does not have merit in urban design or architectural terms and therefore the application should be refused. Unfortunately for the applicant the premises do not provide the opportunity to accommodate a vehicle on-site and therefore the site is not suitable for a hard-stand area, or off-street parking. 32 On the basis of my assessment above the orders of the Court are: 1. The appeal in respect of the property known as 8 Consett Avenue, Bondi, is dismissed 2. The development application submitted to Waverley Council, as amended, is determined by the refusal of consent. 3. The exhibits are returned to the parties.

                      J S Murrell
                      Commissioner of the Court
                      rjs

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