Savage v Council of the City of Sydney

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 The Benevolent Society v Waverley Council [2010] NSWLEC 1082

DATES OF HEARING: 18 August and 5 Novembe 2010

APPLICANT Mr J Doyle, barrister

LEGAL REPRESENTATIVES: RESPONDENT Ms M Carpenter, barrister INSTRUCTED BY City Solicitor's Office

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Introduction 1 SENIOR COMMISSIONER: Lodge Street in Forest Lodge is a quite inner Sydney suburban street. It is located within the Glebe Conservation Area, an area declared under the Leichhardt Local Environmental Plan 2000 (the LEP) to be a heritage conservation area, and as the Bishopthorpe Distinctive Neighbourhood (a smaller geographic area) under the Leichhardt Development Control Plan 2000 (the Leichhardt DCP), these being determinations by Leichhardt Municipal Council within whose local government area the street was located until it was transferred, several years ago, to the City of Sydney (the Council). The street has a mix of buildings within it ranging from those that predate, from their appearance, the end of the 19th century through to several more contemporary dwellings. Two of these contemporary dwellings are of relevance in these proceedings (although one of them only by association).

2 In 2006, an old structure comprising an existing dwelling and associated outbuildings on an allotment with a frontage to Lodge Street of a little over 9 m was demolished and two contemporary terrace-style houses were constructed in its place. These two contemporary dwellings have been approved to be subdivided so that each is on its own allotment (although it would appear that that subdivision has not yet been finalised but this is not a matter to detain me in these proceedings).

3 Each of these contemporary dwellings has two full levels of living space and a third level, giving a "rooms in the roof" presentation to Lodge Street but not to the rear of the property, for the residents of each of these dwellings. Although Lodge Street falls, gently, from south to north, that being the general orientation of the street, the lowest level of each dwelling is only slightly above the pavement level of the adjacent public footpath. 4 Along the southern boundary of this property is a driveway access leading to the rear of the dwelling next to the south.

The proposal 5 The matter that is the subject of these proceedings is, in its final form, a proposal to incorporate into the front facade of the more southern of these two contemporary dwellings, a garage to enable off street parking to be provided within the lowest of the dwelling's three levels. The entrance to the proposed garage is to be by a sloped footpath crossing leading to a ramp crossing within the property created by lowering the present veranda and the creation of a slightly lowered and slightly sloping concrete slab garage for within the dwelling (displacing, primarily, the ground level bedroom presently located within the dwelling).

6 At the street boundary, it is proposed to have electrically operated gates that will, when closed, resemble a traditional terrace house style front fence. The garage opening is proposed to be enclosed by doors that will comprise four folding panels operated by a remote control, and folding toward the southern boundary. The proposal puts, in the alternative, two options for these - to be be louvred panels or translucent glazed panels. Photomontages of each of these options were provided in an attachment to the multidisciplinary joint report provided by Ms Burke, the council's planner, and Ms Marshall-McClelland, the applicant's architect and traffic/parking engineering expert. As the presentation of the proposed garage's location and its appearance in the streetscape are matters that are relevant to the principal issue raised by the council (that is what the council says is the inappropriateness and unacceptability of the proposal in its streetscape context, these photomontages are reproduced immediately below:

7 The dwelling is presently one that has a bedroom on each of its three levels so that a consequence of approving this proposal would reduce the house from a three-bedroom dwelling to a two-bedroom one but nothing turns on this.

8 The proposal also envisages, in its final form (a final form derived through the process of the hearing later discussed), that it will be one which is visitable for a person with a mobility disability to the totality of the reconfigured ground floor level, including accessibility for a person who is wheelchair mobile only, by extensive internal rearrangement at this level and the incorporation of ramp access through the front door and from the proposed garage to the interior of this level. At this point, I should note that, although there is presently not proposed to be a door between the ground floor living area and the garage and access spaces, a matter of some concern to the council, this is a matter that would have been readily able to be dealt with by condition requiring the installation of an appropriately operable doorway as it was indicated it was possible by Mr. Relf, the applicant's expert access consultant.

9 In addition, the proposal would make this dwelling an adaptable one. That is, although at present that there would not be access by a wheelchair mobile person to a bedroom level of the dwelling or from the rear deck to the rear garden, provision is made within the proposed design for a space within which to be able to install lift access within the building from the ground floor level to the first floor level where there is a bathroom and bedroom that have been appropriately modified from conventional design standards to meet the layout necessary for a person who is a wheelchair mobile only. Provision has also been made, off the north-eastern corner of the proposed extended deck at the rear of the dwelling for a lift to be able to be incorporated, should it be required by a wheelchair mobile resident of the property, to enable to access the rear garden area which is at a level a little over 1 m lower than the floor level of the living area and its adjacent outdoor deck area.

The hearing process 10 The matter was first heard on 18 August and commenced with an on-site inspection. In the course of that on-site inspection, I heard evidence from a number of residents of the locality who objected to the proposal on a variety of bases including parking, streetscape impact and what was said to be non-compliance of the vehicle access with the relevant Australian standard.

11 During the course of the site inspection a walkabout was also undertaken toward the north on one side of the street, returning on the other, in order to enable an appreciation of the streetscape and an understanding of the number, nature and location of the present off street parking spaces provided to other dwellings in Lodge Street.

12 Measurements were taken, during the course of the site view, that established, contrary to a council contention, that there would be no loss of compliant parking spaces for an 85th percentile vehicle in the area of the street, on the side of the proposal, between the present footpath crossing of the driveway immediately to the south and the next footpath crossing on the same side of the street to the north of the proposal. This arose because of the fact that, after allowing for four compliant parking spaces consistent with the relevant Australian Standard, there was a sufficient surplus of space along the footpath to permit an implementation of the applicant's proposal but not a sufficient surplusage of space to constitute an additional compliant parking space.

13 A limited internal inspection was also undertaken of the existing dwelling configuration on the ground floor level.

14 During the course of the subsequent hearing, it became obvious that there were a number of defects in the plans that were then the proposal and that a deal of revision was required to these plans. The proceedings were adjourned for sufficient time to enable these revised plans to be prepared and for further necessary evidence to be prepared with respect to them both by the applicant and by the council (if desired).

The relevant planning controls 15 The relevant planning controls are contained in the LEP, relevant provisions of the Leichhardt DCP and relevant provisions of the City of Sydney Heritage Development Control Plan (the Heritage DCP). With respect to the development control plans, the relevant portions are those that deal with the creation of parking spaces in dwellings and their presentation in the streetscape.

16 Various elements of the LEP are relied upon by the applicant and the respondent to support different propositions. The objectives of the LEP that need to be considered are as follows: 17 Objectives The objectives of the Plan in relation to housing are as follows: (a) to provide development standards to ensure that the density and landscaped areas of new housing are complimentary to and compatible with the style, orientation and pattern of surrounding buildings, works and landscaping and to take into account the suite of controls in Leichhardt Development Control Plan 2000 to achieve the desired future character, (b) …………………., (c) …………………., (d) to provide a diverse range of housing in terms of size, type, form, layout, location, affordability and adaptability to accommodate the varied needs of the community, including persons with special needs, (e) …………………..

17 With respect to the relevant portions of the development control plans, those contained in the Leichhardt DCP are contained in Part B 1.3 which reads, relevantly: B1.3 Design Element Car parking Principles Development must comply with the car parking requirements set out in Part A. Ensure that where on site car parking is required the layout and design:

· respects the quality and integrity of the streetscapes of Leichhardt; and · is safe and efficient; and · has regard to the layout, siting and use of neighbouring buildings; and · is integrated with the overall site and building design. with relevant controls being: · No on-site parking is allowed for single dwellings on one allotment where vehicular crossings disrupt the continuity of the footpath and verges and reduce on-street parking capacity. · Where garaging access forms part of the main front wall of a dwelling it must be; 1) less than half the width of the building; and 2) subordinate to the main elevational detail.

18 These provisions are accompanied by a diagram in this development control plan illustrating what is a garage door in the front facade of a terrace house that satisfies these provisions of the Leichhardt DCP. That illustration appears below:

19 Given my conclusion on the relevant provisions of the Leichhardt LEP and DCP, there is no need to reproduce the relevant element of the Heritage DCP.

The issues 20 The fundamental issues between the parties were acceptability within the streetscape and, if this were a problem (not conceded by the applicant), whether the social worth of the proposal should counter-balance this. 21 Although there were also issues between the parties : o as to whether or not it is appropriate to impose a condition of consent (proposed by the council) requiring the immediate installation of the internal lift and its extension to the uppermost level of the dwelling and to require the installation of the secondary lift to access the garden (with the applicant indicating that if this were the only inhibition to the granting of development consent, the applicant would accept those conditions); and o questions of minor adjustment to the width of the garage door opening and having the plans reflect the actual width of the proposed four elements to the garage doors rather than the present position which, if constructed, would not be capable of being closed with an 85th percentile vehicle in the garage,

the council also contended that the insertion of a new footpath crossing provided an unacceptable additional obstacle to pedestrians seeking to use the footpath on this side of the street and, in addition, that the combination of the likelihood of a vehicle entering this parking space in a forward direction and thus needing to reverse to exit the parking space, when combined with the extent of the nib wall on the southern side of the site extending to the boundary line, created an unacceptable safety risk for pedestrians.

22 Given the conclusion that I have reached concerning the fundamental unacceptability of the proposed garage doorway in the streetscape, it is unnecessary for me to resolve these other differences.

Acceptability in the streetscape 23 The Leichhardt DCP makes it explicitly clear, in the terms set out earlier and the diagram reproduced from the Leichhardt DCP that the proposed garage access does not satisfy the Leichhardt DCP. That is self-evident from a comparison of the illustration in the Leichhardt DCP and the photomontages reproduced earlier in this decision. In this regard, it is also obvious that the extent of the non-compliance with the Leichhardt DCP is not affected by which of the two door finishing options might be adopted.

24 As to the emphasis I should give to the DCP, Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a DCP in determining whether to grant development consent. From what was said in Zhang by Spigelman CJ at para 75, three propositions emerge. First, although the Court has a wide ranging discretion, the discretion is not at large and is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with the Local Environmental Plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision making process but it is not in itself determinative. 25 On one hand, the mere fact that a proposal meets the requirements of the DCP does not automatically mean that Development Consent will be granted. However, on the other hand, if a proposal does not meet the DCP's requirements, the Court may still grant consent, in appropriate cases, given a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79C of the Act.

26 I must, therefore, consider whether, in general planning terms by undertaking an assessment of this proposal, including consideration of matters of the public interest raised by Mr. Doyle, barrister for the applicant, as arising out of the proposed visitable/adaptable nature of the dwelling, there are matters that warrant considering that a departure from the provisions of the Leichhardt DCP are appropriate and the present proposal should be approved.

27 I turn, first, to describe in more detail the nature of the streetscape within which the site is located. During the course of the site inspection and the walk up and down Lodge Street, a count was made of the number of existing off street parking spaces and the nature of those spaces. The agreed position was that, on the eastern side of the street (that being the side of the street upon which the site is located), there were three off street parking places already in existence. Those places comprised: o one space well behind the front of the relevant building and accessed by a driveway at the side of the building, this being the driveway immediately to the south of the site; o one vacant allotment; and o one parking space in the front setback of a building where that building was sufficiently set back from the street that the parking space did not intrude into the fabric of the building.

28 On the western side of the street, there were six parking spaces. These comprised; o four parking spaces to the side of existing buildings; and o two parking spaces in the front setbacks but not intruding into the fabric of the building.

29 There is no parking provision of any similarity, whatsoever, with that proposed for the site.

30 Photographic evidence and an accompanying building plan were tendered for the applicant that demonstrated that, at some time after 1951, a garage had been erected on the site - this being possible as the then existing dwelling only occupied approximately half the frontage of the site.

31 It was Mr. Doyle's submission, as I understood him, that the provision of the parking space here proposed together with its footpath crossing merely amounted to reinstatement of something that had existed in the past. Whilst that might well be an answer to the council's contention, mentioned earlier, that the insertion of an additional footpath crossing would be an unacceptable interruption of pedestrian use of this footpath, I do not consider that the garage structure, being located as it was, in a fashion consistent with other existing garage or similar car parking structures presently in the street, provides any assistance. I have reached this conclusion because the nature of the access to and presentation of this proposal, in its streetscape, is entirely different from that which may have existed in the past.

32 However, given my overall conclusion, it is unnecessary to address that matter further.

33 As a consequence of the non-compliance with the express provisions of the Leichhardt DCP, I do not consider that it is necessary to consider and reach any conclusion as to the extent of non-compliance with the Heritage DCP (although I am satisfied that the proposal is non-compliant with it - that conclusion not being necessary for me to found the overall conclusions I have reached). It is sufficient, in my view, that there is no sufficient basis to set aside the provisions of the Leichhardt DCP with which the proposal was inconsistent and, thus, detailed analysis of the Heritage DCP is unnecessary.

34 Mr. Doyle submitted that the social desirability of having this development outweighed and more than counterbalanced any non-compliance with the Leichhardt DCP's provisions. In examining this proposition, I consider it appropriate to take the applicant's case at its highest and to make two assumptions in doing so.

35 The first assumption is that the condition requiring the immediate installation of the internal lift and its extension to the uppermost level of the dwelling and of the requirement to install lift access to the rear garden was imposed - thus rendering the dwelling not merely visitable and adaptable but entirely adapted. The second assumption I make for this purpose is that there is a significant unmet demand for adapted dwellings in this vicinity.

36 I accept Mr. Relf's evidence that it is desirable for a person with a mobility disability living in this building to have parking available. I also accept, on the internal operational viability of the parking space, Mr. Relf's evidence that management of the garbage bins if stored in the south-eastern end of the garage space would not restrict the utility of the space and would not constitute an unreasonable impost on domestic manageability, if so is stored, for a wheelchair mobile resident.

37 I also accept, for the purposes of taking the applicant's case at its highest, that reasonable access to and egress from the parking space can be achieved for an 85th percentile vehicle with sufficient clearance on each side of that vehicle during such turning manoeuvres as are required for entry into or exit from the parking space whether in a nose in or rear in fashion.

38 As I recently expressly held in The Benevolent Society v Waverley Council [2010] NSWLEC 1082, there can be circumstances where some departure from development controls can be justified because of a significant social imperative provided by the societal benefits to be derived from the proposed development - particularly when the setting aside of the control does not have any significant or unreasonable impact of a planning nature. I see no reason to retreat from that proposition in these proceedings.

39 However, in this instance, it cannot be said that permitting a departure from the relevant controls contained in the Leichhardt DCP is either benign or neutral in its outcome thus providing the potentiality to found acceptance of the non-compliance with the provisions of the Leichhardt DCP. A comparison of the photomontages of either option that would arise if this development were to be approved, compared to the diagram provided by the Leichhardt DCP to demonstrate what would be a compliant garage entrance in a front facade is obvious.

40 First, this proposal does not satisfy the requirement that the garage door not exceed half the width of the frontage of the dwelling.

41 Second, contrary to the second limb of the provision that requires that such garaging be subordinate to the main elevational detail, this proposed garage door would, in my opinion, dominate the presentation of this dwelling to the street.

42 The garage door is to be setback only the width of the small existing porch and would be immediately obvious to any passing pedestrian or motorist as a dominant element of the facade - not merely at ground level, in my view, but of the totality of the front facade of the dwelling. Further, although there are nine examples of off street parking in the immediate streetscape of Lodge Street, none of them presented, to the streetscape, with any similarity to that which is proposed.

43 As a consequence, although taking the applicant's case at its highest, that is that, if approved and with the imposition of the lift related conditions proposed by the council, the development will provide one additional adapted, visitable dwelling to meet part of the unmet demand for such dwellings, that social benefit cannot, on balance, be sufficient to overcome the non-compliance with the controls in the Leichhardt DCP and enabling the setting aside of this entirely alien intrusion that the proposed garage doors would provide in the local streetscape.

44 Finally, for completeness, I observe that, although the paired dwelling immediately to the north has a pair of glazed doors in its street presentation (as can be seen on the left hand of the photomontage reproduced earlier), those doors are obviously merely that and are not accompanied by a footpath crossing, sloping ramp and width of doorway that are present in the proposal. These three elements make it unmistakably clear that that which is proposed for the site is a garage rather than merely a modest door opening from a porch of a traditional terrace house nature.

Conclusion 45 For the reasons earlier set out, I have concluded, taking the applicant's case at its highest for the social worth of the proposal, nonetheless the non-compliance with the provisions of the Leichhardt Development Control Plan and the entirely alien and unacceptable presentation of the proposed garage entrance in the streetscape are not sufficiently counter-weighted by the social benefit, at its highest, to set aside the otherwise unacceptable nature of the proposal.

Orders 46 It therefore follows that the orders of the Court are: 1. The appeal is dismissed; 2. The application to modify an existing development consent to permit the construction of a footpath crossing and a garage in the ground floor of 17 Lodge Street, Forest Lodge is refused; and 3. The exhibits, other than Exhibits 2, 7 and D, are returned.

02/12/2010 - Typographical error - Paragraph(s) Judgment heading

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.