Spence v Waverley Council

[2021] NSWLEC 1214

Land and Environment Court (NSW)|2021-03-31

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2021-03-31

Catchwords

[2002] NSWLEC 75 Zhang v Canterbury City Council (2001) 115 LGERA 373

Source

Original judgment source is linked above.

Catchwords

[2002] NSWLEC 75 Zhang v Canterbury City Council (2001) 115 LGERA 373

Judgment (19 paragraphs)

[1]

Judgment

COMMISSIONER: This appeal concerns a proposal to provide an off-street car parking space to a dwelling house on the corner of Newland Street and Keiran Street, Bondi Junction.
The development application (DA-167/2020) seeks approval for the following development: 1. The partial demolition of the side fence along Keiran Street; 2. The construction of a sliding timber gate; 3. The construction of a hard stand car parking space measuring 5.4 m by 2.4 m at the rear of the site with access from Keiran Street; and 4. The construction of a new driveway and crossover through the grass verge to Keiran Street, including excavation into the verge to assist in levelling out the driveway and crossover.
The appeal was subject to mandatory conciliation on 30 March 2021, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached in the conciliation, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the appeal proceeded to a hearing.
The principal contested issues relate to the impact the proposed development will have on the streetscape of Keiran Street and on the Conservation Area. For the reasons given below, I have concluded that those impacts are unacceptable and consequently that the development application should be refused.

[2]

The Site and it's locality

A site view was conducted at the commencement of the hearing. The site is described as Lot 2 DP 227226 and is known as 75 Newland Street Bondi Junction (the Site). The Site is on the corner of Newland and Keiran Streets. While the primary frontage of the Site is to Newland Street, the proposed development is on Keiran Street.
The Site is rectangular in shape. It is 5.11 m wide at the front and slightly wider (at 5.64 m) at the rear. It is 36.64 m long on the Keiran Street frontage. The Site has an area of 188 m2. It is occupied by a single storey, 3 bedroom semi-detached dwelling. The Site currently has no vehicular access.
The proposed driveway will comprise two concrete strips 1200 mm wide within a 3 m wide corridor. Due to the slope of the verge, some excavation will be required and this will result in a batter 1.5 m wide on the western side and 2.5 m on the eastern side. The cut will be 495 mm deep at its lowest point. The evidence is that there will be a need to excavate between 7 and 12 tonnes of material to be able to construct the driveway.
The locality is characterised by a variety of closely spaced, predominantly attached, residential development including terrace houses, semi-detached and detached dwellings. A feature of dwellings in the locality is the general absence of on-site car parking accommodation. The only driveway, and the only off-street car parking, currently in Keiran Street is associated with the two-storey shop-top housing building on the opposite corner.
During the view, the Court was shown other examples of crossovers and driveways servicing residential premises at 92 Walter Street, 102 and 104 Newland Street.
The topography slopes to the south across Keiran Street so that the properties on the northern side of the street are elevated above the street and those on the southern side are located at street level. A dominant feature of Keiran Street is the wide verge on the northern side which is grassed, with regularly spaced street trees and a concrete footpath at its highest point. There are two narrow concrete footpaths connecting the street to the main footpath further down Keiran Street from the Site.
A satellite image of the Site and its surrounding development is provided below (source: NearMaps).

[10]

Mr O'Donnell

Mr O'Donnell gave evidence that currently within the northern side of Keiran Street, there are two concrete pedestrian pathways that travel up the verge from the street to the main footpath (outside 3 and 9 Keiran Street). He says that the proposed driveway will also comprise two concrete strips, narrower than the existing pedestrian pathways which already cross the verge further to the west and which are fully integrated into the verge by careful, gentle, grading. In his opinion the proposal is in keeping with the context of the streetscape as the topography of the street, and verge, will continue to slope from north to south.
In addition, Mr O'Donnell points out that the pattern of housing within the streetscape will not be impacted by the proposed development. The existing street trees are to be retained and are not impacted by the proposal. No other properties within Keiran Street on the northern or southern side will be capable of accommodating car parking in accordance with Australian Standards minimum dimensions and therefore no precedent would be set as a result of the approval of the proposal. Furthermore, as the northern side of Keiran Street is located within a Heritage Conservation Area, should any future proposal from these properties seek to alter their front facades to accommodate car parking on their sites, he considers it is highly unlikely that Council would support such proposals in order to preserve the character and appearance of the Heritage Conservation Area.
Mr O'Donnell's evidence is that driveways are not a predominant feature of Keiran Street because it is typically only those properties situated on the corner of Keiran Street that are able to accommodate on-street parking in the manner proposed. Only the subject property and 77a Newland Street have their primary street frontage facing Newland Street. All other properties along Keiran Street have their primary frontage facing Keiran Street, and therefore do not have the same development opportunity that is available to the subject property. The property at 92 Newland Street located on the south eastern corner of Newland Street and Walter Street, diagonally opposite the site, has a driveway off Walter Street. It follows, he says, that three of the four corner properties at the intersection of Newland Street, Keiran Street and Walter Street have driveways facilitating direct access to the rear of the property from the secondary street frontage.
Mr O'Donnell acknowledged that the nature verge is wide and is a feature in Keiran Street but points out that the addition of two narrow concrete strips will not impact upon the width of the nature strip and, in his opinion, will have minimal visual impact on the appearance and character of the nature strip.

[11]

Ms Johnstone

Ms Johnstone gave evidence that one of the key elements that make up the streetscape character of Keiran Street is the unusually large landscaped grass verge located along the northern side of the street. She points out that there are currently no driveways or crossovers that interrupt the grass verge. Ms Johnstone says that the proposed driveway and crossover are located in a highly visible area that will be easily viewed from Newland Street, Keiran Street and Keiran Lane. While she agrees with Mr O'Donnell that there are strips of concrete located further along Keiran Street, she points out that these are pedestrian footpaths and contribute to the pedestrian use of the area. In her opinion, they are not highly visible from Newland Street, Keiran Lane or Keiran Street. Ms Johnstone's evidence is that the construction of the proposed concrete driveway would interrupt the existing large landscaped verge for private use and interfere with the use of the verge by pedestrians. As the grass verge is not currently interrupted by a crossover or driveway, the proposal will, in her view, impact on the overall view, rhythm and character of the landscaped area and streetscape.
Ms Johnstone agrees that there are examples of existing crossovers and driveways in the immediate area located at 77a Newland Street, 92 Walter Street, 102 Newland Street and 104 Newland Street. (I note that the property Ms Johnstone describes as "92 Walter Street" is the property on the corner of Walter St and Newland St which is referred to by Mr O'Donnell as 92 Newland St). She says, however, that these are not comparable to the proposed development: 1. Unlike the proposed development, the properties at 102 and 104 Newland Street have parking access from the front of the property to a hard stand parking space located within the front setback; 2. Ms Johnstone agrees that the properties at 77a Newland Street and 92 Walter Street (sic) share similar characteristics to the Site in that they are also corner sites which have parking access from their side street into the rear of each property. However, neither property has a boundary that directly abuts the front yard of an adjoining property and neither faces a steep sloping landscaped verge.

[13]

Mr Phillips

Mr Phillips says that the character and significance of the Conservation Area must first be established. These are, in his opinion, provided by the listing sheet for the Conservation Area and he says there is no mention there of grass verges and street planting being significant characteristics of the Conservation Area. Altering the grass verge and fence in the proposed manner will, on his evidence, have no impact on the ability to understand the following key characteristics as identified by the listing sheet:

the sloping topography of the area;
the street grid pattern and the pattern of narrow fronted deep allotments;
The late nineteenth/early twentieth century one and two storey, attached and semi-detached housing that characterises the area;
The treatment of side elevations of corner properties. The area will continue to be readily understood as a place of late nineteenth century/early twentieth century housing laid out in subdivisions of that period.

Mr Phillips identified the following as the key characteristics of Keiran Street:

The topography that slopes to the south across the street so that the properties on the northern side of the street are raised above street level and those on the southern side are located at street level.
Closely spaced, predominantly attached, housing stock dating from the early nineteenth century. The degree of integrity varies. As a corner block, No. 75 Newland Street is distinctly different in character to the remainder of the properties on this side of Keiran Street, which have a strong and consistent front setback and present their front elevation to the street. No. 75 Newland Street is built on its Keiran Street boundary and presents a side elevation to the street.
The wide verge on the northern side of the street, with regularly spaced street trees and concrete footpath. Two concrete paths travel up the verge from the street to the main footpath.
The narrower verge on the southern side of the street with less regularly spaced planting and concrete footpath. There is a substation, opposite the subject site, on the verge and the entrance into Keiran Lane.

Mr Phillips points out that the property on the opposite corner of Keiran Street and Newland Street, known as 77a Newland Street, has a driveway off Keiran Street. This, he says, establishes a precedent for a driveway off the corner properties on this side of Newland Street. He also says that the property on the south eastern corner of Newland Street and Walter Street, diagonally opposite the site, has a driveway off Walter Street (No. 92 Newland Street). In other words, two of the four corner properties at the intersection of Newland Street, Keiran Street and Walter Street have driveways running into the rear of the site from the secondary street frontage. The third corner property has access from a rear lane. These existing driveways, in Mr Phillips opinion, sit comfortably within the Conservation Area.
Given the key characteristics identified by Mr Phillips above at [39] above, his evidence is that the proposed works will not intrude into the streetscape because the topography of the street and verge will continue to slope from north to south and the pattern of housing will not be impacted upon. In his opinion, the proposed driveway will comprise two concrete strips similar or narrower to the existing footpaths that already cross the verge further to the west, which are fully integrated into the verge by careful, gentle, grading. Finally, he points out that the street trees are to be retained and will not be impacted upon by the proposal.

[14]

Mr Brady

Mr Brady gave evidence that one of the key characteristics of the Conservation Area is the predominance of wide streets, often comprising narrow road pavements with substantial verges, arising from enactment of the Width of Public Streets and Lanes Act 1881 which required streets to be a minimum of 66 feet (20.1 m) in width. Cross streets cut into the south sloping topography addressed the slope through embankments, stepped retaining walls and, in some locations, exposed rock shelves to the upper side and relatively level verges to the lower side. His evidence is that the resulting verges were notably planted with street trees introduced during the Depression Years of 1930 to 1936.
According to Mr Brady, the distinctive pattern of raised landscaped verges accommodating the existing sloped topography, remains a key element of streetscapes in the Conservation Area. The construction of these verges, he says, is a distinctive aspect of the Conservation Area accommodated in the Statement of Significance as: "The 19th Century subdivisions of the initial grants and the related construction - provide significant examples of late 19th and early 20th Century residential streetscapes."
Mr Brady acknowledges that there is no specific mention in the listing sheet for the Conservation Area of grass verges and street planting but says that these are included in the reference to "related construction" in the passage set out above.
Mr Brady's evidence is that the width and consistent form of the northern verge to Keiran Street is a notable example of the streetscape elements defining the Conservation Area. He says that the current landscaping maintains the form and detail evident from at least the 1930s. In his opinion, the location of a concrete footpath abutting property front fences and the limitation of paths crossing the verge to the two narrow concrete paths set flush with the grassed verge evident in a 1943's aerial image has maintained and enhanced the uninterrupted grassed embankment as a park like element rather than a conventional road verge.
It is his evidence that the verge on the northern side of Keiran Street remains the most notable example of the verge formations established in conjunction with the early 20th Century residential areas of the Conservation Area. The construction of a concrete driveway, whether as the concrete runner strips as proposed or other form of pavement located approximately a third of the street length along the existing verge, will in his opinion have a substantial visual impact on the continuity of the landscaped verge.
Mr Brady's evidence is that comparison with the narrow verge to the southern side of Keiran Street emphasises the quality and significance of the northern verge both "as an exemplary demonstration of the streetscape elements defining the Conservation Area" and also "as a notable element of visual curtilage to the consistent semi-detached Federation residences on the northern side of the street. Interrupting the form and detail of the existing verge will, in Mr Brady's view, not ensure or enhance the character and significance of this notable streetscape element or the Conservation Area.

[16]

Streetscape and visual impact

The grass verge on the northern side of Keiran Street is an important component of the streetscape. It is approximately 7.7 m wide (measured from the kerb to the edge of the footpath) and its elevation above the road pavement makes it a prominent part of the view down Keiran Street. No property on the northern side of Keiran Street currently has on-site car parking and there are consequently no driveways at all on the northern side of the street. The grass verge therefore currently provides an unbroken landscaped area for its full length.
The construction of the concrete driveway proposed by the applicant would, the Court finds, unreasonably impact on the streetscape of Keiran Street by the introduction of a visibly different and uncharacteristic element to the existing streetscape. The Site's location at the entry to Keiran Street would mean that the driveway will be visible to anyone entering and exiting Keiran Street, including people using Keiran Street to access Keiran Lane. While the driveway is likely to also be visible to some extent from Newland Street, the Court finds that the more significant impact will be experienced by people going in and out of Keiran Street itself.
The Court is required to consider the provisions of the DCP in determining the development application: Environmental Planning and Assessment Act 1979 (EPA Act), s 4.15(1)(a)(iii). The proposed development is inconsistent with a number of controls contained in the DCP. While these inconsistencies are not, of themselves, determinative, the provisions of the DCP should be a fundamental consideration and a focal point in the exercise of the discretionary power of the Court, in carrying out the role of the consent authority, to determine whether development consent should be granted, and if so on what conditions: Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 at [75].
The role of the DCP in the Court's consideration of the application was explained by Gray C in Donnellan v Armidale Regional Council [2018] NSWLEC 1372 in the following terms: "50 Firstly, the Court, in carrying out the functions of the consent authority, is bound by the provisions of s 4.15 of the EPA Act and therefore required pursuant to s 4.15(1)(a)(iii) to give the ADDCP 2012 consideration. In accordance with the decision of Spigelman CJ in Zhang v Canterbury City Council, this means it must be a "fundamental element" in or a "focal point" of the exercise of the Court's discretion in determining whether to grant development consent. 51 Secondly, that it is not a statutory instrument or an environmental planning instrument does (not) preclude it from being given weight. What it instead means is that a development control plan cannot mandate refusal of an application. Instead, it is an instrument that guides the consent authority in the exercise of their discretion. That is, a development application can be refused on the basis of failure to comply with the objects and controls of a development control plan, not because the development control plan mandates its refusal but because the discretion of the consent authority can be exercised in accordance with the development control plan to do so. It is this exercise of discretion in accordance with the plan that achieves the consistency in decision-making referred to by McClellan J in Stockland Development Pty Ltd v Manly Council (at [87])."
I respectfully agree with Commissioner Gray that, while a development control plan cannot mandate refusal of a development application, the failure to comply with its controls and objectives guides the consent authority in the exercise of its discretion.
Control 2.3(a) of Part C2 of the DCP provides: "(a) New development should be visually compatible with its streetscape context. It should contain or at least respond to essential elements that make up the character of the surrounding area."
A distinctive element of the streetscape of Keiran Street is the notable absence of driveways and off-street parking. The proposed construction of a driveway across the grass verge will not be visually compatible with the existing streetscape context of Keiran Street.
Control 8.1(b) in Part B8 of the DCP provides: "(b) Where off-street parking is not characteristic of the streetscape, vehicular access from the street is not permitted."
Off-street parking is not characteristic of the streetscape of Keiran Street. Apart from the property opposite the Site at 77a Keiran St, there is no other off-street car parking in Keiran St at all. The approval of the application would therefore introduce a new and uncharacteristic element into the streetscape contrary to control 8.1(b).
The non-compliance of the development application with controls 2.3(a) and 8.1(b) of the DCP reinforces the Court's finding that the impact of the proposed development on the streetscape of Keiran Street would be unreasonable and unacceptable.
I do not accept the applicant's argument that the proposed driveway is consistent with the existing concrete footpaths further down Keiran Street. Unlike the proposed driveway, these are separated by several properties and do not have significant batters. Their existence does not, in the Court's view, mean that the proposed driveway will be consistent with the existing streetscape. In my view, the proposed development would be out of character with, and would have a significant adverse impact on, the streetscape of Keiran Street.

[17]

Heritage impacts

As the Site is within the Conservation Area, cl 5.10(4) of the LEP requires the effect of the proposed development on the heritage significance of the conservation area to be considered. That clause is as follows: (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).
There are also provisions of the DCP that apply and which guide the exercise of the Court's discretion.
Clause 2.8.3(f) of the DCP provides: "(f) On-site car parking (other than from rear lanes) is not acceptable in heritage conservation areas where it will: (i) Break a consistent building line; (ii) Introduce uncharacteristic elements within an established streetscape; and/or (iii) Adversely impact on the integrity of the listed or contributory building or setting."
The proposed development will introduce a driveway across the wide grassed verge on the northern side of Keiran Street, which is currently characterised by the complete absence of driveways. As explained above, I do not accept the applicant's argument that the existing concrete footpaths have already created a precedent for the approval of the proposed driveway. In this regard I accept Mr Brady's evidence that the proposed driveway would be a "much more intrusive element than the existing concrete footpaths which follow the line of the existing embankment and unlike the proposed driveway do not read as a wide depression in the verge" (Ex 3, p.9). I find that the proposed development would be inconsistent with clause 2.8.3(f) of the DCP.
I also accept Mr Brady's evidence that the width and consistent form of the northern verge to Keiran Street is a notable example of the streetscape elements defining the Conservation Area. His evidence, which I accept, is that the current landscaping maintains the form and detail evident from at least the 1930s. It is his evidence that the verge on the northern side of Keiran Street remains the most notable example of the verge formations established in conjunction with the early 20th Century residential areas of the Conservation Area. The construction of the proposed concrete driveway across the existing verge will, in his opinion, have a substantial visual impact on the continuity of the landscaped verge. I agree.
While Mr Phillips makes the point that there is no specific mention of grass verges and street planting in either the description or statement of significance for the Mill Hill Conservation Area, he agrees that the wide verge with regularly spaced street trees on the northern side of Keiran Street is a key characteristic of the street. I am not persuaded by his evidence that the proposed driveway will not intrude into the streetscape because the topography will continue to slope from north to south, the pattern of housing will remain the same, there are two concrete strips that already cross the verge to the west, and the street trees will not be impacted.
Nor do I believe that it is reasonable, as the applicant submits, to measure the impact of the proposed driveway by reference to its area as a percentage of the total area of the verge. While the driveway may only represent 2 to 4% of the total area of the verge, its location and proposed design will make it a prominent feature in the streetscape.
The proposed driveway will in my view create a new and uncharacteristic element into the heritage streetscape that will be visible as residents enter and exit Keiran Street. The impact on the heritage values of the streetscape will, in my view, be significant and undesirable.
Both sides raised the issue of precedent to support their contentions either for or against the approval of the application and I accept that the precedent effect of an approval is a relevant consideration in the Court's assessment of the application: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 at [31] to [34].
The Council argued that approval of the application would be contrary to the public interest in that it would establish an undesirable precedent in the immediate locality. However, I accept the applicant's submission that approval of the application is in fact unlikely to create a precedent for the approval of further driveways in Keiran Street due to the site constraints of the other properties in the street. It is unlikely that any other property in Keiran Street has the physical capacity to provide off-street carparking. The approval of this application would have no impact, in my view, on the likelihood of other properties in Keiran Street seeking to establish off-street car parking.
The applicant argued that there are already other properties in the vicinity of the Site which have driveways and crossovers servicing off-street car parking and that accordingly the proposed driveway would not be inconsistent with the existing streetscape. Those properties, which the Court inspected on the site view, are 77a Newland Street, 92 Newland Street, 102 Newland Street and 104 Newland Street.
The applicant argues that there is already a driveway and off-street car parking space on the property opposite the Site at 77a Newland Street and that this has created a precedent which supports the approval of the development application. I disagree. The property at 77a Newland Street comprises shop-top housing above a youth support office and is located on the lower side of Keiran Street. Importantly, the driveway into 77a Newland St does not have to cross a large landscaped verge and therefore has much less of an impact to the streetscape compared to the proposed driveway.
The other sites nearby that have off-street parking are also not comparable to the Site. Nos 102 and 104 Newland Street have parking access from the front of the property to a hard stand parking space located a short distance from the kerb within the front setback of the properties. The property at 92 Newland Street has a stronger similarity to the proposed development in that it is also a corner site and the car parking is accessed from the side street into the rear of the property. However, the access to 92 Walter St does not cross a wide, sloping verge like that which adjoins the Site and I accept Mr Brady's evidence that the driveway in Walter St predates the establishment of the Conservation Area. None of these properties in my view are therefore comparable to the Site and the proposed development and they do not provide any precedent that assists the applicant in this appeal.
The Court was also informed that the Council had previously granted development consent for the construction of a driveway and off-street car parking space on the Site. However, that development consent is not in evidence and is of no relevance to my consideration of the merits of the application now before the Court.
I find that after a careful evaluation of the evidence and the submissions that given the likely detrimental impacts, the application is not acceptable on its merits: s 4.15(b) of the EPA Act.

Spence v Waverley Council

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (19 paragraphs)

Parties

Cases Cited (5)