Vosoba v Waverley Council

Land and Environment Court (NSW)|2012-05-09

Judgment 1COMMISSIONER:This is an appeal against Waverley Council's refusal of a development application for a new front fence and hardstand parking at 350 Birrell Street, Bondi (the site). The appeal is made under s 97 (1) of the Environmental Planning and Assessment Act 1979 (the Act). 2The proposal is the removal of an existing 2.0 m high brick front fence and its replacement with a 1.8 m timber slatted fence and gate. There will be an opening in the central part of the fence to enable use of a proposed hardstand area in front of the dwelling. The hardstand will comprise two wheel tracks and will be positioned between the two sandstone pillars that support the front verandah of the dwelling. A portion of the tiled floor of the front verandah will be removed to accommodate a vehicle. A driveway crossover is to be constructed to council's specifications.

Background to the appeal and the planning controls 3The development application was lodged with council on 20 September 2011 and notified to surrounding property owners. One submission objecting to the proposal was received from the owner of 348 Birrell Street on the grounds of non-compliance with Waverley Development Control Plan 2010 (WDCP). There were two submissions of support from the owners/occupiers of 346 and 352 Birrell Street on the basis of safety. 4The Development Assessment Report dated 10 November 2011 from council's Development and Building Unit (DBU) recommended approval subject to conditions. The council ultimately refused the development application on 22 November 2011. 5The grounds for refusal included

The site and its locality 7The site is the western portion of a pair of semi-detached dwellings on the western corner of Tamarama and Birrell Streets. The area is characterised by similar dwellings - semi-detached and freestanding, and some residential flat buildings. The site is not an item of heritage significance and is not within a heritage conservation area. 8The eastern end of Birrell Street is close to Tamarama Park and beach and is heavily used during weekends. A high proportion of the nearby dwellings have off-street parking forward of the building line, including the adjoining property to the west, 348 Birrell Street. The adjoining semi to the east has a double garage that fronts Tamarama Street.

Objector evidence 9The matter was held on site. Ms Heatherich, an owner of 348 Birrell Street and the objector who made written submissions, gave oral evidence. She tendered additional material in support of her opposition to the proposal. 10Essentially, while Ms Heatherich accepts that off-street parking is desirable for reasons of safety and convenience, she submits that her development application to council, and later her appeal to the Court [Freer v Waverley Council [2010] NSWLEC 1084] apart from parking forward of the building line, was otherwise compliant with council's controls in the WDCP. In her view, the applicant's proposal is unacceptably non-compliant, particularly with respect to the length of the parking space. She contends that this could lead to problems with vehicles overhanging the footpath if larger vehicles are parked there. In addition, she considers there may be safety problems for pedestrians given the proximity of the driveway to the corner. 11Ms Heatherich also submits that the proposal will result in the loss of two on-street parking spaces rather than one. In support of this contention she produced several photographs showing the section of street outside the applicant's property, between the no standing sign on the corner and the end of her driveway, occupied by two small vehicles. When questioned as to how this impacted on her property, particularly as she resides overseas, she considers the loss of on-street parking affects every resident with more than one vehicle as well as visitor parking.

The plans and issues 12The applicant initially prepared a plan (Revision B) showing the hardstand between the two sandstone pillars that support the front verandah. In an attempt to retain an on-street parking space, the applicant prepared plan Revision D which moved the hardstand to the west of the site. This required the removal of one pillar and an alternative structure to support the verandah. 13The council in considering the proposal favours the retention of the building façade and both pillars. In balancing the loss of on-street parking, in the opinions of the traffic experts for both parties, the parking space in front of the applicant's property is technically a single space. A report by McLaren Traffic Engineering also notes that the no standing sign on the western side of Tamarama Street is technically closer to the corner than recommended in the Australian Road Rules. In effect, the loss of one on-street space is offset by the provision of one off-street space. 14The McLaren report also notes that the Australian Standard length of 5.4m for car spaces accommodates all standard car lengths including a B99 car with a length of 5.2m. A B85 car has a length of 4.91 m. The length of the applicant's car space is a minimum of 5.26 m, which will accommodate a B85 car plus a 300 mm allowance for clearance. The report recommends a wheel stop to protect the dwelling and to ensure that the vehicle does not overhang the public footpath. 15Another issue raised by the council and by Ms Heatherich is the loss of a relatively recently planted street tree. The tree was planted outside the applicant's property in February 2012. It was resolved that the tree is still of a size that could be feasibly transplanted. 16Ms Heatherich also noted that the existing front wall of the applicant's property is covered with a creeping fig, which she considers to be an attractive feature in the streetscape. The removal of the wall will result in the removal of the fig.

Findings 17The degree of non-compliance with the dimensions of the hardstand is relatively minor and acceptable to council. The DBU report notes an internal referral to council's traffic manager and planner who considered that subject to conditions, the proposal is suitable and not out of character with surrounding developments. As discussed during the hearing and noted in the Statement of Environmental Effects, there are many examples where the council or the Court have approved forward of building line parking spaces. While considerable weight must be given to controls in a DCP, there are circumstances where a departure from those controls is warranted. In considering the DBU report and the McLaren report, I consider the conditions of consent proposed by the parties address the relevant issues and the proposal should be approved. I note that an additional condition - condition 26 is to be inserted to require the incorporation of wheel stops, as recommended in the McLaren report, into the design. 18In regards to the front wall, I am aware from other similar proceedings that the council's preferred option for front fences is to discourage solid masonry walls and to encourage more open treatments such as slatted timber. The fence details shown on plans Revision D are to be incorporated into Revision E of the plans. While the creeping fig will be lost, this is not something that would warrant refusal. 19Condition 3 - Tree retention is to be modified to provide for relocation of the street tree by council at the applicant's expense. The new location is to be determined by council staff.

Conclusions and orders 20As required in these matters, the consent authority, in this case the Court, must consider the matters listed in s 79C of the Environmental Planning & Assessment Act 1979 (the Act). 21I am satisfied that the proposal is consistent with the provisions of WLEP and the circumstances of the non-compliance with the WDCP have been considered. 22Therefore I agree to the orders sought by the parties. The parties are directed to file a clean copy of the conditions, as amended during the hearing, both hard copy and electronically, by close of business 16 May 2012 for inclusion with the final orders. Plan Revision E is to be filed with the Court by that date. 23By consent, the Orders of the Court are: (1)The appeal is upheld. (2)Development consent is granted to DA No 385/2011 for the construction of a new front fence and hardstand parking area in the front setback at 350 Birrell Street, Bondi being Lot 1 in DP 587676 subject to the conditions in Annexure A. (3)The exhibits are retained.

J Fakes Commissioner of the Court 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: 11 May 2012

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