Ad Maiora Natus Sum Pty Limited v Cumberland Council

[2018] NSWLEC 1563

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	AD Maiora Natus Sum Pty Limited v Cumberland Council [2018] NSWLEC 1563
Hearing dates:	19 October 2018
Date of orders:	19 October 2018
Decision date:	19 October 2018
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The appeal is dismissed.
Catchwords:	APPEAL: refusal of development application for shop top housing – constrained site – relaxation of the parking requirements for commercial and visitor parking – parking for residents inadequate
Legislation Cited:	Auburn Local Environment Plan 2010 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Cases Cited:	Nil
Texts Cited:	Apartment Design Guide AS/NZS 2890.1:2004 Auburn Development Control Plan 2010
Category:	Principal judgment
Parties:	AD Maiora Natus Sum Pty Limited (Applicant) Cumberland Council (Respondent)
Representation:	Solicitors: G McKee, McKees Legal Solutions (Applicant) C Gough, Storey & Gough (Respondent)
File Number(s):	2018/77613
Publication restriction:	No

EX TEMPORE Judgment

Background

1. The applicant seeks consent to develop a shop top housing development comprising four residential units over one commercial tenancy with four (4) car parking spaces in a private car park.

2. The details of the development application (DA 427/2017) (DA) are set out in the amended plans filed with the Court on 23 July 2018. The amendments followed the termination of a section 34 conciliation conference which I facilitated earlier this year. The parties have now requested that I determine the matter, having regard to the amended design and the evidence taken during the section 34 conference together with further evidence now before the Court.

3. The background detail including the facts and statutory controls are set out in the Council’s Amended Statement of Facts and Contentions filed on 1 August 2018 which has been marked ‘Exhibit A’. I do not need to repeat that detail save to note that there is no dispute between the parties that the subject site at 50 Amy Street, Regents Park is located within the Regents Park Commercial Centre which is identified as a Local Centre and that the proposed use is permissible with consent within the 2B Local Centre zone under the Auburn Local Environment Plan 2010.

4. It is also agreed that this narrow site - which has a primary frontage to Amy Street and a secondary frontage to Mimulus Lane and a land area of 278m² is constrained and this fact should be afforded some consideration in the assessment of this application.

Planners’ evidence

5. As it happened, the site constraints did inform the Council’s assessment of the DA and have resulted in a relaxation of the relevant Auburn Development Control Plan 2010 (DCP) controls for car parking on the site. As discussed at pars [14]-[16] and [24] of the joint town planning report prepared by Mr Apps and Mr Jones (Exhibit B), the Council now accepts that it is not necessary for the applicant to provide any onsite commercial or visitor parking spaces for this development. Although, it still requires each residential tenancy to have an onsite car parking space.

6. And, with respect to the submissions received from neighbours concerned about privacy, solar access, bulk and scale, the parties’ town planners agreed that the recent amendments satisfactorily addressed these concerns. They described the amended development as compliant with the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) / Apartment Design Guide (ADG) standards for solar access to units within the development and adjoining. In particular, they agreed that Mr Chews’ concerns about loss of solar access into his living area are addressed by the recent amendments and the design is now compliant with the relevant controls. (Mr Chew’s two objections were included in the Council’s bundle which is Exhibit 2). The planners also agreed that the development has an FSR of 1.41:1 which is less than the permitted FSR of 2:1 and, that the proposed building height of 9.2m is well within the 14m height limit. In short, they accepted that the development is now satisfactory in terms of bulk, scale and massing and they do not believe that there is any privacy consideration which warrants refusal of the development.

7. In terms of these indicators, the planners agreed that the proposal is not an overdevelopment of the site. However, Mr Apps remained firm in his view that in terms of the number of units the development remained an overdevelopment because of the applicant’s inability to provide appropriate onsite parking. At par [25] of the joint report, he expresses his concern in the following terms:

"25. The latest iteration of the plans show 4 car parking spaces. However, the layout of those spaces is not satisfactory for the following reasons:

- Only spaces 1 and 3 are easily accessible and even then car 3 has to reverse some 15 past other vehicles;

- Car space 2 is difficult to get in and out of, especially if a vehicle is parked in space 1;

- Car space 4 is difficult to get in and out of, particularly if a vehicle is parked in space 2."

Drainage

8. It is also the case that the drainage concerns raised by the original application have been addressed by the applicant's acceptance of the Council's deferred commencement condition (Exhibit F).

Principal issue – parking layout

9. In light of the above, the determinative issue is the acceptability of the development having regard to the onsite car parking provided and the proposed layout.

The Council’s position

10. The Council contend that the simple solution to the onsite parking issue is to reduce the dwelling yield. It submits that the number of apartments that can be achieved on this site should be based on the number of parking spaces that can be provided in a safe and functional layout. As the present application does not achieve this, the Council contends that the proposal is an overdevelopment of the site.

11. In making this submission, the Council relies on the planning evidence of Mr Apps and the traffic evidence given by its expert, Mr Bala Sudarson. Put simply, Mr Sudarson believes that the width of the site is not adequate for the proposed parking arrangement and pedestrian access and consequently, the layout and manoeuvrability of the carpark is not satisfactory. Even with the additional 300mm added to the width of the parking spaces in accordance with section 2.4.1(b) of the Australian Standard AS2890.1, he is of the view that the car parking spaces numbered 2 and 3 are difficult to get into and out of, when the other parking spaces are occupied. He also believes that it is not safe to require cars from parking space 3 and 4 to reverse a distance of approximately 18m in order to exit the site. Mr Sudarson said that this is not a private driveway for one household where a reversal movement becomes familiar over time but four separate households Some of which may be tenanted and these driver's may be less familiar with the constraints of this car park design.

12. Mr Sudarson also said that, in his opinion, car space 2 should be assessed as “an obstructed space” rather than "an unobstructed space" having regard to Figure 2.5 of the AS/New Zealand standard. Therefore, it needs to be increased in length from 5.4m to 6.6m – a length which he accepted was not achievable on the current design. He formed this view because he believes that car space 3 is an obstruction to car space 2, particularly when occupied with a vehicle. It inhibits entry into car space 2. Mr Sudarson did not accept that his interpretation of the AS in Figure 2.5 was unreasonable or inappropriate on the facts of this case in the absence of a clear definition of what an obstruction could be.

13. The Council‘s traffic engineer also expressed a concern about the opportunity to access the spaces having regard to the proposed aisle width of 3.3m – which, in his assessment, was too narrow and should be increased to 3.6m. He said that based on his experience, a minimum 3.6m aisle width is required for safe vehicular manoeuvring (albeit he conceded that his view in respect of the aisle width is not based on the Figure 2.5 in the AS). Mr Sudarson also believes that the swept path analysis undertaken by the applicant‘s traffic expert, Mr Oleg Sannikov, demonstrates little clearance between vehicles parked in the allocated spaces; therefore, he thought that the car parking layout as proposed offers insufficient buffer between vehicle spaces to allow safe and convenient manoeuvrability. And as the manoeuvrings are very critical in the proposed layout, Mr Sudarson told the Court that the swept path analysis should have included a consideration of the larger B99 vehicles together with the B85 vehicle as required by AS/NZS 2890.1.2004 in order to properly assess the car park design in terms of vehicle access and manoeuvrability.

14. That said, Mr Sudarson agreed that if car space 2 was removed from the design, then he would be satisfied with the internal configuration of the parking layout. However, in making this concession, he emphasised that this would exacerbate his concern about the impact of the development on the off-site parking in the area – which was to be avoided.

15. In that regard, the traffic experts agreed that the likely additional on-street demand from this development is in the order of one (1) vehicle for the commercial component. The likely additional on-street demand from the residential component is in the order of one (1) visitor vehicle if four (4) onsite spaces are approved. With that in mind, the applicant’s traffic expert, Mr Sannikov, carried out a parking survey in the nearby streets within approximately 150m distance from the site on Wednesday 5 September 2018. This distance is apparently regarded as convenient walking distance in transport planning. The results of the parking accumulation counts were presented in Table 1 at p5 of the joint traffic report (Exhibit D). Mr Sannikov said that the results of the parking accumulation counts demonstrate that there are more than sufficient opportunities to accommodate 1-3 vehicles on-street without a detrimental effect on the current situation – accepting that some of the streets in the area have time restricted parking.

16. Mr Sudarson did not agree with the applicant’s evidence about the acceptability of on-street parking. He said that the Council‘s position, as set out in Section 2 of its DCP, is that new development shall provide parking spaces within the site and shall not rely on the street parking spaces. As there had already been a relaxation of the parking controls to accommodate the constraints of the site, any approval based on-street parking for the units in his assessment will further restrict Council’s future street improvement works and traffic management. He was also concerned about the cumulative impacts of a similar approach for other sites and said this also needed to be taken into consideration.

17. While respect to pedestrian sight lines, Mr Sudarson agreed with the applicant that the site constraints do not allow for the provision of the sight triangles in accordance with Figure 3.3 of the AS – minimum sight lines for pedestrian safety. He accepted that there could be installed convex mirrors on each side wall of the site at the property boundary. However, this concession did not overcome or make acceptable the development as proposed internally, in terms of vehicle access and manoeuvrability.

The applicant’s position

18. Mr Sannikov disagreed entirely with the Council’s interpretation of the AS. He assessed the car parking to be compliant with the AS and thereby adequate, safe and convenient. Referring to Figure 2.45 of the AS and the notes below, Mr Sannikov told me that car space 2 was not an obstructed space as it was more than 300m from any wall. While it required two (2) movements to enter and exit the space, he described it as being akin to parallel parking in Macquarie Street.

19. Mr Sannikov said that he had carried out checks of vehicle manoeuvrability into and out of the each car parking space using Auto Tracking turning path modelling software based on a B85 vehicle as required by the AS/NZS 2890.1:2004 in order to assess the car park design for vehicle access and manoeuvrability. Based on that modelling, he concluded the car park was satisfactory and the number of vehicle movements is not likely to exceed two (2) per hour for the whole car park area in and out combined. In his assessment, the site is acceptable for four (4) car spaces and there should be no reduction in the number of units. Based on the swept path analysis, he told me that they demonstrated compliant access to the spaces and site. Moreover, he was confident that due to the low frequency of movements into the car park, submitted that there will be no conflict between different users. It was further submitted that the access is not similar to a private driveway that requires reversing action and the parking akin to parallel parking in the street.

20. In the ultimate, it was submitted by the applicant, based on the evidence of Mr Jones, that if the Court required then one of the spaces (car space 2) could be deleted from the design and the layout otherwise remain as it is. While this would allow for more circulation space internally and an improved internal design, it was not necessary as the design was compliant with the AS.

Consideration

21. As Mr Gough pointed out, numerical compliance with the AS is not an end in itself which mandates that a car park design is appropriate for a site. The success of a parking development requires an efficient design. It must represent a balance between function, economics safety and aesthetics. Furthermore, consideration must be given to such matters as access to and from the spaces, manoeuvrability and convenience for the drivers and pedestrians, including people with disabilities. Ultimately, the minimum requirements in the standard cannot be taken as textbook for the design of parking areas. A qualified person experienced in design car parking facilities must assess the particular design at issue in light of any regulatory requirements of local government.

22. The Council maintains on Mr Sudarson’s expert assessment that this car park design is the outcome of an overdevelopment of the site. For the reasons that follow I must agree.

23. There is no dispute on any view of the evidence that the parking internally is tight and difficult, albeit numerically compliant with an interpretation of the relevant AS. As already indicated the AS invites a consideration of the particular site under review in order to determine whether the minimum requirements are acceptable. I observed the site during the s34 conference and in my assessment of the evidence it cannot satisfactorily accommodate the number of car parking spaces which are generated by the development of four (4) units as proposed. After careful consideration, I prefer Mr Sudarson's and Mr Apps’ evidence as summarised to that of Mr Sannavokic and Mr Jones because it accords with my reading of the plans and better achieves the Council’s publicly exhibited and adopted parking DCP controls which the AS does not displace. I agree with Mr Sudarson's expert assessment that there is simply insufficient space to allow for appropriate and safe manouverability in the design before the Court. I am not prepared to approve of a carpark which is reliant upon up to two manoeuvres to enter into and out of a space within such a confined environment. Nor do I accept that reversing along a 3.3m aisle for a distance of 18m into a laneway is a satisfactory planning outcome.

24. Moreover, I do not accept, as the applicant suggests, that a further reduction of onsite parking (car space 2) is an answer to an overdevelopment of a site having regard to the Council's adopted policy about onsite parking.

25. The DCP objectives promote convenient and safe access and parking to meet the needs of all residents and visitors. The Council has already relaxed the DCP control in respect of commercial and visitor spaces for this development and no further reduction is justified on the facts. There should be four (4) spaces for four (4) units. The available public transport does not displace the expected car ownership generated by the four (4) units proposed.

26. Accordingly, I dismiss the appeal.

………………………

S Dixon

Senior Commissioner of the Court

**********

Amendments

24 October 2018 - Correction made to [24] - It should now read as:

Moreover, I do not accept, as the applicant suggests, that a further reduction of onsite parking (car space 2) is an answer to an overdevelopment of a site having regard to the Council's adopted policy about onsite parking.

Decision last updated: 24 October 2018