Alco Electrics Pty Ltd v Waverley Municipal Council

[2015] NSWLEC 1034

Land and Environment Court

New South Wales

Medium Neutral Citation:	Alco Electrics Pty Ltd v Waverley Municipal Council [2015] NSWLEC 1034
Hearing dates:	23 February 2015
Date of orders:	03 March 2015
Decision date:	03 March 2015
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal dismissed
Catchwords:	DEVELOPMENT APPLICATION: Conversion of a garage to a bedroom; Floor Space Ratio; Amenity; parking
Legislation Cited:	Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Alco Electrics Pty Ltd (Applicant) Waverley Municipal Council (Respondent)
Representation:	Counsel: Applicant: Mr G Boskovitz (Solicitor) Respondent: Ms C Morton (Solicitor) Solicitors: Applicant: Boskovitz & Associates Solicitors Respondent: Sparke Helmore
File Number(s):	11104 of 2014

Judgment

1. COMMISSIONER: The applicant appeals Waverley Council’s deemed refusal of Development Application DA-482/2014 for the conversion of a single garage into a bedroom and construction of a first floor balcony extension at 34 Imperial Avenue, Bondi (the site).

2. During the course of writing this judgment I noted that the applicant, who was self-represented at the time, lodged the Class 1 application with the Court in December 2014. The appeal is described as having been made under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) which relates to appeals against modification applications made under s 96 or s 96AA of the Act. However, the documentation attached to the Class 1 application and the council’s Statement of Facts and Contentions shows that the Development Application the subject of this appeal is a new development application made under s 78A of the Act and therefore any appeal must be made under s 97 of the Act.

3. I have amended the document pursuant s 64(1(a) of the Civil Procedure Act 2005 to reflect accurately the nature of the proceedings. Nothing of substance turns on me making this adjustment and I have not referred this matter back to the parties to discuss it with them.

4. The matter commenced on site as a mandatory conciliation conference under s 34AA of the Land and Environment Court Act 1979 (the Court Act) however, as the issues between the parties were not fully agreed, the conciliation was terminated and the matter proceeded immediately to a hearing.

The proposal and relevant background

5. The long history of Building Approvals and Development Applications relating to the site and dating back to 1970 is provided in the council’s Statement of Facts and Contentions. Of some relevance to these proceedings, in April 2012 DA 166/2012 was lodged with council for alterations and additions to the existing dwelling to create a dual occupancy. An amended form of the plans was approved by agreement after the deemed refusal was appealed. In July 2014, the council granted consent to modification application DA-166/2012/A which approved the deletion of the swimming pool proposed to be located in the proposed cabana. The applicant subsequently appealed council’s determination seeking orders from the Court for the deletion of two conditions of consent. In September 2014 an Agreement Between the Parties was made under s 34(3) of the Court Act. The effect of the orders was to restrain the use of the cabana and require the removal of unauthorised kitchen appliances and sink.

6. The orders sought by the Class 1 application currently before the Court are to amend DA 166/2012 to allow the use of an existing garage as a habitable space or bedroom and to extend the existing balcony width by 1.2m at the rear of the property. However, as discussed above, the development application the subject of this appeal is a new DA.

7. The applicant seeks consent for the following work:

• Conversion of an existing single car garage at the ground floor level of dwelling 1 into an additional bedroom – identified as ‘Bedroom 4’ on the plans, including the construction of a walk-in-robe and storage area;

• Removal of the existing garage door on the western (front elevation) of dwelling 1 and installation of two new highlight windows in the western and northern elevations of proposed Bedroom 4. Any remaining previously approved openings are to be bricked up, rendered and painted to match the existing external finishes;

• Provision of a hard stand car space within the existing driveway in the front setback to dwelling 1;

• Erection of a new bin storage area on the southern boundary within the front setback of dwelling 1;

• Extension of the depth of the existing rear balcony accessed from the living room of the first floor dwelling, dwelling 2, by an additional 1.2m towards the eastern boundary of the site. An obscure glazed privacy screen is proposed to be erected to a height of 1.5m on the northern elevation of the rear of balcony proposed to be extended; and

• Erection of new balcony posts at the eastern elevation to support the extended portion of the balcony.

The site and its locality

8. The site is located on the eastern side of Imperial Avenue. A two storey dual occupancy and a communal cabana at the rear/eastern boundary occupy the site.

9. Dwelling 1 is a three bedroom unit on the ground floor; as indicated above, the dwelling includes an integrated garage in the north-western corner. Dwelling 2 is a three bedroom unit on the first floor. The parking space for this unit is a 2.7m wide paved area/hardstand behind the front building line and between the northern façade of the garage of dwelling 1 and the northern boundary fence. Access to both parking spaces is via a shared but widened driveway and concrete apron off Imperial Avenue.

10. Both dwellings have areas of private open space at ground level at the rear of the building and the cabana is for communal use.

11. The surrounding development comprises a mixture of free standing and semi-detached single and two storey dwellings of varying architectural styles as well as several blocks of older style residential flat buildings. Parking arrangements in the street include no on-site parking, parking on a hardstand forward of the front building line, carports and garages forward of the front building line, hardstands to the side of dwellings and garages at the rear of some properties. There is no resident parking scheme.

12. Adjoining the site to the north is a two-storey semi-detached dwelling; to the south is a single-storey semi-detached dwelling. The property to the north has a garage doors in solid masonry walls at the street frontage, the property to the south has hard stand parking at the front of one dwelling with a carport and the other attached dwelling has a garage with a door at the street frontage.

The issues

13. Council contends that the application should be refused for the following reasons:

1. Excessive Floor Space Ratio (FSR) – the conversion of the garage to a bedroom increases the already non-compliant FSR of the whole development from 0.63:1 to 0.68:1.

2. Poor amenity for future occupants of proposed bedroom 4 in dwelling 1 – visual and acoustic issues; poor amenity for residents arising from the proposed balcony extension.

3. Visual and acoustic privacy impacts for adjoining properties as a consequence of the balcony extension.

4. Adverse impact on the streetscape as a result of parking forward of the building line and proposed garbage storage in the front setback.

5. Not in the public interest – pedestrian safety, matters raised by resident objectors.

6. Inaccuracies on the plans – the plans show a kitchenette in the cabana.

14. Prior to the commencement of the proceedings, the parties’ planning experts, Ms Kerry Gordon for the council and Mr George Karavanas for the applicant, participated in a joint conference and prepared a joint report. The planners agreed that the extension of the first floor balcony would be acceptable if screening was provided around the enlarged balcony that provided both acoustic and visual privacy protection for both the adjoining properties and the private open space of dwelling 1. The planners drafted a suggested condition of consent recommending a solid opaque or frosted glass privacy screen on the northern, southern and eastern sides of the balcony, with no gaps at floor level and to a height of 1.6m. To this extent, the relevant contentions in (3) and part of (2) are agreed. The remaining issues are not agreed and are to be determined.

The assessment framework

15. The site is zoned Zone R2 – Low density Residential in Waverley Local Environmental Plan 2012 (WLEP). The relevant objective is “to provide for the housing needs of the community within a low density residential environment’.

16. Clause 4.4 Floor Space Ratio applies. The relevant objectives in cl. 4.4(1) are:

(b)   to provide an appropriate correlation between maximum building heights and density controls,

(c)   to ensure that buildings are compatible with the bulk, scale, streetscape and existing character of the locality,

(d)   to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality.

17. The maximum FSR for the zone is 0.5:1 – cl. 4.4(2) and Floor Space Ratio Map.

18. Part C – Residential Development in Waverley Development Control Plan 2012 (WDCP) applies. The following clauses and extracts are relevant to the remaining issues.

1.10 CAR PARKING

The provision of private (on-site) and public (on-street) parking must be managed in an equitable and environmentally sensitive manner that benefits the community as well as the individual. When considering applications, the following general principles shall apply:

Strategies [relevant]

● The provision of car parking on-site may not be appropriate in all locations or circumstances and approval will only be granted where site and locality conditions permit.

● Car parking must be designed to complement the design of the building and streetscape to which it relates and incorporate a range of appropriate materials and design.

● Where site conditions allow, car parking structures should be located behind the front building line. In some circumstances, car parking structures in front of the building line may not be appropriate for streetscape or design reasons.

Objectives [relevant]

(a)   To provide convenient and accessible parking that is appropriately designed and located.

(b)   To achieve a high standard of urban design and retain the visual quality of residential buildings, streetscapes and landscapes.

(c)   To protect the amenity and safety of pedestrians.

(d)   To ensure that car parking accommodation does not dominate or adversely impact on the existing built or landscape character of the street.

1.10.2 Location

(b)   For existing development, car spaces should be sited having regard to the following hierarchy (refer to Figure 12 [illustrates the following locations]).

(i)   Hardstand, carport or garage located at the rear of the site with access from a rear lane;

(ii)   Hardstand, carport or garage located at the side of the dwelling behind the building alignment; or

(iii)   Hardstand car space forward of the front building line.

(d)   A hardstand (in the form of wheel strips) or carport forward of the building line may be permitted where [relevantly]:

(i)   There is no rear access;

(ii)   The site is of sufficient width where the car space will not dominate the existing building (i.e. does not exceed 45% of the width of the site frontage);

(iii)   Is no greater than a single car space;

(iv)   The distance between the building and the front property boundary is a minimum of 5.4m;

(v)   Public views would not be adversely affected;

(vi)   There is a predominance of this form of off street car parking in the immediate vicinity of the site;

(ix)   The safety of vehicles, pedestrians and cyclists is maintained.

1.10.3   Design [relevant]

(b)   Car parking is to be sympathetically integrated into the design of residences and to be secondary in area and appearance to the primary residence and related site.

(c)   No element of the street façade/ frontage of a building, including verandahs and window awnings are to be removed or demolished in order to accommodate car parking unless mitigating measures are taken to ensure cohesive integration of the works within the building.

(g)   Where parking is provided to dual occupancies parking is to utilise shared access ways. Parking to dual occupancies is to be located behind the front building line and to utilise open spaces between residences preferably screened from the street.

The hearing - evidence

19. The hearing commenced on site. Several residents from nearby and adjoining properties gave oral evidence. Their concerns relevant to the current development application are summarised as:

• Conversion of the garage to a bedroom is an over-development of the site;

• Increasing the size of the dwelling will enable more people to live there thus potentially increasing the number of vehicles;

• The removal of one parking space will lead to more competition for the limited number of on-street parking spaces;

• Parking in the front setback will clutter the front of the site and the removal of the garage door and its replacement with a window will be unattractive ; and

• Privacy and noise concerns arising from the proposed extension of the rear balcony.

20. Before returning to Court, both sides of Imperial Avenue were inspected in order to determine the extent and type of off-street parking. The site was inspected. The inspection of the cabana found that the kitchen appliances and sink have been removed however the inconsistency in the plans remains. The location of the proposed extension of the balcony and extent of agreed privacy screens was pointed out.

21. An element of the development application is the creation of a new bin storage area in the front garden. The applicant contends that this is to provide convenient bin storage for dwelling 2 and to avoid having to drag the bins along the southern side of the building from the rear garden to the street. In order to test this proposition, the largest bin was moved along the side passage. Although this could be done, the applicant maintains that soft soil and location of pipes and meters makes access difficult.

22. In essence, the council’s contention is that converting the existing garage to a bedroom increases the existing non-compliance with the FSR controls and results in an inferior planning outcome as it leads to: an over-development of the site; parking forward of the building line; unacceptable impacts on the streetscape; potential risks to pedestrians from reversing vehicles; and relocation of bins previously stored in the garage. In addition, the council maintains that the proposal will lead to poor amenity for future occupants of bedroom 4 because of a poor outlook through highlight windows and noise and headlight glare from the adjoining parking spaces.

23. Mr Karavanas agrees that while the proposal technically increases the FSR it does not result in any increase in the building envelope or in bulk and scale. In his view this is not an overdevelopment of the site and may not necessarily result in an increase in the density of people on site. An extra bedroom does not generate a requirement for additional parking as the control in c. 1.10.1(a)(ii) in WDCP specifies that car parking should not exceed more than 2 spaces for dwellings with 3 or more bedrooms.

24. Mr Karavanas is of the opinion that the proposal is unlikely to have a detrimental impact on the streetscape because: removing the garage door and replacing it with a window will achieve a more domestic and improved appearance; parking forward of the building line is consistent with most dwellings in Imperial Avenue; the area forward of the building line can currently be used for parking at any time; the proposal for parking forward of the building line complies with all relevant considerations under cl. 1.10.12(d) In WLEP; and the bin storage area is a small structure and will not be a dominant element in the streetscape.

25. In regards to the amenity of future occupants, Mr Karavanas is of the view that the level of amenity will be appropriate. He opines that the highlight windows will provide adequate ventilation and light, allow views of the sky, provide good noise attenuation and limit the glare of headlights. He considers that the level of traffic generated by a domestic property is low at any time and less frequent at night.

26. Mr Karavanas considered that if managing garbage bins was a problem an option may be to swap the nominated parking spaces for each dwelling. The reason being that having the side hardstand for dwelling 1 will enable the residents of that unit to store their bins in their rear open space and be more in control of access to the street which relies on moving the bins across that hardstand.

27. In the joint report, Ms Gordon outlines the background to the proposal and the reasons for the existing non-compliance with the current FSR controls and the current parking arrangements, including the reason for the location of the garage. While she agrees that while the additional floor space is sought within the building structure and will not increase bulk or scale, in her view the proposal will result in the unacceptable external and internal impacts described in council’s contentions – all as a consequence of the increase in FSR.

28. In Ms Gordon’s opinion, the current approval, as conditioned, provides bin storage for dwelling 1 in the garage and for dwelling 2 at the rear. Moving the bins to the front setback reduces the amenity of the residents of dwelling 1. The only benefit in swapping the parking spaces would be to make it easier for dwelling 1 to get their bins out but in her view this does not justify placing a hardstand in front of a bedroom. Ms Gordon considers that putting a noise source from one dwelling against a sensitive are in another dwelling is a poor planning outcome.

29. In regards to the parking options, Ms Gordon’s strongly held opinion is that the garage incorporated into the building is the desired outcome in the circumstances. She maintains that cl. 1.10.3(g) WDCP specifically applies to dual occupancies and the current situation is compliant and to replace that with a hardstand forward of the building line is a retrograde step. In addition, she opines that it will be more difficult for someone reversing from the hardstand to see pedestrians and therefore there is a greater risk to pedestrian safety.

30. In regards to other aspects of amenity, Ms Gordon is of the view that the highlight windows provide a poor level of amenity to the occupants of the room and add little to the design of the building as they are smaller in size and of a different form to any others.

Submissions

31. Mr Boskovitz for the applicant contends that the proposal satisfies the relevant objectives for FSR, it does not increase the bulk or scale of the building, it does not generate more parking and is contextually consistent with other development in the street, particularly in regards to parking forward of the building line. He also maintains that given Mr Karavanas’ evidence in regards to traffic generated by residential uses, the amenity of anyone in bedroom 4 will not be adversely affected. Overall, Mr Boskovitz submits that Mr Karavanas’ opinion should be preferred.

32. Ms Morton for the council presses Ms Gordon’s evidence and in particular her statement on p. 5 of the joint report that the proposal’s non-compliance with the parking arrangements in WDCP are not a result of a constraint of the site but rather a result of seeking an increase in floor space. She asserts that cl. 4.4(1) objective (d) is not met as the proposal does not preserve the environmental amenity of neighbouring properties and minimise adverse impacts on the amenity of the locality. That is, the FSR controls have a role in limiting other impacts.

31. With respect to the proposed hardstand forward of the building line, Ms Morton contends that consent is sought for the least desirable option when the current situation is compliant. Further, she contends that the parking controls call for wheel strips forward of a building line but in this case there is a concrete apron. Ms Morton argues that approval of the proposal would be antipathetic to the controls and not in the public interest.

Findings

34. With the benefit of the site inspection and the expert evidence, and having regard to the matters to be considered in s 79C of the Act, for the following reasons I am not satisfied that Development Application 482/2014 should be approved.

35. While I agree with the planners that conversion of the garage to a bedroom does not add bulk to the building it does however create other impacts, in particular, the need for parking forward of the building line. To that end I am not satisfied that FSR objective (d) in cl. 4.4(1) is met.

36. Of significance are the controls in WDCP for parking and in this matter, these are the focus of my consideration. Although there are many examples of hardstands, carports and garages in the front setbacks of many dwellings in the street, it would appear that the majority of those were approved under earlier controls. I agree with the council that the current parking arrangements on site comply with preferred option (ii) in cl. 1.10.2(b) WDCP and the proposal is a retrograde step to the least preferred option. While the proposal does tick the boxes in regards to the factors that may support a hardstand forward of the building line, these are usually considerations where no on-site parking exists and the site constraints are such that any parking on site could only be located forward of the building line.

37. I also agree with the council that the current parking arrangement complies with cl. 1.10.3 (g) WDCP in regards to the design of parking for dual occupancies in that parking is to utilise a shared access way and is to be located behind the front building line. It also complies with cl. 1.10.3(b) in that the car parking is sympathetically integrated into the design of the dwelling and is secondary in area and appearance to the residence and the site. Again, given the current controls, it would be a retrograde step to approve something counter to these design principles.

38. With respect to the amenity of future residents of bedroom 4, I also agree with council that the amenity is compromised by the necessity to install highlight windows because of the proximity parking spaces on two elevations. In my view this is a poor planning outcome. I also agree with Ms Gordon’s comments on the design of the windows.

39. In regards to the construction of a bin storage area in the front setback of the property, the demonstrated fact that a large bin can be wheeled from the rear open space of dwelling 2 to the street does not justify this element of the proposal and the unnecessary visual and other amenity issues associated with it.

Orders

40. As a consequence of the forgoing, the Orders of the Court are:

1. The appeal is dismissed.

2. Development Application DA-482/2014 for the conversion of a single garage into a bedroom and construction of a first floor balcony extension at 34 Imperial Avenue, Bondi is determined by refusal.

3. The exhibits except A and 2 are returned.

__________________________

Judy Fakes

Commissioner of the Court

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Decision last updated: 03 March 2015