Allen Raymond Lakeman v Waverley Council
[2006] NSWLEC 134
•03/20/2006
Land and Environment Court
of New South Wales
CITATION: Allen Raymond Lakeman v Waverley Council [2006] NSWLEC 134 PARTIES: APPLICANT
RESPONDENT
Allen Raymond Lakeman
Waverley CouncilFILE NUMBER(S): 11591 of 2005 CORAM: Hoffman C KEY ISSUES: Appeal :- Development application for on site carpark, streetscape, loss of landscaped area on existing site, amenity impact on neighbours, pededstrian/vehicle conflict, visual impact on existing site and neighbours. LEGISLATION CITED: Waverley Local Environmental Plan 1996
Waverley Development Control Plan No. 14DATES OF HEARING: 20/03/2006 EX TEMPORE JUDGMENT DATE: 03/20/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr G Newport, barristerRESPONDENT
Mr M Staunton, solicitor
SOLICITORS
Staunton Beattie
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
11591 of 2005 Allen Raymond Lakeman v20 March 2005
Waverley Council
JUDGMENT
1 This is a class one appeal No. 11591 of 2005 between A R Lakeman and Waverley Council in regard to the refusal of a parking space on-site at No. 176 Ebley Street, Bondi Junction. The site is a 3-storey Art Deco block of nine flats on a site of 588 sq m. It is at a dead end of Ebley Street and its only frontage is the width of the footpath as the site is offset from the road at the very end. As a result the frontage is about 3.8 m.
2 The site has no drive entry. Next to it at No. 174 Ebley Street is a semi-detached house with a brick front fence and no drive entry. Outside it is a footpath, a grass verge and a street tree. To create a drive entry to the subject site there has to be a concrete driveway across most of No. 174, the tree and grass verge must be removed and a bollard placed near No. 174’s pedestrian gate in order to protect any pedestrians using the narrow gate at the same time a vehicle might be exiting from or reversing into the subject site.
3 There is agreement between the parties that the street tree is in poor condition and in due course should be removed and replaced by the council. If the subject proposal is granted, the tree would need to be located further to the west along Ebley Street away from the frontage of No. 174.
4 As part of the proposal, in order for a vehicle to enter the site it would require a three point reversing turn. To some extent the site is favoured by a ‘no stopping’ area in front of No. 174 that would enable this movement without reducing on-street parking.
5 Ebley Street is very close to Bondi Junction shopping centre and is in high demand for on-street parking. There is a one hour time limit and vehicles on one side of the road park at right angle to the kerb and those on the other park parallel. There is a mixture of houses, semi-detached houses and 1920’s and 1930 style apartments.
6 One of the main motivations for the application is that service personnel coming to the subject site have complained of having to park their service vehicles down the street and carry equipment back to the site, and also having to move vehicles every hour or risk the parking fine, and there has also been reported incidents of goods being stolen from their vehicles.
7 The applicant had originally asked for two on-site car spaces but had reduced to the one service vehicle space. It is to be behind the alignment of nearest wall of the apartments to the street in what might be called a side setback. It was however, directly in alignment with the visual axis from the street.
8 At the dead end of the street is No. 145 which is also a three storey apartment block of Art Deco flats that have been renovated with new balconies added to the outside and carparking spaces on-site. I was told this development was approved prior to the relevant Development Control Plan No. 14 that brought in more stringent controls on urban design impacts of providing carparking. This control also considered parking on old sites where no carparking had been provided.
9 The issues were:
1. Whether or not the proposal is an unacceptable development in Residential 2(b) zoning under Waverley Local Environmental Plan 1996 (WLEP 1996), in regard to zone objective (b) concerning local amenity and plan objectives (a), (b), (d) and (e) concerning traffic and transport.
Particulars
The proposal is considered to conflict with the zone objective (b) to maintain and improve the amenity and existing characteristics of the locality and plan objectives in clause 11 in WLEP 1996, the specific aims that the proposal is considered are shown below.
(11) The specific aims of this Plan in relation to traffic and transport are:
(a) to minimise the adverse impact of traffic on all land uses by ensuring adequate consideration is given to the impact of traffic when development applications are assessed;
(b) to encourage land use patterns which reduce the need to travel by motor vehicle and increase the use of public transport, bicycles and walking to reduce the adverse impact of travel on the environment;
(d) to ensure all development involving traffic gives adequate consideration to the needs of cyclists and pedestrians;
(e) to minimise conflict between pedestrians and vehicles by ensuring adequate consideration is given to the location of vehicular entry and exit points;
2. Whether or not the proposal is acceptable in respect to Part 2 Parking Provision and Part 4 Design Guidelines for Parking and Loading Facilities in Development Control Plan 14 - Land Use and Transport (DCP 14).
Particulars
Part 4 of the DCP provides for urban design guidelines for car parking facilities and design considerations and new parking facilities, in particular the relevant provisions are:There are no carparking provision requirements for existing development in Part 2 of the DCP 14. The strategic planning rationale for car parking provision (see Part 2.0 of the DCP) would seek to limit new car parking facilities to a well located residential flat building, as is the subject site. The DCP provides a clear preference for a balanced approach to transport and favours pedestrian, bicycle and public transport over car use.
4.1 Design Considerations
· Pedestrian and cyclist amenity of street is maintained or improved
· On-street parking is protected by minimising impacts of additional vehicular kerb crossings.
· Car parks and vehicular access do not dominate the streetscape.· The continuity of streetscapes, streetscape elements and landscaping is maintained
4.2 Design of parking and access
(a) All car accommodation is to be located behind the front building line.
(d) The external appearance of any parking or loading structure or area is to be of a high standard and finish when viewed from the street. Landscaping is to be used to soften the impact of such areas.
(e) Open driveways and parking spaces in residential flat developments are to be exposed aggregate, grasscrete or other quality finish.4.3 New Vehicle crossings
b) Where there is no car parking on an original lot and off-street parking is not characteristic, vehicular access from the street is not allowed.
3. Whether the proposed car parking area is considered constrained and to provide for adequate vehicular manoeuvrability.
Particulars
The driveway/car park area provides inadequate aisle width for cars to manoeuvre and enter and leave the site in a forward direction
4. The location and design of the proposed car parking facilities are considered to create an unacceptable impact upon the existing streetscape, in respect to loss of landscape and pedestrian amenity and to degrade the public domain.
Particulars
The main pedestrian entrance to the subject flats will be degraded, as will the current landscape context of this building by the proposed driveway. The driveway will also unreasonably "cut” the stone kerb and remove existing vegetation from the frontage of the site and house to the west of the site.
5. The proposal is not considered to be in the public interest.
Particulars
Given the above adverse neighbourhood amenity impacts the proposal is not considered to be in the public interest.
10 Attendances at the on-site hearing were for the applicant:
§ Mr G Newport, barrister
§ Mr & Mrs A Lakeman, applicants and
§ Mr Betros, consultant town planner.
11 Attendances for the respondent were:
§ Mr M Staunton, solicitor
§ Mr Hartley, solicitor
§ Mr Bull, council’s town planner
§ Ms P Deaves of No. 174 Ebley Street and
§ Ms D Chew, representing Ms Deaves.
12 The evidence on the merits of the matter from the expert town planners is in direct conflict. Mr Bull said the considerations of the Local Environmental Plan and Development Control Plan showed there would be significant affects and Mr Betros said that tucked away at the end of the cul-de-sac over on the side of the street the urban design impacts could never be classified as “significant” that being the test under the Development Control Plan.
13 Ms Deaves and Ms Chew said, already the front of Ms Deaves’ house is used to put garage bins out from the subject site, and the bins frequently stay out for a full day and a night before being put back into the subject site. The applicant said that the bins were put in and out by a janitor and that such occurrences should be seldom. Ms Deaves said to her knowledge the janitor did not live on site and perhaps the applicants did not know what happened on a regular basis.
14 Ms Deaves has a medical condition that requires regular sleep even during the day. She said there is frequent disturbance by drivers coming up Ebley Street and not realising it is a dead end and squealing tyres, engine revving and reversing. She did not want her house subjected to more noise. She thought that the construction of a concrete driveway right up to her front fence would take away the protection of the tree and the footpath for whatever benefit it currently provided against these disturbances and added the activity of vehicles going on and off the subject site.
15 The parties agreed that the street tree outside Mrs Deaves’ house and near the subject site could be removed. If the proposal is allowed it would necessitate moving any new tree further away from Mrs Deaves’ house and replacing it with a concrete driveway thereby reducing her current streetscape amenity. Mrs Deaves is also concerned that the change to the streetscape presentation of her house may have the effect of devaluing when it came to its being sold.
16 In regard to streetscape impacts Mr Bull said that although the site is at the end of the street, the car space and any cars in it must be in full view and must be less attractive then it is now. Currently there is landscaping on the site and the grass verge and footpath where the driveway and parking space and car would be. Also Mr Bull said when a vehicle is reversing on to the site or exiting, pedestrian and cyclists from the site would have potential conflicts.
17 On the use of the space by service vehicles it was put to me by both parties that its use would be infrequent depending on the demands for servicing of the site. It was also intended that there would be a specific sign to indicate that the space should only be used for service vehicles. It was also put to me that the main period of service vehicle use would be in daylight hours. Bearing in mind the high demand for carparking in Ebley Street I turn my mind to the potential for it to be occupied even at night times by other vehicles than service vehicles.
18 Overall I believe that the respondent’s evidence has the greater weight.
19 The insertion of a seldom used service vehicle parking space on the site does not justify the impacts on the neighbours and on the streetscape.
20 Other alternatives may be available. Some aspects of urban design considerations puzzle me. I was told that the concept of having an on-street loading zone for service vehicle parking near the end of the cul-de-sac had never been canvassed by the council or the applicant. It seems to me that would provide a much needed public facility for all of the residents. Many of the houses and flats in the street appear to have no vehicle access, although I was told some had rear lane access.
21 The orders of the Court are:
- 1. The appeal is dismissed.
- 2. The exhibits are returned to the parties except Exhibits A, C, D, E, 2, 3, 4 and 6.
___________________
K G Hoffman
Commissioner of the Court
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