Amavid Pty Ltd v City of Canada Bay

[2009] NSWLEC 1430

Land and Environment Court

of New South Wales

CITATION:

Amavid Pty Ltd v City of Canada Bay [2009] NSWLEC 1430

PARTIES:

APPLICANT
Amavid Pty Ltd

RESPONDENT
City of Canada Bay

FILE NUMBER(S):

10714 of 2009

CORAM:

Hussey C

KEY ISSUES:

DEVELOPMENT APPLICATION :- Garage/crossing width, streetscape impact, safety, loss of on-street parking.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Canada Bay Local Environmental Plan 2008

CASES CITED:

Super Studio v Waverley [2004] NSWLEC 91

DATES OF HEARING:

14 December 2009

EX TEMPORE JUDGMENT DATE:

14 December 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr D. Leyonhjelm (A. I.P)

RESPONDENT
Mr A Seton (solicitor)
SOLICITOR
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

14 December 2009

10714 of 2009 Amavid Pty Ltd v City of Canada Bay

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

Background.

1 This appeal was lodged against council’s refusal of a development application for the installation of 2 new double garage doors and a new vehicular crossing to an existing garage located at 134 Lyons Road, Drummoyne. This property is situated on the north-western corner of Lyons Road and Moore Street and the proposed works are to be undertaken in the Moore Street frontage, which is approximately 45m.

2 The works involve the insertion of the 2 double garage doors into the southern wall of the garage fronting Moore Street, which has a setback in the order of 1m. The length of the garage openings is in the order of 12m and the proposal includes the construction of a concrete crossing with a width of approximately 11m. There is a Murraya hedge adjacent to this wall that is to be removed.

3 The applicant has submitted that the crossing construction be of a “grass-tax” type specification, which comprises concrete blocks that allow a grass cover to reduce the visual impact of the concrete.

4 The issues for the appeal are summarised as:

The proposal would result in unsatisfactory streetscape impacts.
Non-compliance with the council’s Driveway Construction Policy in terms of excessive width.
Potential safety and convenience concerns.
Loss of on-street parking space.

Planning controls

5 The following controls have been listed in the statement of facts and contentions as relevant in this matter:

Canada Bay LEP 2008 ; under which the site is in the B1 Neighbourhood Centre zone and is permissible with consent. The proposal is defined as parking ancillary to a ‘Business Premises’.
Canada Bay Development Control Plan (DCP); with the relevant section being Part 7 dealing with mixed uses.
SEPP No 55 – Remediation of land.
City Assets Policy – Specification for Driveway Construction.

The evidence

6 Detailed evidence was presented in a joint report by:

Mr G El Kazzi; council’s traffic engineer.
Mr G Pindar; applicant’s traffic consultant.
Mr S Ardlie; council’s statutory planner.

Streetscape issues

7 Insofar as the experts agreed there are no comparable driveways of the proposed scale and dimensions in Moore Street, Mr Ardlie undertook his assessment on the basis of the provisions of the DCP provisions in Part 7 – Mixed uses and neighbourhood centres.

8 These provisions include the following objectives and controls, which the council submits are relevant in this matter:

7.1 General objectives
02 To encourage development that is compatible with the character and form of existing development in the area.
7.2 Building design and appearance
02 To ensure infill development is well articulated, makes a positive contribution to the streetscape and responds to the local urban character.
03 To ensure development presents a clear and visually interesting address to the street.
7.8 Parking
Objective 02; To ensure parking areas do not detract from the streetscape.
Controls
C1 Parking should not detract from the streetscape qualities, while meeting the needs of visitors and employees in the commercial areas.
C2 On site car parking should be provided below ground or located within the building and well screened.
C3 Vehicular access ways are to be integrated with the building and of minimum height and width.

9 Accordingly, Mr Ardlie concludes that the proposal is unacceptable in terms of these controls and that its approval would create an undesirable precedent in the locality and adversely impact on the streetscape. The removal of the vegetation would leave the proposed garage doors and vehicular crossing more visually dominant in Moore Street.

10 Against this, the applicant submitted that the visual impact depends on a subjective assessment. As the existing Murraya hedge is on private property it may be removed and should not be regarded as a significant element in the streetscape. Whilst there will be a change in the streetscape presentation, this can be addressed to a reasonable extent by the placement of the “grass-tex” paving to reduce the visual impacts.

Traffic/parking

11 In assessing the traffic issues, Mr El Kazzi and Mr Pindar agree that council’s policy nominally allows a maximum driveway width of 7m for properties with a frontage length between 20 – 30 m. For longer frontages, the crossing width is at the discretion of council’s engineer. As the frontage is 42.63m, Mr Pindar supports the wider crossing width of 11m, even though there are no others of this size in Moore Street.

12 However Mr El Kazzi maintains that in the circumstances, the maximum width should be 7m. He says that a wider crossing would introduce a safety hazard for pedestrians and likely allow increased speed and manoeuvring across the footpath and is unnecessary for the given capacity of the 4 – car garage.

13 With regard to the loss of on – street car parking, the experts agreed there would be a loss of 1.3 spaces.

Conclusions

14 Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent.

15 It is apparent from the controls that an assessment is required to ensure that developments do not detract from the streetscape. In this case, the proposed double garage doors would require a concrete crossing in the order of 11m wide at the boundary. This is considerably wider than any other crossings in Moore Street. Considering then that the footpath width is in the order of 6m wide, this represents a significant increase in paving area compared to the existing grassed areas.

16 In this regard, I note that the next large crossing is to the RFB to the north of the site and it has a maximum width of approximately 8m to service some 17 units. As the proposal is to service 4 vehicles, and there are alternative options, I consider the proposed width is excessive and the resultant hard paved area will detract from the existing streetscape.

17 Whilst the status of the hedging was not established, its existence is consistent with the DCP controls, resulting in a positive contribution to the streetscape. I do not consider the alternative wider crossing, with a small intermediate planting adequately enhances the streetscape. Accordingly, I rely on Mr Ardlie’s opinion that this proposal does not reasonably satisfy the relevant Part 7 controls.

Traffic/parking

18 For the assessment of the engineering matters, the relevant controls are mainly contained within the driveway Policy, which I understand council has consistently applied. I therefore rely on its provisions in assessing the merits of this application.

19 The stated objective of the Policy is:

“To ensure uniformity in the design and construction of vehicular crossings in the City of Canada Bay local government area so that safe and convenient access to and from parking spaces on the property can be provided .”

20 Clause 14 details the desired driveway widths on the basis that the width of any crossing to a property must be kept to a minimum so as to:

not compromise pedestrian safety by encouraging vehicles to cross the footway at greater speeds,
minimise the area for pedestrian refuge ,
not detract from the streetscape by increasing the amount of visible hard paving, and
not reduce the amount of on-street parking.

21 Clause 16 generally permits only 1 crossing per residential development, although 2 may be permitted in the commercial/industrial areas. There is a qualification that where access is off the same frontage, a minimum gap of 1m is to be left so as to prevent the driveways being used as one.

22 It is apparent that the controls seek to limit the number and size of vehicular crossings to reduce adverse impacts. I have therefore considered this aspect in the context of the submissions made for council regarding the planning principles in Super Studio.

23 This general principle is appropriate for assessing the acceptability of an impact in terms of the reasonableness of, and necessity for, the development to be considered. This was set out by Roseth SC in Super Studio v Waverley [2004] NSWLEC 91. The Senior Commissioner said:

15. Several planning principles are relevant to the determination of this appeal. The first is that the acceptability of an impact depends not only on the extent of the impact but also on reasonableness of, and necessity for, the development that causes it. For example, the privacy impact of a second-storey side window in an area of two-storey buildings should be accorded a higher threshold of acceptability than the impact of a second-storey balcony in a house that already has three other balconies.

24 Adopting and applying this principle to the present case, I have considered the evidence on the necessity for the large crossing and additional garage doors against retaining the use of the existing driveway alignment and reconfiguring the garage internally to contain the 4 cars, albeit in tandem arrangement. It seems to me from the expert evidence that there is agreement this option is possible and that it would not result in any loss of on street car parking space. Whilst there may be some inconvenience for the users, I understand this parking is primarily for the staff whose main usage in morning entry and evening exit. Therefore it should be possible to manage these movements with minimum disruption.

25 Whilst I accept Mr Pindars evidence that the proposal can work satisfactorily, I do not consider it reasonably satisfies the aforementioned controls. In particular its excessive width, which I consider would allow increased traffic movements and manoeuvring across the footpath and likely increase risks to pedestrians.

26 Also, due to the proposed crossings close proximity to the adjoining residential crossing, the proposed crossing will effectively connect to it, resulting in an excessively wide ‘combined’ crossing, in the overall streetscape. This relatively large crossing would facilitate increased vehicular use of the footpath area and likely increase risks to pedestrians, which I consider is a negative aspect of the proposal.

27 Such a crossing would then be constructed in concrete to satisfy the requirements of cl 21 of the Policy. In the absence of any substantive evidence of the unreasonableness of this policy requirement, I am satisfied that this construction specification be maintained.

28 In summary then, I am satisfied that the construction the 2 double garage doors and associated crossing of the proposed width and length would resultant in unacceptable streetscape impacts and not reasonably satisfy the provisions of the DCP and Policy. In this case, I consider that an appropriate balance between the competing private and public interests is achieved by closed adherence to the provisions of the DCP and Policy.

The Court orders:
1 The appeal is dismissed.
2 Development consent for DA No 392/2008 for 2 double garage doors and construction of associated vehicle crossing at 134 Lyons Road, Drummoyne is refused.

3 The exhibits may be returned except 1 and A.

________________________
R Hussey
Commissioner of the Court
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