Arkibis Pty Ltd t/a Arkhaus v Randwick City Council

[2019] NSWLEC 1020

Land and Environment Court

New South Wales

Medium Neutral Citation:	Arkibis Pty Ltd t/a Arkhaus v Randwick City Council [2019] NSWLEC 1020
Hearing dates:	5 December 2018
Date of orders:	22 January 2019
Decision date:	22 January 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The appeal is upheld; (2) Development Application No. DA/252/2017, as amended, for: demolition of the existing outbuilding and garage; alterations and additions to the existing residential flat building and construction of a new two storey residential flat building to the rear of 4 Prince Street, Randwick; is approved subject to the conditions in Annexure A; (3) The exhibits are returned with the exception of Exhibits 1, A and E.
Catchwords:	DEVELOPMENT APPLICATION: alterations to an existing residential flat building – construction of four additional units at the rear – whether provision of no onsite parking is acceptable in circumstances of high public transport provision - precedent
Legislation Cited:	Environmental Planning and Assessment Act 1979 Randwick Local Environmental Plan 2012 Roads Transport Act 2013 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Cases Cited:	Dennes v Port Macquarie-Hastings Council [2018] NSWLEC 95 Dimitri Dilles v Randwick Council [2017] NSWLEC 1202 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Savellis v Sutherland Shire Council [2018] NSWLEC 100 Sheer Property Group Pty Ltd & anor v Randwick City Council [2013] NSWLEC 1168 Turner Architects v City of Botany Bay Council [2016] NSWLEC 1186
Texts Cited:	Randwick Development Control Plan 2013 The Impact of Car Share Services in Australia, Phillip Boyle & Associates, 2016 Australia standard AS/NZ 2890.1.2004 Parking Facilities (AS 2890.1-2004)
Category:	Principal judgment
Parties:	Arkibis Pty Ltd t/a Arkhaus (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicant) J Reid (Respondent)   Solicitors: Conomos Legal (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2017/331909
Publication restriction:	No

Judgment

Nature of Proceedings and Outcome

1. COMMISSIONER: The Applicant seeks consent for alterations and additions to the existing building on site at 4 Prince Street, Randwick and construction of four new residential units in the existing rear yard of the site. Given the period after which a development application is deemed to be refused had expired, in November 2017, the Applicant appealed to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“the Act”).

2. The application was amended by leave of the Court in June 2018. The amendments include:

• raising the ground floor level of the proposed two storey residential flat building at the rear of the site by 520mm;

• a concurrent increase in the height of the rear building by 520mm; and

• demolition of the existing driveway at the site and introduction of a new car pod car share space.

3. Following these amendments the Council maintains that the application should be refused by the Court on the grounds that: the development provides no onsite parking to service the residential development; provides insufficient justification to support the variation to Council’s residential parking rates; and the approval of the application would provide an undesirable precedent.

4. In its Amended Statement of Facts and Contentions the Council provides further particulars as follows:

“1. The development application should be refused because the proposed development removes existing on-site car parking, provides no car parking at all and therefore fails to cater for the parking demands of the development, which is contrary to the development standards prescribed by clauses 1.1, 2.5, 3.2 and 3.3 of Part B7 of RDCP 2013.

…

2. The development application should be refused because it has not been demonstrated that the usage of the car pod car share space at the site would remove the need for the required number of on-site car parking spaces as required pursuant to clauses 1.1, 2.5, 3.2 and 3.3 of Part B7 of RDCP 2013.

…

3. The development application should be refused because approval of the proposed development would set an undesirable precedent for similarly inappropriate development.”

(Ex 1)

5. Following a consideration of the evidence presented and the submissions of the parties I am satisfied that the variation to the car parking rates sought by the application is appropriate in the circumstances of the subject site. I am persuaded by the evidence that whilst no onsite parking is proposed, the site is, and will be, appropriately serviced by proximate and high quality public transport. I am satisfied that the additional car share pod will assist in servicing the transport needs of the residents of the site and in the vicinity of Prince Street. As such I find that the development application warrants approval and the appeal should be upheld.

The site and its locality

6. The subject site is 4 Prince Street Randwick, Lot 11 DP17536. The site is situated on the western side of Prince Street between the cross streets of King Street and Cowper Street.

7. The site has a total area of 621.6m² and currently contains a two storey residential flat building, and a double garage at the rear of the site.

8. The site is not a heritage item nor contained within a heritage conservation area. However immediately to the north of the site is 2 Prince Street, to the west of the site is 3 Mulwaree Avenue, two storey residential flat buildings that are local heritage items.

9. The locality is residential in character and the existing buildings in proximity of the site are predominately interwar brick flat buildings.

10. The traffic experts make the following agreed comments in relation to the sites proximity to existing public transport and the light rail transport corridor (currently under construction).

“6.8 Both CM and BL agree that the site is situated within easy walking distance of existing public bus and planned (under construction) light rail transport corridor.

6.9 To put this in clearer context, the site is only:

(a) a 250m walk from the UNSW campus at King Street.

(b) a 400m walk from the TAFE Randwick campus.

(c) a 13-minute walk or 6- minute bus ride to/from the Randwick retail centre (including the shopping centre) at Belmore Road.

(d) a 15-minute walk or 9-minute bus ride to/from the Prince of Wales Hospital at Barker Street.

(e) a 15-minute walk or a 9-minute bus ride to/from the UNSW main campus entry (Gate 8) at High Street.

(f) a 19-minute bus ride to/from the CBD.

(Ex 3)

Expert Evidence

11. The applicant relied on expert traffic evidence of Mr Bernard Lo and the Council relied on the expert traffic evidence of Mr Craig McClaren. The experts prepared a joint report that was tendered as Exhibit 3.

Planning Controls

12. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate has been submitted with the development application and the relevant requirements incorporated in the proposal. The proposal is considered to satisfy the requirements of this policy.

13. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development. Clause 28 requires consideration to be given to the design quality principles (cl 28(2)(b)) and the publication Apartment Design Guide(ADG)(cl 28(2)(c)).

14. The site is zoned R3 Medium Density Development pursuant to Randwick Local Environmental Plan 2012 (LEP 2012). Relevant to these proceedings the aims of LEP 2012 are:

(a)  to foster a liveable city that is accessible, safe and healthy with quality public spaces and attractive neighbourhoods and centres,

…

(c)  to support efficient use of land, vibrant centres, integration of land use and transport, and an appropriate mix of uses,

(d)  to achieve a high standard of design in the private and public domain that enhances the quality of life of the community,

(e)  to promote sustainable transport, public transport use, walking and cycling,

(f)  to facilitate sustainable population and housing growth,

(g)  to encourage the provision of housing mix and tenure choice, including affordable and adaptable housing, that meets the needs of people of different ages and abilities in Randwick,

(h)  to promote the importance of ecological sustainability in the planning and development process,

(i)  to protect, enhance and promote the environmental qualities of Randwick,

(j)  to ensure the conservation of the environmental heritage, aesthetic and coastal character of Randwick,

…

15. The proposed use, residential flat building, is permissible with consent in the R3 Medium Density Development zone. The objectives of the zone are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.

• To protect the amenity of residents.

• To encourage housing affordability.

• To enable small-scale business uses in existing commercial buildings.

16. The height of buildings development standard applicable for the site is 12.5m and the parties agree that the development complies with the height development standard (cl 4.3 LEP 2012).

17. The floor space ratio development standard applicable for the site is 0.9:1 and the parties agree that the development complies with the development standard (cl 4.4 LEP 2012).

18. The Randwick Development Control Plan 2013 (DCP 2013) applies to the site. The relevant provisions of DCP 2013 are:

1. the objectives of DCP 2013 at ‘A1: About this DCP’, which states:

“1.2 Objectives

The objectives of this DCP are to:

• Provide detailed guidance for development on the aims, objectives and controls of the RLEP;

• Support the integration of land use and transport planning in providing for housing and employment;

• Ensure quality design that reflects a site’s character and context;

• Ensure development is economically, socially and environmentally sustainable;

• Ensure development demonstrates architectural merit and incorporates high quality materials and finishes; and

• Protect and enhance remnant native vegetation, habitat corridors, biodiversity and wetland areas.”

2. ‘A2.3 Achieving the numerical controls’ which provides criteria for the assessment of variations to the provisions of DCP 2013. It states:

“2.3 Achieving the numerical controls

Proposals are expected to comply with the numerical controls in this DCP. Any proposed variation from the controls may be considered only where the applicant successfully demonstrates that an alternative solution could result in a more desirable planning and urban design outcome. This ensures that the DCP guidance has sufficient flexibility to recognise that every property has different characteristics based on their unique combination of site conditions, size, aspect and location. The context and site analysis will be critical in demonstrating the need for any variation to the numerical controls.

Any proposals seeking to vary the numerical controls will be assessed against the following criteria:

i) Consistency with the general objectives of the LEP, and the general objectives and specific control objectives of this DCP.

ii) The degree or numerical extent of variation from the control.

iii) The presence of any existing site constraints rendering strict compliance difficult to achieve, such as:

- Site topography

- Site orientation

- Allotment configuration

- Allotment dimensions

- Existing building structures to be retained

iv) Potential impacts on the structural stability, visual amenity, solar access, privacy and views of the adjoining properties as a result of the variation.

v) Potential impacts on the public domain in terms of streetscape character, views and vistas and pedestrian amenity.

vi) Whether strict compliance with the controls will or will not permit construction of a building with reasonable dimensions, internal amenity, open space provision and architectural character.”

3. Part B7: Transport, Traffic, Parking and Access. The objectives of this part of DCP 2013 are:

“1.1 Objectives

• To promote sustainable transport options for development, particularly along transport corridors, in commercial centres and strategic/key sites.

• To manage the provision of car parking within the broader transport network.

• To support integrated transport and land use options which can demonstrate shared and effective car parking provision with car share facilities, motorbikes/scooters, bikes and links to public transport.

• To ensure car parking facilities, service and delivery areas and access are designed to enhance streetscape character and protect pedestrian amenity and safety.”

4. DCP 2013 addresses Car Share at Section 2.2 of Part 7. The objectives of this section are:

“Objective

� To encourage car share spaces in developments with high public transport access.

Controls

i) Car share spaces are to be provided in residential and/or commercial development where public transport accessibility is high and/or where a Transport Assessment Study is required.

ii) Locate the car share space/s in a convenient, accessible, secure area.

...”

5. Section 2.5: Traffic and parking study requirements:

“Controls

i) Depending on the type of development one or more of the following will be required to be submitted with the development application:

a. Transport Assessment Study and Travel Plan

b. Parking and Access Study

…

Transport Assessment Study Requirements

A Transport Assessment Study is a technical investigation into the transport and safety issues that might arise from a development. It also assesses the transport related impacts on the surrounding transportation network that are generated by a development and how those impacts are to be managed. Such a study recognises the role of traffic within a broader transport system that includes public transport, walking and cycling.

…

Parking and Access Report

A parking and access report is to assist in determining the most appropriate level of car parking for a development and is to accompany DAs for smaller scaled development. The requirement to provide such a report will depend on the type, scale and potential traffic impact of the proposed development and will be determined by Council at pre DA stage.

The Parking and Access report should incorporate a survey of available on-street parking within walking distance from the site (including Thursday evening and Saturday morning).”

6. Section 3.2 : Vehicle Parking Rates

“Explanation

The vehicle parking rates apply to all new development, alterations and additions to existing development and change of use.

…

Objective

� To ensure that an appropriate level of off-street vehicle parking is provided.

Controls

i) Development must comply with the vehicle parking rates as detailed in Table 1 Vehicle Parking Rates. Any excess provisions over and above the parking rates will be included in GFA calculations.

ii) Parking for service/delivery vehicles, bicycles and people with a disability need to be considered for the relevant land use and in accordance with this DCP.

iii) Where a parking rate has NOT been specified in the table, the RMS Guide to Traffic Generating Developments shall be used to calculate the parking requirements for the proposed development and/or a Transport Assessment Study may be used to determine the parking, subject to approval by Council.

iv) Minimise the use of mechanical parking devices (car stackers or turntables) particularly on difficult (eg constrained access) sites and where queuing may result or safety is jeopardised. v) For mixed use development the allocation of car spaces among the uses is to be indicated on the DA plans.

...”

7. The relevant parking rates for the subject development are:

8. DCP 2013 addresses exceptions to Parking Rates at Section 3.3. It states:

“3.3 Exceptions to the Parking Rates

Explanation

…The DCP provisions continue to acknowledge that applicants may seek variations where suitable and sustainable transport alternatives are considered and incorporated into the development.

There may be circumstances where it may not be physically possible or aesthetically desirable to provide parking (eg the provision of off street parking in the frontage of a heritage item or in areas of significant streetscape value).

It is the responsibility of the applicant through the development assessment process to demonstrate that the proposed level of parking provision is adequate, or that the overall planning benefits of the proposed development outweigh the deficiencies.

Controls

i) Any variation to the parking rates must address the following issues (as relevant to the particular development):

(a) Type and scale of the development and its potential impact on local traffic and parking conditions.

(b) Survey of parking provision in comparable recent development.

(c) Existing parking facilities already provided prior to further development.

(d) Site and building constraints.

(e) Heritage and urban design considerations including significant streetscape elements such as sandstone retaining walls, significant mature trees etc

(f) On street and public parking in the area, as well as proximity and access to public transport.

(g) Location of local services, employment, retail and recreational facilities.

(h) Safety of vehicles, pedestrians and cyclists.

(i) Provision of any integrated, sustainable transport options on site.”

Public Submissions

19. The application was publically notified in accordance with the requirements of DCP 2013. The Council received twelve submissions, all which raised objection to the development. Their concerns are summarised in the Council’s Statement of Facts and Contentions as follows:

1. insufficient parking.

2. traffic

3. tree preservation

4. privacy impacts

5. amenity impacts (loss of solar access and noise impacts)

6. streetscape impacts

7. disruption arising from the development.

8. impacts on heritage items.

Is the provision of no onsite parking for the proposed development acceptable in the circumstances?

20. It is Mr McLaren’s evidence that, whilst the subject site is within easy walking distance of existing public transport and additional light rail services that are under construction, onsite parking provision should be maximised. Further he argues that kerb side parking in the vicinity of the site is highly utilised with little or no spare capacity. It is his evidence that tenants of the subject site are unlikely to be able to park on street nearby the site.

Existing Driveway:

21. The width of the current driveway is constrained by the siting of the existing building which is sought to be retained by the Applicant.

22. In relation to the feasibility of the existing driveway as a means of accessing the garage to the rear, it is Mr McLaren’s evidence that ‘while the onsite vehicular access corridor width is restricted, it is straight, and has been previously used by vehicles and could also be conditioned for use by existing and future tenants restricted to small cars and motorcycles” (Ex 3) . Further Mr McLaren argues that a non-compliant car parking access can be accepted for vehicular access for low speed/ low volume environments, subject to detailed assessment. He suggests that the use of the onsite parking, and the access to it, can be restricted by condition to cars smaller than the B85 design vehicle referenced in AS 2890.1-2004.

23. It is Mr McLaren’s conclusion that the application warrants refusal due to the lack of provision of onsite parking to service the development.

21. Mr Lo disagrees with this approach. He argues that the existing driveway is substandard, non-compliant with the relevant Australian Standard and presents a risk to pedestrians and motorists (Ex 3). Mr Lo states:

“The existing driveway handle which provides access to the garage is some 24m long and has varying widths of 2.15m at its narrowest and 2.45 at its widest pints. The driveway is very poorly paved and has no kerb to prevent vehicles from hitting the building wall or the boundary fence. Irrespective of whether there is ‘evidence’ of its use in the past, it does not change the fact that the driveway is significantly deficient (compared) too current design standards (ie. minimum of 3.6m wide inclusive of kerbs).

…

Having regard for the above, my view is that this is not a matter of whether or not the driveway is physically useable, rather a matter of the safety and wellbeing of users who need to use the access on a daily basis.”

(Ex 3)

25. Both experts accept that onsite parking, utilising the current driveway in a manner compliant with Australia standard AS/NZ 2890.1.2004 Parking Facilities (AS 2890.1-2004), is not achievable with the retention of the existing building on the site.

Parking Credit:

26. The experts disagree as to the final onsite required parking provision to meet the parking rates in DCP 2013, and therefore what extent of variation to the development control is sought by the applicant. The principle difference between them is whether a credit is available for the existing building. By strictly applying the rates in DCP 2013, the proposed development generates a parking requirement of nine spaces (reference paragraph 18(6)).

27. Mr Lo argues that in determining the ‘credit’ for the existing units, no consideration should be given to the existing garage as it has a non-compliant access handle, and is not in use. On this basis he concludes that the existing development provides no onsite parking. Therefore he argues that the shortfall is three spaces (the requirement of nine, minus the credit of six for the existing units). With the closure of the driveway crossing on Prince Street (which creates an additional space) Mr Lo argues that the shortfall is reduced to two spaces.

28. In the alternative Mr McLaren argues the there is insufficient evidence to determine that the existing parking is not utilised, and therefore a credit does not apply to all of the existing units. He argues that the existing garages should be considered as existing onsite parking. On this basis he argues that the shortfall is five spaces (the requirement of nine, minus the credit of four for the existing units that are not provided with onsite parking). With the closure of the driveway crossing on Prince Street Mr McLaren concludes the shortfall is reduced to four spaces.

29. Parking occupancy surveys were undertaken by the Applicant in November 2017. An update to this survey was undertaken in March 2018. Mr Lo argues that the survey data demonstrates that: ‘there are at least more than ten spaces available within convenient walking distances of the site at times residents are most likely to be home. During the day, when residents are likely to be away from home, there are some 30-40 spaces available in the study area’ (Ex 3). Mr Lo concludes that the remaining unmet parking demand generated by the development of two spaces will not have an adverse impact on the surrounding streets.

30. In the alternative Mr McLaren does not agree that the proposed development can rely on the on-street parking having sufficient capacity. He argues:

“6.27 The on-street parking surveys presented in the TTPA March 2018 report shows usage levels up to 95.3% which equates to the practical capacity of on-street parking supply when factors such (as) the number of drivers searching for spare parking and how vehicles are parked as to whether sufficient parking is available as there is no line marked bays within the surveyed streets. The survey did not state how many cars are parked illegally (i.e. on verges, across driveways or close to intersections contrary to Motor Traffic Regulations).”

(Ex 3)

31. Mr McLaren concludes that the development should be redesigned to accommodate onsite parking to address the parking demand generated by the development.

Share cars:

32. The application proposes the provision of a GOGET car pod within the frontage of the site.

33. Currently the following GOGET car pods are located within a one kilometre distance of the subject site:

• Site 1: Cowper Street

• Site 2: Randwick Town Hall

• Site 3: Frances Street

• Site 4: Randwick Street near Gordon Street

• Site 5: Church Street

• Site 6: Dangar Street near King Street

• Site 7: Cowper Street near Mulwarree Avenue

• Site 8: Silver Street

• Site 9: Rae Street near Dutruc Street

• Site 10: The Avenue

34. The experts in their joint report, and the traffic and parking assessment report prepared for the application, reference a document titled: The Impact of Car Share Services in Australia written by Phillip Boyle & Associates in January 2016 (‘Boyle Report’). That document concludes that, on an Australia wide basis, each car share vehicle in the network replaces 10 privately owned vehicles in a municipality.

35. GOGET usage data, referenced in the joint expert report, documents that the usage level of the ten GOGET pod sites over the period January 2018 to June 2018 averaged 4.5hrs/day.

36. Mr McLaren disagrees with the above analysis. He presents an alternative assessment focussed on those GOGET locations closest to the site (being sites 1, 6 and 7). These sites have an average usage of 3.9 hours, 3.9 hours and 2.9 hours per day respectively. Relying on the following extract from the Boyle Report, Mr McLaren argues that these GOGET pods have questionable viability:

“A typical usage band by the service providers is between 3-6 hours a day. When a car share vehicle is used more than 6 hours per day, some latent demand is likely to exist and usage is supressed. This typically occurs when too many members are trying to use too few vehicles. When usage is below 3 hours a day the car is not active enough to be financially viable.” (Emphasis added)

(Ex 3)

37. On the basis of the above Mr McLaren argues that the viability of a proposed on-street car share pod along the Prince Street frontage has not been adequately demonstrated given that the three most proximate facilities are utilised less than three hours a day. Further he argues that there is potential that the company may discontinue the pod or relocate it away from the subject site if it proves to be unviable (Ex 3).

38. In response to the concerns raised by Mr McLaren, Mr Lo argues that sites 1 and 6 are viable utilising the measure of viability postulated by the Boyle Report. In relation to site 7 he notes that the utilisation figures provided are influenced by the following factors:

1. the pod commenced operation in October 2017.

2. the pod was initially assigned a Hi-Ace GOGET van.

3. this van was replaced by a standard GOGET car in March 2018

4. Utilisation since the change of vehicle has increased and over the months March to July 2018 has an average utilisation of 3.14hr/day which meets the viability threshold.

Other considerations:

39. Due to the retention of the existing building, and its constraint on any access or driveway width, the assessment of the parking variation against the DCP criteria also involves the consideration of Heritage and urban design matters. Relevantly during the Council’s assessment of the application it was referred internally for heritage comments due to the development location in proximity to two heritage items. Relevantly that referral makes the following comments outlining the benefit of the retention of the existing building:

“The site is occupied by ‘Springfield’, a two storey Interwar flat building, not well maintained, but retaining much of its original character including liver coloured brick walls, terracotta tiled roof, leadlight windows with shaped and textured brick surrounds, concrete entry porch roof, tessellated tiled path lobby and terrazzo stair treads. The building is part of a fine group of Interwar flat buildings on the east and west sides of Prince Street comprising nos. 1-5 Prince Street and nos. 4-14 Prince Street. Immediately to the north of the site on the corner of King Street, is no. 2 Prince Street, a three storey 1930s flat building listed as a heritage item under Randwick LEP 2012. The Randwick Heritage Study Inventory Sheet for the heritage item identifies its significance as “a good example of a 1930s/1940s flat building featuring decorative brick. Excellent streetscape, as part of a group on Prince Street, and on King Street”.

…

All of the residential flat buildings on the east and west sides of Prince Street comprising nos. 1-5 Prince Street and 4-14 Prince Street contribute to the context of the heritage item at no. 2 Prince Street with the subject building being the closest. The subject building façade including decorative face brick walls, terracotta tiled roofs, leadlight glazing and entry porch detail, is highly contributory to the streetscape setting and views towards the adjacent heritage items, particularly no. 2 Prince Street. The retention, repair and maintenance of the subject building will assist in conserving the heritage significance of the adjacent heritage item at no. 2 Prince Street as required by Clause 5.10(4) of Randwick LEP 2012.”

(Ex 2)

Submissions

40. Ms Reid’s principal submissions are that the application should not be approved with the provision of no onsite parking as:

1. there is a lack of certainty of the provision of a car share scheme over the life of the development. As a result DCP 2013 recognises this form of parking provision as a supplement, not as a replacement for all on-site parking.

2. the on street parking within proximity of the site is at saturation as evidenced in the survey data, and the submissions from residents in relation to the subject development. There is insufficient capacity to absorb the shortfall of parking arising from the development on street.

3. it is inequitable for this development to absorb any remaining capacity in the on street parking in the vicinity of the site. The applicant’s assessment indicates that 50% of the available parking spaces will be absorbed by demand generated by the development: Exhibit F.

4. There has been no assessment of the potential impact of parking arising from the proximity of the light rail station on street parking in proximity to the subject site.

5. Council is not satisfied that it is appropriate to vary the parking provisions in accordance with Section 3.3(i) as: the development is likely to have an impact on local parking conditions [at subcl (i)]; the applicant has failed to demonstrate that alternative approaches to the site and building constraints have been fully explored [at subcl(d)]. There is no evidence before the Court that demonstrates that the site constraints are such that no other options are able to pursued for the site that deliver the same accommodation and the required parking.

6. That the applicant is seeking to minimise the cost of development by avoiding the provision of a basement car park at the cost of the amenity of adjoining properties or visitors to the locality seeking on street parking.

7. if the subject development is approved with no provision for onsite parking it will establish a precedent that will be relied on by other similarly zoned sites in proximity to the proposed development.

41. Ms Reid relies on the Courts decision in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 (‘Goldin’). She argues given the extent of the R3 Medium Density Residential Zone and the potential for these sites to seek further development the current development application satisfies the principles of Goldin, namely if there is an application for development which is both objectionable in itself, and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration.

42. In the alternative Mr Pickles submits that:

1. In determining the application, and in considering the provisions of DCP 2013, the aims at cl 1.2 of LEP 2013 should be given weight. In particular aims (c), (e) (g) and (h) (refer paragraph [14]).

2. in contrast to Ms Reid’s submission Mr Pickles argues that the thrust of the Council’s DCP supports the provision of no off street parking in circumstances where the site is well serviced by public transport and located in proximity to services and facilities which make it practical to utilise transport alternatives to motor vehicles. In support of this submission he relies on the following extract of DCP 2013 at Section 3.3:

“There may be circumstances where it may not be physically possible or aesthetically desirable to provide parking (eg the provision of off street parking in the frontage of a heritage item or in areas of significant streetscape value).”

3. Mr Pickles submits that the current application is a circumstance where is it both not physically possible nor aesthetically desirable to provide parking onsite and a variation to the Council’s parking provisions is warranted.

4. He notes that none of the Inter war residential flat buildings in proximity of the site provide any onsite parking.

5. He argues that the existing building is worthy of retention on two grounds: firstly it assists in delivering on object (b) of the Act by facilitating an environmentally sustainable approach to the site by the retention of the existing building, whilst inserting new accommodation at the rear; secondly, as identified in the heritage comments of the Council (refer paragraph [37]), the existing building is making a positive contribution to the streetscape and the setting of the adjoining heritage item, which will be improved by the rejuvenation of the building under this development application.

6. the provision of basement parking would necessitate the demolition of the existing building and on such a narrow site would likely result in a poor streetscape outcome.

7. the controls in DCP 2013 were developed at a time when the provision of the light rail transport corridor was neither confirmed nor under construction and that the controls need to be considered in the context of this change.

8. At Section 2.2: Car Share the DCP notes that ‘Where parking rates are being considered, Council will look more favourably on proposed reductions within close walking distance to strategic bus corridors and area of high public transport provision and where a car share scheme is provided on site.’

9. With the deletion of the driveway crossing the addition of the car share pod will not reduce the available on street parking in Prince Street, but will provide an additional facility for nearby residents.

10. The applicant has demonstrated that car share pods in proximity of the site are viable and well utilised.

11. The parking surveys undertaken by the Applicant demonstrate that the highest usage of on street parking is over night. At maximum the remaining capacity is 10-11 spaces, which is sufficient to meet any demand generated by the development.

43. Mr Pickles submits that the Court has previously considered the provisions of the Randwick DCP in Sheer Property Group Pty Ltd & anor v Randwick City Council [2013] NSWLEC 1168 (‘Sheer Property’). This case involved the conversion of an existing semi-detached dwelling into multi-unit housing. The Commissioner found that the provision of a car share space is in line with the intent of DCP 2013 to deliver sustainable transport measures.

44. Mr Pickles submits that the Court has taken a similar approach in the decisions of: Dimitri Dilles v Randwick Council [2017] NSWLEC 1202 (‘Dimitri Dilles’) and in Turner Architects v City of Botany Bay Council [2016] NSWLEC 1186 (‘Turner Architects’).

45. In the decision of ‘Dimitri Dilles’ Commissioner Smithson found at [125] that ‘On balance, I therefore believe it is a reasonable outcome to accept a car share space and car sharing membership for occupants as an alternative to onsite provision in this instance notwithstanding the resident’s concerns in terms of the demand for parking in the area, which are not disputed.’

46. He notes that in ‘Turner Architects’ Commissioner O’Neill accepts at [38] the evidence of the engineering expert that a car share vehicle can offset required parking provision as follows:

“38. The provision of 58 car parking spaces (exhibit M) results in a reduced shortfall of car parking spaces of 8, based on the minimum requirements for car parking spaces in Table 1 of DCP 2013, when compared to the proposal, which has a shortfall of 13. I accept the applicant’s submission that, on the basis of exhibit J, a car share vehicle replaces up to 10 to 12 private cars. I am satisfied that the provision of an on-site car share scheme car parking space combined with a demonstrated commitment from a car share company to provide a vehicle for that parking space, as required by the applicant’s version of the conditions of consent, is an adequate substitute for the shortfall of 8 car parking spaces for the remaining 9 two bedroom units and is a circumstance that permits a reduction in the car parking provision from the minimum requirement of DCP 2013.”

47. Finally Mr Pickles submits that in addition to the above case law there are site specific factors that warrant the variation to the Council’s parking provisions, namely: the certainty and proximity of the light rail corridor; and the positive streetscape and sustainability benefits that arise from the retention of the existing building.

Findings

48. During the onsite view at the commencement of the hearing I was able to observe that the existing garage was occupied by storage of goods. Further there was no observable indication that the driveway was in current utilisation for vehicle access to the rear of the site for residents to park. There was no sign of vehicle tracks demonstrating vehicles had utilised the existing turfed area to manoeuvre or park. I am satisfied it is unlikely that any of the residents of the existing building utilise onsite parking.

49. I note that DCP 2013 and Section 3.2 (v) states: Where development comprises an extension, modification or change of use to an existing development, Council will generally only require that additional parking be provided to cater for the additional demands arising from increases in floor space or changes in use.

50. I note the agreed evidence of the experts that the current driveway is non-compliant with AS 2890.1-2004. Given the subject application seeks to retain the existing building there is no practical means of increasing the width of the existing driveway access. I am satisfied it would be inappropriate to approve the intensification of the use of the driveway in circumstances where it is non-compliant.

51. On these bases I accept the evidence of Mr Lo, at paragraph [27], that the offsite impact of the proposed development, with the closure of the driveway crossing on Prince Street, will be an increase of two vehicular parking spaces.

52. I accept the evidence of the Council’s heritage expert at paragraph [39], and the benefits she identifies in the retention of the existing building, are relevant to the consideration of the merits of the proposed parking variation. Further I am satisfied that the provision of basement parking (in an alternative development scheme) may be incongruous with the context and setting of the 1930’s heritage building that adjoins the site to the north.

53. I accept the evidence of Mr Lo that given a shortfall of two spaces there is sufficient on street parking to accommodate any additional vehicles. Further I am satisfied that the use of private vehicle parking in proximity to the Alison Road light rail station is unlikely to be attractive for users given the large extent of signposted two hour on street parking (between 8am and 6pm) as identified in the joint report (Ex 3). As a result I am not persuaded that the light rail station is likely to materially impact the current capacity of on street parking in proximity to the subject site.

48. Whilst I note the submission of Ms Reid in relation to the equity of this development ‘absorbing’ this capacity I am satisfied, on the specifics of the case, that it is an appropriate outcome. Those specifics are: the frequent and high quality provision of public transport in proximity to the site; and the streetscape benefits of the retention of the existing building. These are overarching factors that sway the balance of the assessment in favour of the approval of the development.

49. I am also satisfied that the provision of an on-street car share vehicle, and the addition of a new on-street parking space through the deletion of the existing driveway crossing, are a reasonable alternative solution that achieves the objects of the parking provisions in DCP 2013. I am satisfied it is reasonable to the exercise of flexibility in applying the provisions of DCP 2013 afforded by s 4.15(3A)(b) of the Act.

50. I note in Sheer Property Commissioner Fakes makes the following comments which are relevant in the context of the subject site and with which I concur:

“62 While it is clearly desirable for anyone who owns a car to park close to his or her dwelling, planning strategies that encourage higher density living in areas close to the city on public transport routes will inevitably lead to measures to decrease dependence on individual car ownership.”

57. After considering the evidence and submissions, and having regard to the matters to be considered under s 4.15 of the Act I am satisfied the subject development warrants approval.

Conditions of Consent:

58. In the event that the Court approved the development the parties dispute three conditions: firstly the terms of the deferred commencement condition; secondly the duration of the funding provided by the applicant for the car share pod; and finally when evidence of the contract with the car share provider is to be provided to the Council.

59. Following the recent decisions of the Chief Judge in Savellis v Sutherland Shire Council [2018] NSWLEC 100 and Dennes v Port Macquarie-Hastings Council [2018] NSWLEC 95 the Applicant seeks a term for the satisfaction of the deferred commencement condition of 36 months. The Council argues that the requirements of the condition ought to be able to be satisfied in 24 months.

60. Council’s preferred deferred commencement condition reads:

“1. An application shall be made, and an approval must be issued, under the Roads Transport Act 2013, for a car share parking pod adjacent to the property at no. 4 Prince Street, Randwick

2. Evidence of a contractual arrangement that a car share parking car will be provided in the parking pod for a minimum duration of 10 years. The contract is to provide a term that it will not be varied without the written consent of Council.

Evidence required to satisfy the above conditions must be submitted to Council for approval within 24 months of the date of this consent.”

(Ex 4)

61. The Applicant’s preferred deferred commencement condition reads:

“1. An application shall be made, and an approval must be issued, under the Roads Transport Act 2013, for a car share parking pod adjacent to the property at no. 4 Prince Street, Randwick

Evidence required to satisfy the above conditions must be submitted to Council for approval within 36 months of the date of this consent.”

(Ex C)

62. The Applicant proposes the following operational condition to address the funding provision of the car share space:

“The Applicant shall provide evidence to the Council, before occupation certificate, of the guaranteed funding provision of the car share space with car required by condition 1 for a minimum period of five years from the date of the occupation certificate.”

(Ex C)

Findings

63. Given the integral nature of the provision of the car share pod to the development application I am satisfied it is appropriate for the contractual arrangements for its provision to be satisfied prior to the development consent becoming operational. On the basis of the information forming part of the application I am satisfied that the proposed deferred commencement condition is appropriately certain and consistent with s4 16(3) of the Act. On this basis I accept the deferred commencement condition as proposed by the Council at paragraph [60].

64. In relation to the appropriate term for the satisfaction of the deferred commencement condition I am persuaded that it is practical and possible for the condition to be satisfied within the 24 month period from the date of the issue of the development consent. The evidence before the Court includes a letter from GOGET’s Head of Locations and Partnerships confirming their support for the proposed new pod in Prince Street (Ex 3). I am satisfied that this, and the other evidence before the Court, indicates that discussions between the parties have advanced to a point that the finalisation of a contractual arrangement within two years is foreseeable. Further the need for approval for the location and sign marking of the car share space in Prince Street is a standard regulatory process for which two years seems ample.

65. In relation to the distinction between the parties as to the term for which the applicant should guarantee the GOGET space I have no evidence to establish a persuasive reason to depart from the Council’s recommended 10 year period. However I do accept that such a period should commence from the occupation of the development (and thus the commencement of the demand). I have amended the condition accordingly. The deferred commencement condition shall read:

“1. An application shall be made, and an approval must be issued, under the Roads Transport Act 2013, for a car share parking pod adjacent to the property at no. 4 Prince Street, Randwick

2. Evidence of a contractual arrangement that a car share parking car will be provided in the parking pod for a minimum duration of 10 years. The contract is to provide a term that it will not be varied without the written consent of Council. That term shall commence from the date of the issue of an occupation certificate for the development.

Evidence required to satisfy the above conditions must be submitted to Council for approval within 24 months of the date of this consent.”

The Court orders that:

1. The appeal is upheld;

2. Development Application No. DA/252/2017, as amended, for: demolition of the existing outbuilding and garage; alterations and additions to the existing residential flat building and construction of a new two storey residential flat building to the rear of 4 Prince Street, Randwick; is approved subject to the conditions in Annexure A;

3. The exhibits are returned with the exception of Exhibits 1, A and E.

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D M Dickson

Commissioner of the Court

Annexure A

Decision last updated: 22 January 2019