Bartlett v Marrickville Council

[2009] NSWLEC 1166

Land and Environment Court

of New South Wales

CITATION:	Bartlett v Marrickville Council [2009] NSWLEC 1166
PARTIES:	APPLICANT Timothy Bartlett RESPONDENT Marrickville Council
FILE NUMBER(S):	11223 of 2008
CORAM:	Tuor C
KEY ISSUES:	DEVELOPMENT APPLICATION :- carport impact on existing dwelling and streetscape
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Marrickville Local Environmental Plan 2001 Development Control Plan 19 – Parking Strategy Development Control Plan 35 - Urban Housing vol 1
DATES OF HEARING:	31 March 2009
EX TEMPORE JUDGMENT DATE:	31 March 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr J Doyle, barrister instructed by Mr L Rupell, solicitor RESPONDENT Mr G Christmas, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

31 March 2009

11223 of 2008 Bartlett v Marrickville Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Marrickville Council (the council) of a development application under the Environmental Planning and Assessing Act 1979 to demolish an existing garage and construct a carport at 15 David Street, Marrickville (the site).

2 The proceedings were conducted on site as a conciliation conference under s34 of the Land and Environment Court Act 1979. The parties did not reach agreement but consented to my disposing of the proceedings under s 34(4)(b) without a further hearing.

Site and locality

3 The site is located on the northern side of David Street with a frontage of 12.62m and an overall area of 470sqm. The site is developed with a single storey Federation Queen Anne style house with a shed and attached garage at the rear which is accessed from David Street via a 2.134m wide right of carriageway (ROW). The ROW also provides access to 15A David Street, which is at the rear of the site.

4 The surrounding development is predominantly single storey Victorian and Federation houses. There is a residential flat building to the west of the site at 19 David Street.

Planning controls

5 The site is zoned Residential 2(A) under Marrickville Local Environmental Plan 2001 (LEP2001). The carport is permissible with consent.

6 The site is located in the ResA14-David Street Area which is included in the map referred to in cl 55 of LEP 2001. Clause 55 requires the consent authority to have regard to the effect of carrying out of development on the heritage significance of buildings in the area and requires an assessment of matters which includes pitch and form of roof, finishes and materials.

7 Development Control Plan 19 – Parking Strategy (DCP 19) is also relevant. Clause B.1.2 of DCP 19 requires the provision of one car space for a dwelling.

8 Table 7 of s 3(b) of Development Control Plan 35 - Urban Housing vol 1 (DCP 35) also requires one car space per dwelling. DCP 35 provides objectives and controls for the location of off street parking.

Issues and evidence

9 The key issue between the parties is the appropriate location of off street car parking on the site and whether the proposed carport would have an adverse impact on the dwelling and the character of the street.

10 The court heard evidence from Mr T Wakeham for the applicant, the architect for the proposal. Ms V Holtham provided heritage and urban design advice and Mr G Stichwell provided planning advice for the council.

11 Mr and Mrs Webb, the owners of 15A objected to the realignment of the fence along the property boundary and the ROW as this would impact on the access to their property. The applicant has agreed to a condition which would ensure that the width of the carriageway would not be narrowed, which addressed the Webb’s concerns.

12 Mr Wakeham’s evidence is that access to the existing garage is non compliant and relies on either reversing down the ROW or doing numerous manoeuvres to exit in a forward direction. He stated that options to improve the parking arrangement at the rear had been investigated but were not suitable as they would impact on the limited open space available. Mr Wakeham also stated that providing parking at the front of the dwelling would improve the private open space at the rear and increase its area without adversely impacting on the streetscape or on street car parking.

13 Mr Doyle, for the applicant, submits that DCP 19 and DCP 35 require the provision of one car space for a dwelling and Objective O3 of pt 3B of DCP 35 seeks “to provide convenient, safe and accessible vehicle parking”. The current garage arrangement does not meet this objective. The proposal would meet the reasonable needs of the applicant and the requirement of the DCPs for off street parking.

14 Mr Doyle also submits that the site is located in a part of David Street that is not cohesive. While there are no examples of carports forward of the building line, there are hard stand areas and crossovers. Mr Doyle submits that the carport or alternatively, a hard stand area would be consistent with the character of the street.

15 In Ms Holtham’s opinion, David Street is an intact streetscape of some importance and the proposal would impact on the character of the dwelling and the street.

16 Mr Stichwell considered that there were alternatives to provide parking at the rear of the site which had not been adequately explored by the applicant, such as dual use of a hard stand area as open space and for car parking. Further, the proposed crossover would result in the loss of one of the two on-street spaces which currently exist in front of the site.

17 Mr Christmas, for council, submits that DCP 35 provides objectives and criteria which encourage the provision of parking to the rear or side of properties to limit their impact on the street. Mr Christmas submits that the proposal does not meet the criteria in C6 of DCP35 for consideration of a carport forward of the building alignment. In particular, the carport would significantly affect the landscape front garden area, is not in a varied streetscape with carports forward of the building alignment and there is side access available to the property.

18 The key issue in this case is balancing the applicant's needs and DCP 35 and DCP 19 requirements for off street parking against the locational objectives for parking in DCP 35 which seek:

O1 to ensure that the siting of parking structures respect and enhance the character of the street, and

O4 to encourage vehicle parking at the rear of properties…..

19 David Street is an exceptional streetscape with a character of trees and houses from the Victorian and Federation period. The site’s location at the bend of the street does not preclude it from forming part of the streetscape. To the contrary, its location at the bend opens up views of the adjoining house at 13 David Street. The residential flat building is uncharacteristic of the street but is an isolated element in an otherwise relatively intact streetscape.

20 The houses in the street are from periods where car ownership was not the norm. Nonetheless, a number of the houses have driveways on the side leading to garages at the rear of the property. These driveways are not dissimilar to the width of the ROW on the site and, prior to subdivision, the ROW may have served as a driveway for a garage at the rear of the site.

21 From the site visit it appears that the driveways to the rear of some houses in the street may not be used and that cars are parked in the driveway in front of and to the side of the houses. There are no carports in front of the building alignment and only one hard stand area which is not to the side of the house. Within this context, carports and hard stands in front of houses are uncharacteristic and do not meet the objectives or criteria in pt 3B of DCP 35 for the location of car parking.

22 I accept that the carport at the front of the dwelling would provide convenient, safe and accessible vehicle parking, particularly when compared with the current arrangement with the garage at the rear. I note that DCP 19 and DCP 35 require one car space per dwelling. However, given that the existing housing stock in the area dates from the Victorian and Federation period, I do not consider that this can be interpreted as requiring existing houses to provide parking, nor can this be given greater weight than the other provisions in DCP 35, which clearly encourage the provision of parking to the rear or side of houses.

23 The proposal would result in the loss of one publicly available on street space to provide one private off street space. While no evidence as to the availability of on street parking in the street was provided, this arrangement does not meet the requirements of C16 of DCP 35 that:

vehicular crossings shall be cited so as not to lead to any reduction in on street kerbside parking.

24 Further, C18 of DCP 35 states that the number of vehicle crossings is limited to one per dwelling. The ROW is shared with 15A but it does also provide a vehicle crossing for the site.

25 The ROW precludes the option of providing parking at the side of the house. It is not ideal to reverse down a long narrow driveway and the width of the ROW does not comply with council's current requirements. However, this is the existing access arrangement for 15A and 15 and the driveway width does not appear to be different to the width of other driveways in the street. I acknowledge that the access to the existing garage and its impact on the open space is less than desirable but I do not accept that this justifies a carport at the front of the dwelling or that the option of providing a shared hard stand open space area at the rear of the site has been adequately explored.

26 For these reasons, the application must fail.

Orders

27 The orders of the court are:

1. The appeal is dismissed.

2. The development application to demolish the existing garage and construct a carport at 15 David Street, Marrickville is refused.

3. The exhibits are returned.

___________________

Annelise Tuor
Commissioner of the Court