CAHCJH Pty Ltd v Mosman Municipal Council

[2024] NSWLEC 1517

Land and Environment Court

New South Wales

Medium Neutral Citation:

CAHCJH Pty Ltd v Mosman Municipal Council [2024] NSWLEC 1517

Hearing dates:

22 and 23 July 2024

Date of orders:

27 August 2024

Decision date:

27 August 2024

Jurisdiction:

Class 1

Before:

Thorpe AC

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development application No. 8.2023.276.1 for the construction of a car space forward of the dwelling at 172 Raglan Street, Mosman, is refused.

(3) The exhibits, other than exhibits A, B, C and 1, are to be returned.

Catchwords:

RESIDENTIAL DEVELOPMENT APPEAL – car parking – streetscape implications

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979, s 34, 34AA, 39

Mosman Local Environmental Plan 2012

Cases Cited:

Walker v Mosman Municipal Council [2024] NSWLEC 1341

Segal v Waverley Council [2004] NSWLEC 363

Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75

Texts Cited:

Mosman Residential Development Control Plan 2012

AS/NZS 2890.1:2004 Parking facilities, Off-street car parking

Category:

Principal judgment

Parties:

CAHCJH Pty Ltd ACN 655 384 240 (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
G Shapiro (Solicitor) (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2024/154744

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (Court Act). CAHCJH Pty Ltd (the Applicant) appeals against the refusal by Mosman Municipal Council (the Council) of development application 8.2023.276.1 (DA) for the construction of a car space forward of the dwelling at 172 Raglan Street Mosman, legally described as Lot 1 in DP445266 (site).

2. Council raised contentions relating to:

1. Streetscape and desired character;

2. Non-street parking; and,

3. Public interest.

3. For the reasons given below, and in consideration of Council’s contentions, I have concluded that the DA should be refused.

Site and setting

4. The site is located on the north-western side of Raglan Street about 200m from Military Road. The site has an area of 257.1m² with a frontage of 6.425m to Raglan Street and a fall of approximately 1.9m from the street frontage to the rear.

5. The site presently contains a semi-detached dwelling. The site benefits from Complying Development Certificate 12.2022.133.1 for alterations and additions (CDC). Most of the works approved under the CDC have been completed, including landscaping at the front of the site, and the property is now tenanted.

6. Surrounding development includes substantial dwelling houses, semi-detached dwellings and residential flat buildings. Many properties within the visual catchment include car parking forward of the building line, others do not.

Proposal

7. The applicant’s request to amend the application was approved under s 39(2) of the Court Act. The plans before the Court now propose to construct a parking area between the street frontage and the front of the dwelling, topped with grass cells or turf grid pavers. Storage for two of the three bins would be installed near the front door, along with drainage, as this area would be approximately 600mm below much of the frontage. Much of the existing picket fence would be removed, and the recently planted lilly pillies would be relocated. The proposal includes a driveway crossover.

8. The proposal relies on works approved but not completed under the CDC, including removal of the bay window to the front bedroom to increase the distance from the front of the building to the street to 5.7m. Instead of relocating the north-eastern column as approved under the CDC, the proposal is to achieve the parking envelope required under AS/NZS 2890.1:2004 Parking facilities - Off-street car parking by shaving 55mm from the south-western column. The beam between the two columns would also be shaved to achieve the required head room.

9. Planning controls

10. The site is zoned R3 Medium Density Residential under Mosman Local Environmental Plan 2012 (MLEP). The proposal is permissible with consent.

11. Clause 6.6 of MLEP deals with landscaped areas and applies to land in Zone R3. Clause 6.6(3)(i) applies to the site and sets a minimum landscaped area of 25%.

12. The site is not a heritage item nor within a heritage conservation area.

13. Mosman Residential Development Control Plan 2012 (MRDCP) applies to the site. Relevant provisions (with objectives prefixed “O” and planning controls prefixed “P”) include:

“5.1 Streetscape and building design

…

O4. To have the front setback contribute to the streetscape in terms of a landscaped setting, with minimal hard surface areas.

…

P16. Provide sufficient area within the front setback which incorporates gardens and space for appropriate trees to balance the built form.

P17. Hard surfaces should be minimised within the front setback, and sufficient soft landscaping provided to overcome the pressures within the front setback of car parking and driveways.

…

5.10 Transport, access and parking

...

O1. To have the width of street vehicular crossings and driveways limited (depending on the site frontage) to minimise visual impact, to maximise on street parking space and allow opportunities for street planting.

…

P3. Preference will be given to parking solutions which lead to a net increase in parking by having regard to the location and dimensions of vehicular crossings.”

14. Planning Control P5 of Part 5.10 provides a table of car-parking rates. For semi-detached dwellings, the rate is “1 space per dwelling, being no more than 18sqm.”

15. The site is located within the Sirius Slopes Townscape as defined by Part 7.4(20) of MRDCP. The description of the area notes “a diversity of buildings” and “medium to light tree cover”. The planning controls include:

“(f) Use selected trees to give a structure and reference point between the dwelling house and garden, and garden and landscape. …

(g) Traditional gardens here are with enclosed grass space defined by shrub plantings forming formal and informal hedges.”

Proceedings

16. The appeal was subject to conciliation under s 34AA of the Court Act, held on 22 July 2024. The parties were unable to reach agreement and the matter proceeded forthwith to a hearing on 22 and 23 July 2024. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) of the Court Act.

17. A site view was conducted at the commencement of the hearing, including the visual catchment of the site as agreed by the parties. The Court heard from three affected residents. The first, on behalf of the residents of a neighbouring apartment building, emphasised that the loss of this on-street parking space would be significant because their building has no off-street parking and no capacity to introduce any, and no on-street parking because of the bus stop. The second spoke about the public interest in shared parking and Council’s longstanding position on the issue, characterising the proposal as lacking in community spirit for its attempt to privatise public parking space. Drawing on architectural expertise, the second speaker also raised numerous concerns about the loss of hedges, drainage and amenity for residents at the site, arguing that the proposal presented a significant loss for the community and only a minimal gain for the applicant. The third speaker raised concerns regarding road safety, noting the proximity of the church and school, and a recent example of a near miss she had seen. The Court received into evidence written submissions from these and four other neighbours, who raised similar concerns.

18. Council relied on the expert evidence of Rebecca Englund (Planning). The applicant relied on the expert evidence of Peter Moody (Planning) and Matthew McCarthy (Traffic Engineering). Ms Englund and Mr Moody prepared a joint expert report (Ex 3) and Mr McCarthy prepared two letters of advice (Ex D and E). The experts were present for the site view. Ms Englund and Mr Moody answered questions during the hearing.

Streetscape

19. Council contends that the DA should be refused as the proposal would result in unacceptable impacts upon the character of the streetscape. The proposed development would permanently reduce the possibility for the frontage to contribute to the streetscape, the importance of which is noted repeatedly in MRDCP. The proposal involves unsympathetic changes to the dwelling, including shaving the column which has decorative elements, the treatment of which has not been resolved. As indicated above the CDC already provides for the removal of the bay window.

20. Mr Moody says that the proposed landscaping complies with cl 6.6(3)(i) of MLEP and controls P16 and P17 of Part 5.1 of MRDCP. Council’s landscape designer raised no objection to the (original, full hardstand) proposal. According to Mr Moody, the character of the locality includes numerous car parking structures forward of the building line. The impact of the grass cell structure in this proposal would be less than a carport or garage. In Mr Moody’s view, the proposed landscaping would make a positive contribution to the streetscape. Mr Moody emphasised the new street tree to be planted at the request of the council, at a location to be determined.

21. According to Ms Englund, the proposed development is not compliant with controls P16 and P17 of Part 5.1 because insufficient space is left for trees and other landscaping. In Ms Englund’s view, the streetscape impact is increased due to the raised level of the hardstand such that a parked car would be visually dominant. While accepting that the numerical requirement in cl 6.6(3)(i) of MLEP is satisfied, Ms Englund notes that the calculation relies on the impractical replacement of the current pebbled pathway along the north-eastern side of the property with turf. With respect to the street tree to be planted as a condition of consent, Ms Englund is of the view that this carries little weight since Council could plant a new street tree at its own initiative.

22. I accept and concur with Ms Englund’s expert planning evidence. Ms Englund is correct in her finding that the proposed development would have adverse impacts on the streetscape, character and amenity in the locality. I agree that a parked car would be visually dominant. The parking space is proposed to occupy the entire length of the front setback, including extending under the front verandah to sit tightly against the dwelling. The raised level means that the window and decorative treatment of the front façade would be largely obscured. The frontage has recently been landscaped with grass and hedges, consistent with Pt 7(20)(g) of MRDCP. While I accept that the proposed development would have less visual impact than a garage or a carport, the proposal would replace planting with hardstand, likely in the form of a grass cell structure made from plastic. It would also replace the grassed verge with a crossover. I agree with Council that these failings are significant, and point to the DA’s lack of consistency with MRDCP, to the unacceptable impacts of the development, and to the unsuitability of the site for the proposed development.

Loss of on-street parking

23. Council says that the provision of one off-street private parking space at the cost of one on-street public parking space is inconsistent with control P3 of Part 5.10 of MRDCP, which gives preference to parking solutions which lead to a net increase in parking. Council notes the significant concerns raised by neighbours about the impact of the proposal on parking in the locality. Council says that the issues with access to the parking space raised by Ms Englund and neighbours point to the unsuitability of the site for development.

24. The applicant submits that the proposed development would have a neutral effect on total parking spaces. The applicant further submits that the proposed development would bring the site into compliance with control P5 of Part 5.10 of MRDCP which requires the provision of one parking space per semi-detached dwelling.

25. Mr Moody believes that the proposed development meets the requirements for parking spaces under AS2890.1, would have a neutral impact on parking in the locality, and would bring the site into compliance with control P5 of Part 5.10. Mr Moody notes that Mr McCarthy’s advice is the same.

26. In Ms Englund’s opinion, the replacement of a public, on-street parking space with one that is available only to one dwelling is not neutral. Ms Englund notes that control P5 of Part 5.10 applies to developments for which development consent is required, not to existing developments for which consent has already been granted or is not required. Ms Englund accepts that the proposed parking space meets the dimensions of AS2890.1, but notes that it does not include the additional area typically provided to either side to enable access. People would have to walk through the gardens on either side to get into the vehicle, and would have to leave the property and walk on the footpath to get from the eastern side of the car to the dwelling. Access to the side and rear of the dwelling would be reduced.

27. I accept and concur with Ms Englund’s expert planning evidence. The loss of an on-street parking space would reduce amenity in the locality and would not achieve the net increase described in control P3 of Part 5.10 of MRDCP. While the scale of the potential loss is not large, parking in the area is constrained. I agree that control P5 does not apply to developments for which consent is not required or has already been granted. The loss of on-street parking is a further failing associated with the proposal.

Public interest

28. In addition to the public interest in the streetscape, amenity and parking impacts of the proposed development, Council contends that approval of the DA would establish an undesirable precedent. Council made submissions regarding recent development applications for car parking in the frontage that are in close proximity to the site. The most recent consent for a parking structure within the visual catchment of the site was granted in 1968.

29. Justice Lloyd set out principles for the assessment of potential planning precedents in Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 (“Goldin”) at [28]:

“As I understand the decision, if the Court is entertained with an application for a proposed 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.”

30. The initial test under Goldin goes to whether the proposal is “objectionable in itself”. For the reasons outlined above, I have found that the proposed development would have adverse impacts on the streetscape, character, and amenity in the locality. The first test is satisfied. The second test concerns “the probability that there will be further applications of a like kind”. I find that this test is also satisfied, given the recent applications for development consent within the locality. I note that Council has been consistent in its opposition to parking spaces forward of the dwelling over many years, and I note that the applicant has highlighted examples of frontages containing parking within the locality to justify this proposal.

31. While it is a secondary issue, and noting that each development proposal is considered on its own merits, in this instance I accept that there is potential to create an undesirable planning precedent.

32. The applicant submits that the principle of comity outlined in Segalv Waverley Council [2004] NSWLEC 363 requires me to consider the decision in Walker v Mosman Municipal Council [2024] NSWLEC 1341 (“Walker”), in which the Court granted consent for a parking space within the frontage of a dwelling on Spit Road, Mosman. Council submits that the development proposal in Walker differed because: 1) there was a net increase in parking, 2) there was a significant increase in visible landscaping and, 3) the proposal involved design features which reduced safety issues. I accept those distinctions.

Conclusion

33. In accordance with the reasoning outlined above, I find that the proposal is inconsistent with controls P16 and P17 of Part 5.1 and P3 of Part 5.10 of MRDCP. I find that the proposed development would have a detrimental impact on the streetscape and amenity in the locality. The potential private benefits offered do not outweigh these significant negative impacts and in that sense the proposal is not in the public interest.

Orders

34. The Court orders:

1. The appeal is dismissed.

2. Development application No. 8.2023.276.1 for the construction of a car space forward of the dwelling (the Proposed Development) at 172 Raglan Street, Mosman, is refused.

3. The exhibits, other than exhibits A, B, C and 1, are to be returned.

A Thorpe

Acting Commissioner of the Court

**********

Decision last updated: 27 August 2024