Chidiac v Canterbury City Council

Case •

[2012] NSWLEC 1335

•

06 December 2012

Land and Environment Court


New South Wales

Medium Neutral Citation: Chidiac v Canterbury City Council [2012] NSWLEC 1335
Hearing dates:3 December 2012
Decision date: 06 December 2012
Jurisdiction:Class 1
Before: O'Neill C
Decision:

1. The appeal is upheld.

2. The application to modify Development Consent 205/2011 is approved, subject to the conditions of consent attached in Annexure A.

3. The exhibits, except for exhibit 1, are returned.

Catchwords: MODIFICATION APPLICATION: delete visitor parking, residential flat building, depth of retail tenancy.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Cases Cited: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75
Category:Principal judgment
Parties: Mr J. Chidiac (Applicant)
Canterbury City Council (Respondent)
Representation: Mr A. Pickles Barrister (Applicant)
Mr A. Seton Solicitor (Respondent)
Solicitors
Maclarens Lawyers (Applicant)
Marsdens Law Group (Respondent)
File Number(s):10962 of 2012

Judgment

  1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97AA of the Environmental Planning and Assessment Act1979 against the refusal by Canterbury City Council (the Council) to modify Development Consent 205/2011 (approved mixed commercial/residential development) by deleting the lower level of basement parking; reducing the depth of commercial tenancy 1; modifying the egress arrangements and relocating garbage and storage areas (the proposal) at 60 Earlwood Avenue, Earlwood (the site).

Issues

  1. Council's contentions in the matter can be summarised as:

  • The proposal results in insufficient on-site car parking;
  • The proposal reduces the depth of commercial tenancy 1 to 8.39 m and a minimum depth of 10 m is required to ensure that commercial tenancies remain viable and adaptive for varying commercial uses; and
  • The proposal is an overdevelopment of the site.

  1. The Council's contention regarding the loss of domestic storage areas in the basement was resolved by amendments made to the basement level layout, tendered as Exhibit C.

The site and its context

  1. The site is located on the southern corner of Earlwood Avenue and Homer Lane. The site is triangular, with a frontage to Earlwood Avenue of 18.29 metres, a secondary frontage to Homer Lane of 41.805 metres and an area of 439 square metres.

  1. There is a public car park running between Earlwood Avenue and Lewins Street, on the western side of Earlwood Avenue, which provides 62 car spaces and has a 2 hour time limit during business hours. The public car park is available for unlimited parking outside of business hours.

Background

  1. Development consent 205/2011, approved 23 April 2012, is for a five storey commercial/residential development, consisting of two commercial tenancies and 13 two bedroom residential apartments. There are two basement parking levels. The consent includes a s 94 contribution to be paid in lieu of providing commercial car parking.

  1. The Ground Floor Level consists of two commercial tenancies fronting Earlwood Avenue, either side of the entry to the residential foyer. There are 8 parking spaces and garbage storage on the ground floor, accessed directly from Homer Lane.

  1. Basement Level 1 includes 6 parking spaces accessed via a ramp from Earlwood Avenue, a domestic storage area and a car lift for access to Basement Level 2. Basement Level 2 includes a turntable to provide access to 7 parking spaces. Condition 11 of the consent requires three of the Basement Level 1 parking spaces to be allocated for visitor parking and consequently the Basement Level 2 car spaces would be allocated to residential car parking.

  1. Condition 10 of the consent requires 20 on-site car parking spaces to be provided, comprising 13 residential spaces, 3 resident common spaces, 3 visitor parking spaces and 1 car wash bay.

The proposal

  1. The proposal is to delete Basement Level 2. The proposal for the Ground Floor Level includes 7 car spaces accessed from Homer Lane and garbage storage.

  1. The proposal for Basement Level 1 includes 9 car spaces (of which 3 pairs are in a tandem arrangement), 5 motorbike parking spaces, bicycle storage space and a domestic storage area. The proposal provides one car space each for 10 residential apartments and two car spaces, in a tandem arrangement, for three residential apartments. The proposal does not include visitor car spaces.

  1. The proposal retains the two commercial tenancies fronting Earlwood Avenue, either side of the residential entry, however commercial tenancy 1 has been reduced in depth to 8.39 metres. The area of commercial tenancy 1 remains the same, as the fire stair on the northern side of the tenancy has been deleted and as a result, the tenancy has a frontage to both Earlwood Avenue and Homer Lane.

Planning Framework

  1. The site is zoned General Business 3(a1) pursuant to Canterbury Planning Scheme Ordinance (CPSO). The proposal is permissible with consent.

  1. The site is zoned B2 Local Centre, pursuant to the draft Canterbury Local Environment Plan 2012 (draft LEP). The proposal is permissible with consent under the provisions of the draft LEP. The draft LEP has been adopted by Council and sent to the Minister for Planning and Infrastructure to be made.

  1. Development Control Plan Number 20 Car Parking (DCP 20) applies to all land within the Canterbury Local Government Area. The relevant aims and objectives of DCP 20 at clause 1.5 include the following:

  • To ensure that development provides adequate off-street parking, servicing areas and bicycle facilities for both occupants and visitors;
  • To ensure that an appropriate level of parking is provided on-site to support various land use activities and to minimise overflow of parking onto surrounding streets;
  • To ensure the provision of adequate visitor parking facilities for supporting business, retail, residential and missed-use development.

  1. The guideline rates for parking spaces, at table 3(a) of DCP 20 require the following car spaces to be provided for the residential component of the approved development:

  • For two bedroom units, 1.2 spaces per unit (total 16 spaces)
  • For visitor parking, 1 space per 5 dwellings (total 3 spaces)

  1. Council will only consider a variation to the guideline rates for parking in DCP 20 if the proposed changes produce a better planning outcome, at clause 3.4.

  1. The following relevant matters can be taken into account when considering a departure from the guideline rates, at clause 3.4.2 of DCP 20:

  • Type and scale of the development and its potential impacts on local traffic and parking conditions;
  • Surveys of parking provision in comparable recent developments;
  • Existing parking facilities already provided prior to further development;
  • Site and building constraints;
  • Availability and proximity to public transport;
  • Socio-economic status (including household size, occupancy rates, car ownership rates, etc) or anticipated patrons and occupants.

  1. The Town Centres City of Canterbury Development Control Plan No 54 (DCP 54) applies to the Earlwood town centre, which includes the site.

  1. The on-site parking provisions outlined in DCP 20 apply to developments in the town centres, at clause 3.1.7.1 of DCP 54. This clause states that a review of town centre parking provisions is to be undertaken in the future to see if the controls within DCP 20 can be modified in the light of the greater accessibility that town centre locations often provide.

  1. The objectives for the on-site parking provisions are to provide adequate parking for town centre uses; to ensure that visitor (customer) parking is publicly accessible to users and to facilitate bicycle usage.

  1. DCP 54 includes the following relevant statement regarding the depth of ground floor commercial tenancies, at clause 3.2.3:

  • In general, ground floor level retail and upper level commercial should have a minimum depth of 10 m and a maximum depth of 24 m.

  1. The draft Canterbury Development Control Plan 2012 (draft DCP) has been adopted by Council and will come into force when the draft LEP is gazetted.

  1. The objectives for parking and vehicle access at Part 6.8 of the draft DCP include:

  • Adequate car, bicycle and service vehicle facilities for the building users and visitors, depending on the building type and proximity to public transport;
  • Casual parking on streets is available in centres to support local business;
  • Overflow parking and other traffic impacts are minimised in residential streets and neighbourhoods.

  1. The draft DCP requires, for shop top housing in a B2 zone, 1 parking space per dwelling and 0.2 of a visitor space per dwelling, which results in a requirement for 13 residential parking spaces and 3 visitor parking spaces and any development containing 10 dwellings or more is to provide at least one car wash bay. The same relevant matters as clause 3.4.2 of DCP 20 can be taken into account when considering a departure from the guideline rates, at clause 6.8.3 of the draft DCP.

Public submissions

  1. Three objectors provided evidence on site. Their objections to the proposal can be summarised as:

  • The proposal will create a precedent for other mixed use developments in the Earlwood town centre to provide less parking than is required by the controls;
  • The proposal does not provide any visitor parking which will further increase the congestion in the Earlwood town centre area.

Expert evidence

  1. Mr Robert Varga (traffic) and Mr Bernard Sutton (planning) provided expert evidence on behalf of the Council. Mr Graham Pindar (traffic) and Mr Anthony Betros (planning) provided expert evidence on behalf of the applicant.

Parking

  1. The traffic experts agree on the following:

  • That the proposal provides sufficient parking to meet the requirements of the residents;
  • That peak visitor parking demand is during the afternoons, evenings and weekends;
  • That the town centre public parking is under significant pressure during business hours;
  • That the public carpark on the western side of Earlwood Avenue is zoned special use pursuant to CPSO and SP2 (car park) pursuant to the draft LEP.

  1. Mr Varga says that it is not certain that the public car park on the western side of Earlwood Avenue will continue to be available as a public carpark in perpetuity. If he could be certain that the public car park will continue to be available for visitor parking, he is satisfied that the proposal to delete the visitor parking is acceptable.

  1. Mr Pindar says that the study undertaken by R.O.A.R. Data Pty Ltd (exhibit 6) demonstrates that there is a number of vacant public car parking spaces within 100 m of the site during business hours and that the public car park provides unlimited public parking outside of business hours and this existing resource should be able to be used for visitor parking. He says that 3 additional cars in the Earlwood town centre will cause a negligible if not imperceptible impact.

  1. The experts disagree on the provision of a car wash bay. According to Mr Varga, a car wash bay should be provided and it could be shared with one of the three visitor parking spaces required. According to Mr Pindar, a car wash bay is not necessary as there are numerous commercial car washes in the locality.

Depth of commercial tenancy 1

  1. Following the amendments made to the plans (exhibit C), the only remaining issue between the planning experts is the 8.39 m depth of commercial tenancy 1.

  1. Mr Sutton says that the depth of the commercial tenancy is insufficient for the commercial tenancy to be viable and adaptive for various commercial uses and Mr Betros says that the commercial tenancy has the same area of 44.15 square metres, when compared to the approved development and because of the deletion of an exit stair adjacent to Homer Lane, now has a frontage to both Earlwood Avenue and Homer Lane. According to Mr Betros, commercial tenancy 1 is capable of sustaining a retail shop.

Findings

  1. One of Council's contentions in the matter is that the proposal is an overdevelopment of the site. It follows, however, that as the Council granted the existing development consent, their assessment was that the development is appropriate in terms of its size and scale.

  1. As the traffic experts agree that the proposal is acceptable in terms of the provision of residential car spaces, the issues before the Court are:

  • Whether the three visitor parking spaces can be accommodated elsewhere and if so, Basement Level 2 can be deleted; and
  • whether commercial tenancy 1 is capable of sustaining a retail shop.

Visitor parking

  1. I accept Mr Varga's evidence that the proposal to delete the visitor parking is acceptable, on the basis that the three visitor parking spaces can be provided in the public car park on the western side of Earlwood Avenue, as long as the public car park remains available. I am satisfied that the public car park will continue to be available for visitor parking in the future, as it is zoned SP2 (car park) pursuant to the provisions of the draft LEP.

  1. I am satisfied that the proposal to delete Basement Level 2 produces a better planning outcome for the development, because the residential car spaces provided by the proposal are more easily accessed on the Ground Floor Level and Basement Level 1 than those provided on Basement Level 2 in the approved development, as Basement Level 2 requires a car lift and a turn table for access, due to the triangular shape of the site. The proposal represents a better outcome for the future residents, as it provides convenient access to all residential parking spaces.

  1. I accept Mr Pindar's evidence that there are commercial car washes available in the vicinity of the site and that a car wash bay on-site is not essential. While the provision of a car wash bay for the use of the residents is desirable, when weighed against the inconvenience of the access to Basement Level 2, I am satisfied that it can be deleted.

Depth of commercial tenancy 1

  1. I agree with Mr Pickles submission that the statement at clause 3.2.3 of DCP 54, 'In general, ground floor level retail and upper level commercial should have a minimum depth of 10m', is included as a statement of intent, denoted by the words, 'in general'.

  1. I note that the objectives and controls in clause 3.2.3 of DCP 54 are for the building depths and orientation of residential apartments and the statements included under the heading, 'Retail and Commercial' are not specific controls, but indicative guides, without relevant objectives.

  1. I accept Mr Betros' evidence that as commercial tenancy 1 has the same floor area of 44.15 square metres as the approved development and as is a suitable size and proportion with a frontage to both Earlwood Avenue and Homer Lane, it is capable of sustaining a retail shop.

Precedent

  1. I accept that precedent can be a valid planning consideration ( Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75) however, in this case, the unusual triangular configuration of the site and its location opposite a public car park are circumstances that are specific to this site and are not readily transferable to other sites in the area.

Conclusion

  1. I am satisfied that the proposal is an appropriate response to the constraints and opportunities of the site and represents a better planning outcome for the development and therefore the Modification Application can be granted approval.

Orders

  1. The orders of the Court are:

1.   The appeal is upheld.

2.   The application to modify Development Consent No. 205/2011 is approved, subject to the conditions of consent in Annexure A.

3.   The exhibits, other than exhibit 1, are returned.

____________

Susan O'Neill

Commissioner of the Court

ANNEXURE A

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Decision last updated: 06 December 2012

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