Chrbile Nehme Pty Ltd v Canterbury Bankstown Council

[2018] NSWLEC 1031

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chrbile Nehme Pty Ltd v Canterbury Bankstown Council [2018] NSWLEC 1031

Hearing dates:

12 October 2017

Date of orders:

31 January 2018

Decision date:

31 January 2018

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders:

 (1) The appeal is dismissed.
(2) Development application DA69/2017 for the demolition of existing structures and the construction of a dual occupancy development with associated Torrens Title subdivision into two lots is determined by refusal.
(3) The exhibits are returned, with the exception of Exhibits 1and B.

Catchwords:

Development Application: dual occupancy; minimum frontage width; irregular configuration; visually prominent tree; parking access and safety.

Legislation Cited:

Canterbury Local Environment Plan 2012
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Texts Cited:

Canterbury Development Control Plan 2012

Category:

Principal judgment

Parties:

Chrbile Nehme (Applicant)
Canterbury Bankstown Council (Respondent)

Representation:

J. Smith (Applicant)
P. Jackson (Respondent)

 

Solicitors:

  Fortis Law Group
Pikes & Verekers Lawyers

File Number(s):

2017/171658

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Chrbile Nehme (the Applicant) has appealed a decision by Canterbury Bankstown Council (the Respondent) to refuse his development application (DA69/2017), lodged with the Respondent on 2 March 2017, for the demolition of existing structures and the construction of a dual occupancy development together with an associated Torrens Title subdivision into two lots of the property at 36 Fuller Avenue, Earlwood (the Subject Site).

2. The appeal was filed on 2 June 2017 and comes to the Court pursuant to section s97(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act).

3. The Subject Site is located on the southern side of Fuller Avenue near its terminus adjacent to a Sydney Water canal. The Subject Site is formally identified as Lot B in DP 404374.

4. As a consequence of its location at the end of Fuller Avenue, its proximity to the Sydney Water canal, and the presence of an access handle to the adjoining property at 38 and 38A Fuller Avenue, the Subject Site has a narrow street frontage of 5.4m, and is of an irregular configuration.

5. The Subject Site includes within its front setback a large and visually prominent tree. While the tree was identified within correspondence from Council as belonging to the genus Pinus, this was not confirmed by an arborist or botanist during the hearing.

6. An inspection of the Subject Site was undertaken at the commencement of the proceedings. No objectors sought to make submissions in relation to the appeal. During the inspection the identification of the visually prominent tree as belonging to the genus Pinus was questioned by the Parties, and it was suggested by the Respondent that it may have been an Australian Red Cedar. However, in the absence of evidence from an expert arborist or botanist the tree’s genus and species was unable to be confirmed during the hearing.

7. The appeal was subject to mandatory conciliation under s34AA of the Land and Environment Court Act 1979 (LEC Act), which did not result in the matters in contention being resolved. Consequently, the conciliation was terminated and a hearing held forthwith to address the contentions between the Parties.

8. At the commencement of the hearing, the Applicant sought, and was granted, leave to rely on amended plans that were tendered as evidence as part of a joint report of planning experts.

Statutory considerations

Environmental Planning and Assessment Act 1979

9. The Environmental Planning and Assessment Act 1979 (EP&A Act) Section 79C(1) requires that in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.”.

10. Section 79C(3A) Development Control Plans further provides that:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

Canterbury Local Environment Plan 29012

11. The Subject Site is subject to the provisions of the Canterbury Local Environment Plan 2012 (CLEP 2012) in force at the time of the Applicant’s lodgement of DA69/2017.

12. CLEP 2012 requires that a consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

13. Under this plan, the Subject Site is zoned R2 Low Density Residential. The objectives of this zone under CLEP 2012 are:

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

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

14. A dual occupancy development such as that proposed by the Applicant is a permissible use in this zone.

15. Part 4 of CLEP 2012 provides principal development standards for developments on land to which CLEP 2012 applies.

16. Clause 4.1 sets out objectives and standards with respect to minimum subdivision lot size. The objectives of this clause are:

(a) to ensure that subdivision reflects and reinforces the predominant subdivision pattern of the area,

(b) to minimise any likely impact of subdivision and development on the amenity of neighbouring properties,

(c) to ensure that lot sizes allow development to be sited to protect natural or cultural features, including heritage items, and retain special features such as trees and views.

17. Clause 4.1A provides standards for minimum lot sizes for dual occupancies and dwelling houses in certain residential zones, including for land zoned R2, and includes a requirement that:

Development consent must not be granted to development for the purpose of a dual occupancy on land to which this clause applies unless the area of the lot is at least 600 square metres.

18. The Subject Site has an area of 879m2 and so complies with this standard.

19. Clause 4.1B provides standards for minimum lot sizes for dual occupancies, and includes a requirement that:

Development consent may be granted to the subdivision of land under this clause only if:

(a) the lot size of each resulting lot will be at least 300 square metres, and

(b) there will be one dwelling on each resulting lot.

20. The proposed lots that would result from the proposed subdivision of the Subject Site would both exceed 400m2 in area, and each resultant lot would have one dwelling, and so the proposed development complies with this standard.

21. Clause 4.4 provides standards for the floor space ratio (FSR) applicable to development in certain residential zones, including:

(2B) Despite subclause (2), the floor space ratio for a dual occupancy on land in the following zones must not exceed 0.5:1:

(a) Zone R2 Low Density Residential,

22. The Parties agreed during the hearing that the FSR of the proposed development, as reflected in the amended plans, was 0.49:1, and that, as a consequence, the development complied with the FSR standard applicable under cl.4.4.

23. Clause 5.9 of CLEP 2012 addresses the preservation of trees and vegetation on lands to which CLEP 2012 applies. The clause states that:

(1) The objective of this clause is to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation.

(2) This clause applies to species or kinds of trees or other vegetation that are prescribed for the purposes of this clause by a development control plan made by the Council.

Note. A development control plan may prescribe the trees or other vegetation to which this clause applies by reference to species, size, location or other manner.

(3) A person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by:

(a) development consent, or

(b) a permit granted by the Council.

Canterbury Development Control Plan 2012

24. The provisions of Canterbury Development Control Plan 2012 (CDCP 2012), as it was at the time that development application DA69/2017 was lodged, also apply to the Subject Site.

25. The purpose of CDCP 2012 is to supplement the provisions of CLEP 2012 and it provides more detailed objectives and controls to guide the form of development across the former Canterbury Local Government Area (LGA).

26. Part B of CDCP 2012 provides general controls applicable to development on the Subject Site. Section B1 provides controls in relation to transport and parking, section B2 in relation to landscaping, and section B3 in relation to tree preservation.

27. The objectives of Section B1 (Transport and Parking) are to:

provide adequate car, bicycle and service vehicle facilities for the building users and visitors, depending on building type and proximity to public transport.

ensure casual parking on streets is available in centres to support local business.

minimise overflow parking and other traffic impacts in residential streets and neighbourhoods.

ensure servicing by larger vehicles occurs off-street in such a way that reduces impacts on the pedestrian environment.

ensure vehicle facilities are compliant, functional and safe.

encourage reduced car dependency through encouraging alternative means of transport such as cycling, walking and public transport.

ensure vehicle traffic is managed and roads do not inhibit the performance of business centres, presenting barriers to pedestrian movement, or segregating areas.

minimise the visual impact of parking structures on the appearance of streetscapes.

28. The proposed development is a dual occupancy with 4 bedrooms in each of the proposed dwellings, and under the provisions of section B1, is required to provide 2 car parking spaces per dwelling. The proposed development is compliant with this requirement.

29. The objectives of Section B2 Landscaping are to:

ensure attractive settings for development, streetscapes and public domain.

encourage retention and planting of large and medium size trees, and the healthy growth of trees in urban areas.

contribute to the quality and amenity of communal open space on rooftops, podiums and courtyards.

assist with the management of the water table and water quality.

ensure that the principles of Ecologically Sustainable Development (ESD) and the protection of biodiversity and ecological processes are incorporated into landscape design and maintenance.

30. Under the provisions of section B2, the proposed development is subject to the controls in section B2.3.3 concerning trees and canopy coverage. Of relevance to the application in this appeal are provisions that:

1. front and rear setbacks must have at least one (1) major canopy tree for every 12m of front and rear boundary width (control C6), and

2. applicants may be required to replace any removed trees with other suitable trees (control C17).

31. The objectives of section B3 Tree Preservation are to:

prevent the indiscriminate and inappropriate lopping or removal of trees on all land within the LGA;

maintain the physical and visual appeal and amenity of the local area by preserving a healthy tree canopy

encourage the preservation and management of suitable existing trees, and the planting and management of suitable replacement trees, in a safe and healthy condition

facilitate the management and/or removal of dangerous and unsuitable trees;

minimise the negative impacts of construction on trees on and near development sites.

32. Under the provisions of section B3 Tree Preservation of CDCP 2012, the proposed development is subject to the controls in section B3.2.1. This includes the following control:

C1 A person must not ringbark, lop, prune, remove, injure or deliberately destroy any trees 5m in height or greater and all with a trunk diameter of 150mm or greater measured at 1.4m above ground level without a permit or development consent granted by the Council, except as otherwise stated in clause 5.9 Preservation of Trees or Vegetation of the LEP or this chapter of the DCP.

33. The large tree located in the front setback of the Subject Site has a height in excess of 5m, and while its genus and species could not be confirmed during the hearing, nor was it suggested by either Party that it was included on the list of undesirable tree species provided in section B3.3 of CDCP 2012 for which Council approval is not required for removal or tree works. I conclude that the tree is therefore subject to the control identified at [32].

34. Section C2 of CDCP 21012 provides guidance in relation to dual occupancy and detached dwelling development and aims to:

ensure all neighbourhoods are safe and comfortable.

ensure a diversity of well-designed dwellings that are sympathetic to the density and function of each neighbourhood.

ensure residential streets and yards are green and leafy, with substantial tree canopy.

ensure buildings are adequately setback from existing structures to facilitate household activities and landscaping.

ensure that development provides good amenity, solar access and privacy for occupiers of new and existing buildings.

ensure that development is of a high quality design, appearance and performance.

35. Section C2.2.1 of CDCP 2012 provides guidance for minimum lot frontage requirements for developments on land to which its controls apply. It notes that the minimum lot size controls are contained in CLEP 2012, and that the minimum frontage controls provided in CDCP 2012 supplement the provisions of CLEP 2012 to ensure that subdivisions result in sites with suitable dimensions, configuration and amenity.

36. The objectives for minimum lot size and frontage under section C2.2.1 are to:

ensure that land is of an adequate size and shape to accommodate development whilst providing adequate amenity for occupants of the site and surrounds.

ensure there is adequate area for vehicle access and parking.

ensure sites have sufficient dimensions to accommodate adequate landscaped open spaces.

37. The lot frontage controls provided under section C2.2.1 are:

C1 Dual occupancy and semi-detached dwellings must have a street frontage.

C2 Minimum 15m width, measured at the street boundary. On corner lots, this means the short boundary.

C3 Each dwelling is required to have a minimum frontage width of 7.5m.

C4 On irregular blocks, the site width is measured at the required front setback.

C5 Dual occupancy (detached) is acceptable only where each dwelling can face and have frontage to the street, such as on a corner site.

38. The Subject Site is an irregularly shaped block, and so while controls C2 and C3 under section C2.2.1 of the CDCP 2012 apply to the development, their measurement is subject to control C4, that is, the measurements should be taken at the required front setback.

39. Setback controls applicable to the Subject Site are provided under section C2.3.3 of CDCP 2012, the objectives of which are to:

establish the desired spatial proportions of the street and define the street edge;

limit the scale and bulk of development by retaining landscaped open space around;

contribute to the natural landscape by retaining adequate space for new trees and conserving existing visually prominent trees;

provide sufficient separation between buildings and adjacent land to limit the visual, environmental and likely potential amenity impacts of new development;

minimise stormwater run-off by retaining deep soil areas that facilitate rainwater infiltration.

40. The relevant controls applicable to the Subject Site are provided in Table C2.2, and are:

Front Setback: Minimum setback of 6m from the front boundary.

Side Setbacks: Minimum setback of 1.2m from side boundaries.

Rear Setbacks: Minimum setback of 6m from the rear boundary.

41. Control C3 in section C2.3.3 also provides that:

Front and rear setbacks are to be provided as deep soil areas. Driveways and footpaths may cross deep soil areas.

Contentions

42. At the commencement of the hearing the Parties advised that, as a consequence of the amended plans, a contention concerning the compliance of the proposed development with the FSR control under clause 4.4 of CLEP 2012 was no longer pressed by the Respondent.

43. The remaining contentions during the hearing addressed the following questions:

1. is the subject site appropriate for dual occupancy development?

2. is the landscape plan, including the proposed removal of the large tree in the front setback, acceptable in terms of the requirements of CDCP 2012?

3. are the proposed parking arrangements acceptable in terms of the requirements of CDCP 2012?

Is the subject site appropriate for dual occupancy development?

44. As noted at [14], [18] and [20], the subject site complies with the permissibility and subdivision lot size standards established under CLEP 2012.

45. However, as identified at [4], the subject site has a narrow and splayed street frontage, with the width of the street frontage to Fuller Avenue being 5.4m.

46. Under the minimum lot size and frontage controls in CDCP 2012, a site proposed for dual occupancy should have a 15m width as measured at the street boundary, and each individual lot in a dual occupancy should have a minimum frontage width of 7.5 m.

47. CDCP 2012 also provides that for irregularly shaped blocks, such as the Subject Site, the site width should be measured at the required front setback of the proposed development. As identified at [40], the required front setback is a minimum of 6 from the front boundary of the Subject Site.

48. The Respondent drew the Court’s attention to the development application assessment report prepared by Canterbury Bankstown Council, and which confirmed that:

1. Council required that the minimum width of Subject Site, as required under control C2 of section C2.2.1, be measured at the required minimum setback distance from the front boundary, which for a dual occupancy development such as in the current appeal was at a distance of 6m from the front boundary;

2. at the required 6m minimum front setback the Subject Site had a width of 11m, which was 4m less than the minimum required under the control in section C2.2.1 of CDCP 2012;

1. the width of the dual occupancy lots that would result from subdivision of the Subject Site would be 9m for the eastern lot and 2m for the western lot. As a consequence, Council had concluded that the minimum lot width required for the western dwelling fell short of the control in CDCP 2012 by 5.5m.

49. This interpretation of the control by Council was challenged by the Applicant in the hearing. The Applicant submitted that the proposed development was compliant with the control because, in its view, the minimum frontage width should be measured at the forward building line of the proposed development, rather than at the 6m front setback distance from the boundary as contended by Council.

50. The Applicant submitted that, on this basis, and consistent with its development application:

1. the width of the subject lot should be taken as 15.955m, which was the lot width at the proposed forward building line, which would exceed the 15m lot width control for the Subject Site, and

2. the width of each dual occupancy lot at the proposed forward building line would also exceed the 7.5m control required under CDCP 2012 for dual occupancy lots following the subdivision.

51. Mr Anthony Betros for the Respondent, and Mr Jeff Mead for the Applicant provided expert planning evidence in relation to the measurement of the proposed development’s front lot widths. The experts held differing opinions on this matter.

52. In their joint report, Mr Mead had opined that, as the Subject Site measured more than 15m at the proposed front building line, it ‘met the intent’ of CDCP 2012 which he said was to increase the front setback provided by the development to its forward building line.

53. Mr Betros disagreed with Mr Mead’s interpretation of the control, and supported Council’s application of the control as being more correct, and, in his view, consistently applied by Council.

54. Having considered this matter, I am of the view that the correct interpretation of the front setbacks control is that adopted by the Respondent.

55. In arriving at this conclusion I have relied on the wording of the control which provides that for irregular blocks the site width should be measured at the ‘required front setback’. This is clearly established within section C2.3.3 of CDCP 2012 as being a minimum setback of 6m from the front boundary, there being no other distance or basis for measurement identified in the control.

56. I am of the view that, if the intent of the drafters of this control had been for the width to be measured at the front building line of a proposed development, it would have been a straightforward matter for it to be so drafted, and it was not.

57. Consequently I accept that the distance from the front boundary at which the control should be applied is the minimum 6m distance set down as the required front setback for a dual occupancy.

58. I conclude that the proposed development does not comply with either the lot width controls for the Subject Site or the dual occupancy lot width control within CDCP 2012 as it applies to the proposed development.

59. Notwithstanding this, I am also mindful of the requirements of s79C(3A) of the EPA Act, that if:

the development application does not comply with those standards, the consent authority is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development.

60. The question then becomes, does the alternative proposed by the Applicant achieve the objects of the minimum lot size and frontage controls applicable to the proposed development?

61. The relevant objectives against which to assess the alternative proposed by the Applicant are those set out above at [36], which are to:

1. ensure that land is of an adequate size and shape to accommodate development whilst providing adequate amenity for occupants of the site and surrounds.

2. ensure there is adequate area for vehicle access and parking.

3. ensure sites have sufficient dimensions to accommodate adequate landscaped open spaces.

62. The Parties did not bring a contention challenging the amenity afforded by the dwellings proposed on the Subject Site, and I’m satisfied that the proposed development can provide adequate amenity of the future occupants of the site or those living in the surrounding area.

63. The other two objectives relate to the adequacy of the proposed development’s landscaping and the adequacy of its proposed vehicle access and parking.

64. The degree to which the proposed development satisfies these objectives is addressed within the context of the second and third questions proposed at [43].

Is the landscape plan, including the proposed removal of the large tree in the front setback, acceptable in terms of the requirements of CDCP 2012??

65. A landscape plan for the proposed development was tendered as evidence within the set of amended plans appended to the joint report of the planning experts, and for which the Applicant had been granted leave to rely upon in this appeal.

66. The landscape plan was also the subject expert testimony by Mr Mead and Mr Betros.

67. Mr Betros said that, in his opinion, landscape outcomes for the development should be consistent with the landscaping achieved on other lots in Fuller Avenue. He noted that, based on a review of aerial photographs of the area, he had estimated that the average areas of front setback in Fuller Avenue was 78m2, and within this area, lots had dedicated an average of 54m2 (or 70%) to landscaping.

68. Mr Betros said that, in his opinion, the landscape plan for the proposed development did not provide 70% of its front set-back as landscaping and, as a consequence, was inadequate in relation to his proposed benchmark.

69. Mr Mead said that he had measured the proposed landscaping in the front setback of the proposed development and that this equated to some 58m2 of landscaping, which exceeded the 70% benchmark proposed by Mr Betros. He noted that, in his opinion, some other properties in the street provided less than this area of landscaping in their front setbacks.

70. Mr Mead suggested that the difference in the experts’ calculation of landscaped area within the front setback related to the most western area of proposed landscaping, which Mead had included in his calculations, and which, Mr Mead said, Mr Betros had excluded.

71. Finally, Mr Mead observed that, notwithstanding Mr Betros’ proposition that 70% of front setbacks should be dedicated to landscaping, CDCP 2012 did not provide a numeric standard for the amount of a front setback that should be set aside for landscaping.

72. Having reviewed the landscaping plans and compared the landscaping proposed for the dual occupancy development with that of other properties in the street (as seen during the site view and through aerial photographs), I am satisfied the proportion of the front setback proposed for landscaping by the Applicant is comparable to that afforded by other properties in the area.

73. Based on the evidence of the planning experts, the area of landscaping proposed and the absence of a numeric standard for front setback landscaped area in CDCP 2012, I am satisfied that the area of landscaping proposed is acceptable.

74. Notwithstanding my conclusion at [73], under the Applicant’s landscape plan, it is proposed that the large, visually prominent tree, within the front setback (discussed above at [5]), should be removed and replaced by two native Australian trees of the species Angophora costata.

75. Mr Betros said that in his opinion, removal of the large and visually prominent tree in the front setback reflected the fact that the narrow width of the Subject Site was insufficient to accommodate an adequate, landscaped open space as required under control C3 of C2.2.1 of CDCP 2012.

76. Mr Betros said that this conclusion was reinforced by the landscape plan’s incapacity to meet objective O3 of section C2.3.3 (Setbacks) within CDCP 2012, which provides that front setbacks should:

3. contribute to the natural landscape by retaining adequate space for new trees and conserving existing visually prominent trees.

77. Mr Betros said that the large tree within the front setback of the Subject Site was visually prominent within broader local area, most notably from parkland on the opposite side of the Sydney Water canal from the Subject Site. The Applicant agreed that the tree was visually prominent from this location, but questioned whether it was prominent from other locations within Fuller Avenue.

78. In response to a question from the Applicant, Mr Betros said that the retention of the large tree in the front setback would address his concerns in relation to the proposed development’s response to objective O2 in section C2.3.3 of CDCP 2012 which aims to limit the scale and bulk of developments by retaining landscaped open space around such developments.

79. Having considered the evidence of the experts, I favour the position of Mr Betros on this matter, and agree with him that removal of the large, visually prominent, tree in the front setback reflects the significant constraints of the Subject Site at its Fuller Avenue frontage.

80. The direct consequence of this narrow width is that the Subject Site is unable to accommodate an adequate, landscaped open space as required under control C3 of C2.2.1 of CDCP 2012 for minimum lot size and frontage.

81. I also agree with Mr Betros that the retention of the large tree in the front yard is consistent with the objectives in other parts of CDCP 2012, including objective O3 of section C2.3.3 concerning front setbacks. Consequently, I conclude that the large, visually prominent, tree should be retained.

82. During the hearing the Applicant tendered draft conditions of consent that proposed the retention of the large tree, but which would also have permitted some pruning of that tree should removal of a limb of that tree be required in order to provide clearance for vehicle access and manoeuvring on-site.

83. However, neither Party was able to provide arboricultural evidence to confirm the viability of this proposal with respect to the long term health of the large tree. In the absence of such evidence I am reluctant to consider this proposed condition further in this appeal.

84. Based on the evidence before me, and my consequent acceptance of the proposition of Mr Betros that the large tree in the front setback should be retained, I am satisfied that:

1. while the area of landscaping in the front setback proposed by the Applicant is acceptable, the landscape plan is not consistent with objectives of section C2.2.1 of CDCP 2012 for minimum lot size and frontage (see [79 and 80].

2. the proposed landscape plan is also not consistent with other objectives in CDCP 2012, including those in:

1. section C2.3.3 for setbacks, and in particular the objective that:

1. setbacks should contribute to the natural landscape by retaining adequate space for you trees and conserving existing visually prominent trees;

2. section C2.1 of CDCP 2012 for the dual occupancy and semi-detached dwellings controls, which include, in particular, the general objective to:

1. ensure residential streets and yards are green and leafy, with substantial tree canopy.

85. I conclude that the width of the Subject Site, and the width of the lots that would result from subdivision for dual occupancy, do not satisfactorily achieve the objectives of the controls in CDCP 2012 for minimum lots size and frontage.

Are the proposed parking arrangements acceptable in terms of the requirements of CDCP 2012?

86. As noted at [28], the controls in section B1.3.1 of CDCP 2012 require that dual occupancy developments with three or more bedrooms should provide two car parking places for each dwelling, and the proposed development satisfies this control.

87. Beyond this minimum requirement, the objectives of several other sections of CDCP 2012 are also of relevance to the proposed development, notably:

1. the objectives within section B1 for traffic and parking which are provided in (see [27]), and include as Objective O5 the aim to:

1. ensure vehicle facilities are compliant, functional and safe.

2. the objectives provided within section C2 for dual occupancy and detached dwelling development (see [34]), which provide that such developments should:

1. ensure all neighbourhoods are safe and comfortable..

88. During the hearing, expert evidence on traffic and parking was provided by Mr Ken Hollyoak for the Applicant and Mr Elias Elias for the Respondent, as part of which the Applicant tendered swept path analyses for each of the proposed dwellings prepared by Mr Hollyoak.

89. The experts agreed that the safest method for a vehicle to exit the Subject Site would be in a forward direction. Mr Hollyoak said that his swept path analyses had confirmed that, from the perspective of vehicle access and exit from the proposed development,:

1. for the proposed western dual occupancy dwelling, any vehicle parked in either its garage or on its driveway:

1. would be able to reverse and turn so as to exit in a forward direction from that lot;

2. would need to pass by the northern side of the large tree in the front setback to complete its exit from the lot, with the possibility that a large limb of that tree could hinder that exit path.

2. for the proposed eastern dual occupancy dwelling, any vehicle parked in either its garage or on its driveway:

1. would only be able to exit the lot in a forward direction by completing a reversing/turning manoeuvre over the area presently occupied by the large tree in the front set back of the Subject Site;

2. would, in circumstances where the large tree remained on site, need to exit the lot by reversing out onto Fuller Avenue.

90. Based on the evidence before me, I must conclude that in order for a vehicle to exit the Subject Site in a forward direction, it would be necessary for the large tree presently in the forward setback to be removed.

91. However, at [81] I agreed with the evidence of Mr Betros that retention of the large tree in the front yard is consistent with the objectives in other parts of CDCP 2012, including objective O3 of section C2.3.3 concerning front setbacks, and so concluded that the tree should be retained.

92. If the large tree is retained, then based on the swept path analyses tendered during the hearing, I also conclude that it would not be possible for a vehicle to exit the Subject Site in a forward direction, at least in relation to the most eastern of the proposed dual occupancy dwellings.

93. While the experts had agreed that the safest method for a vehicle to exit the Subject Site would be in a forward direction, the Applicant proposed that, given the low volume of traffic in the street and the low demand for visitor parking on street, it would be possible for a resident or visitor to the development to reverse safely out of the Subject Site onto Fuller Avenue.

94. In response to questions from the Applicant, Mr Elias agreed that Fuller Avenue was a relatively quiet street and that demand for parking on street by visitors and residents was low.

95. However, Mt Elias also agreed with a submission from the Respondent that vehicle drivers require good sight lines to exit properties safely, and that a driver’s vision would be restricted when exiting the Subject Site, particularly while reversing, given the narrow nature of the frontage at 36 Fuller Avenue. He also said that this presented a risk of adverse interactions with pedestrians or other vehicles while exiting the site. He noted that requiring that this exit manoeuvre be completed by reversing out of the site would elevate this risk.

96. The Respondent submitted that a reversing vehicle exiting the site may, as a consequence of the narrow terminus of the street at the Sydney Water canal, need to continue its reverse up Fuller Avenue for some distance in order to turn before being able to progress in a forward direction, and that this presented a further risk to pedestrian safety.

97. During his expert testimony, Mr Betros said that the outcomes of the swept path analyses exemplified, in his opinion, the inadequacy of the Subject Site for dual occupancy development. He said that having to reverse a vehicle in order to exit the Subject Site was contrary to the objectives of CDCP 2012, including those concerning safety within section B1 (see above at [87(1)]). Mr Betros agreed that this was a planning issue and he said it further confirmed his view that the Subject Site is not suitable for a dual occupancy development.

98. In response to a question from the Applicant, Mr Mead indicated that he had no comment to make in relation to the swept path analyses.

99. Based on the evidence in the hearing, I conclude that the parking arrangements within the proposed development are not acceptable in terms of the requirements of CDCP 2012 because:

1. with the retention of the large tree in the front setback, it would not be possible for all vehicles to exit the Subject Site in a forward direction, notably in relation to the most eastern of the proposed dual occupancy dwellings;

2. the restricted sightlines at the front access point to the Subject Site, due to its narrow frontage, mean that an exit manoeuvre from the Subject Site presents risks to pedestrians and other vehicles, and a reversing manoeuvre would present an even greater risk;

3. these risks are contrary to the objectives of CDCP 2012, including:

1. the objectives within section B1 for traffic and parking which are provided in (see [27]), and include as Objective O5 the aim to:

1. ensure vehicle facilities are compliant, functional and safe.

2. the objectives provided within section C2 for dual occupancy and detached dwelling development (see [34]), which provide that such developments should:

1. ensure all neighbourhoods are safe and comfortable.

Conclusion

100. Based on the above considerations, I am satisfied that:

1. the proposed development does not comply with the frontage controls in section C2.2.1 of CDCP 2012;

2. the proposed development does not achieve the objectives of the Minimum Lot Size and Frontage controls provided in section C2.2.1 of CDCP 2012, notably objective O3 which aims to ensure that sites have sufficient dimensions to accommodate adequate landscaped open spaces, limiting the application of cl79C(3A) of the EP&A Act.

3. the proposed development also does not achieve the objectives of:

1. section C2.3.3 for Setbacks, and in particular the objective O3 of C2.3.3 that setbacks should contribute to the natural landscape by retaining adequate space for you trees and conserving existing visually prominent trees. A visually prominent tree in the front setback of the proposed development is proposed for removal under the developments landscape plan.

2. section C2.1 of CDCP 2012 for the dual occupancy and semi-detached dwellings controls, which include, in particular, the general objective to ensure that residential streets and yards are green and leafy, with substantial tree canopy.

4. without removal of the visually prominent tree in the front setback of the proposed development, it would not be possible for a vehicle to exit the Subject Site in a safe, forward direction, particularly in relation to an exit from the most eastern of the proposed dual occupancy dwellings;

5. the restricted sightlines at the front access point to the Subject Site mean that any exit manoeuvre from the Subject Site presents a risk to pedestrians and other vehicles, and an exit that would require a reversing manoeuvre would present an even greater risk;

6. these risks are contrary to the objectives of CDCP 2012, including:

1. the objectives within section B1 for traffic and parking which are provided in (see [27]), and include as Objective O5 the aim to:

1. ensure vehicle facilities are compliant, functional and safe.

2. the objectives provided within section C2 for dual occupancy and detached dwelling development (see [34]), which provide that such developments should:

1. ensure all neighbourhoods are safe and comfortable.

101. I conclude that development consent should not be granted to the Applicant’s development application DA 60/2017.

Orders

102. The Court orders that:

1. The appeal is dismissed.

2. Development application DA69/2017 for the demolition of existing structures and the construction of a dual occupancy development with associated Torrens Title subdivision into two lots is determined by refusal.

3. The exhibits are returned with the exception of Exhibits 1 and B.

………………………….

Michael Chilcott

Commissioner

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Decision last updated: 31 January 2018