Church v Leichhardt Council

[2006] NSWLEC 671

Land and Environment Court

of New South Wales

CITATION:	Church v Leichhardt Council [2006] NSWLEC 671
PARTIES:	APPLICANT Tony and Wendy Church RESPONDENT Leichhardt Council
FILE NUMBER(S):	10299 of 2006
CORAM:	Brown C
KEY ISSUES:	Development Application :- construction of an on-site car parking space and a new crossing - loss of on street parking - impact on existing tree
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Leichhardt Local Environmental Plan 2000
DATES OF HEARING:	26/10/2006
EX TEMPORE JUDGMENT DATE:	10/26/2006
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Ms J Walsh, solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

26 October 2006

10299 of 2006 Tony and Wendy Church v Leichhardt Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Leichhardt Council (the council) of Development Application D/2005/286 for the relocation of a pedestrian gate, insertion of a sliding timber gate, construction of an on-site car parking space and new driveway crossing (with access from Valley Street) at 1 Wortley Street, Balmain (the site).

2 The proceedings were conducted as an On Site Hearing and the judgement reflects the details in the Statement of Basic Facts and the findings given on 26 October 2006.

3 The site is Lot 2 in DP 1035139. It is irregular in shape with frontages to Wortley Street and Valley Street and a total site area of 232.65 square metres. A two-storey semi-detached dwelling is located on the site and is built to the western boundary. The open space for the dwelling is located to the east, facing Valley Street. No car parking facilities are currently provided on-site.

4 A large Eucalyptus saligna (Sydney Blue Gum) is located in the southeastern corner of the adjoining property at 2a Valley Street, adjacent to the proposed car parking space.

5 The site is located within the Residential zone under Leichhardt Local Environmental Plan 2000 (LEP 2000). The proposed use is permissible within this zone.

6 Leichhardt Development Control Plan 2000 (the DCP) provides requirements for car parking. The site falls within The Valley (Balmain) Distinctive Neighbourhood. Part A, 10.6.4 of the DCP identifies the following neighbourhood control:

Driveway crossings are discouraged for single residential developments.

7 Part B, B1.3 addresses car parking. The principles state:

Ensure that where on-site parking is required the layout and design:
• respects the quality and integrity of the streetscapes of Leichhardt; and
• is safe and efficient; and
• has regard to the layout, siting and use of neighbouring buildings; and
• is integrated with the overall site and building design.

8 Part B, B1.3 also states:

No on-site parking is allowed for single dwellings on one allotment where vehicular crossings disrupt the continuity of the footpath and verges and reduces on street parking capacity.

9 The council filed an amended Statement of Issues containing four issues. The loss of the sandstone kerbing and guttering (Issue 3) was not pressed by the council. The matters raised by objectors (Issues 4) are addressed in the consideration of the active issues. These are:

1) whether the proposal will result in the loss of on street car parking (Issue 2), and
2) whether the proposal will have an acceptable impact on the adjoining Sydney Blue Gum (Issue 1).

10 On the issue of loss of on street car parking, there was agreement that the proposed driveway would result in the potential loss of one car parking space on Valley Street between Wortley Street and Creek Street if assessed under the NSW road rules that prohibit parking within 10 metres of a corner. This would provide the opportunity for two on street car parking spaces, one of which would be lost by the proposed driveway. As I understand, that part of Valley Street between Wortley Street and Creek Street generally accommodates up to 4 cars notwithstanding the requirements of the NSW road rules.

11 Ms Gail Lee of 2A Valley Street and Ms Janette Hewson of 2 Creek Street provided evidence on site and stated that on street parking was at a premium from around the midafternoon and that any loss of on street parking would have an acceptable impact.

12 In response the applicants, Mr and Ms Church indicated that they had lived in the immediate area for 15 years and did not accept that on street parking was a problem. They provided details of a survey they undertook for that part of Valley Street between Wortley Street and Creek Street. The survey was conducted between 17 July 2006 and 30 July 2006 and involved 128 observations generally between the hours of 6 a.m. and 11 p.m. The results indicated an average of 1.6 vehicles, a range 0 - 4 vehicles with the most occurring number of vehicles being 1 vehicle. Mr and Ms Church also provided a petition from neighbours in support of the proposed off street parking. The 24 signatures on the petition were from 18 nearby residences in Valley Street, Wortley Street, Creek Street and Palmer Street.

13 While accepting that the parking survey should not be seen as definitive, it nonetheless provides some helpful guidance. When the survey is considered with the petition, and balanced against the evidence of Ms Lee and Ms Hewson, I am satisfied that that the potential loss of one on street car parking space is not so critical that the application should be refused, notwithstanding the requirements of the DCP.

14 I note some tension between similar provisions in the DCP where Part A, 10.6.4 seeks to “discourage” driveway crossings (and presumably on-site parking) whereas Part B, B1.3 seeks to effectively prohibits on-site parking. I am also mindful that the overall issue of on-site parking includes the impact on streetscape. In this case, there was no issue over streetscape because of the sensitive design of the access gate. Overall, I accept that the proposed development is consistent with the principles in Part B, B1.3 of the DCP.

15 The impact on the Sydney Blue Gum was addressed by arborists, Mr Ian English for the council and Mr Chris Boers for the applicant. Mr Mark Edenborough, a stormwater and development engineer with the council provided evidence on the proposed gutter crossing and driveway

16 Mr English and Mr Boers agreed that the Sydney Blue Gum appeared to be in relatively good condition although it is not known what roots were damaged in the construction of the dwelling at 2A Valley Street and potentially compromised the health or stability of the tree.

17 Mr English, Mr Boers and Mr Edenborough agreed that appropriate conditions could be formulated that would allow the construction of the on street car parking area, driveway and gutter crossing without having any effect on the health or stability of the Sydney Blue Gum. The applicant accepted these conditions.

18 The Orders of the Court are:

1) The appeal is upheld.
2) Development Application D/2005/286 for the relocation of a pedestrian gate, insertion of a sliding timber gate, construction of an on-site car parking space and new driveway crossing at 1 Wortley Street, Balmain is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of exhibits 5 and A.

_____________
G T Brown
Commissioner of the Court