David Richard and Lisa Gutheridge v Ryde City Council

[2005] NSWLEC 585

Land and Environment Court

of New South Wales

CITATION:

David Richard & Lisa Gutheridge v Ryde City Council [2005] NSWLEC 585

PARTIES:

APPLICANT
David Richard & Lisa Gutheridge

RESPONDENT
Ryde City Council

FILE NUMBER(S):

10797 of 2005

CORAM:

Tuor C

KEY ISSUES:

Development Application :- Carport
forward of the building line

DATES OF HEARING:

13/10/2005

EX TEMPORE JUDGMENT DATE:

10/13/2005

LEGAL REPRESENTATIVES:

APPLICANT
In person

RESPONDENT
Mr A Simpson, solicitor
SOLICITORS
Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

13 October 2005

10797 of 2005 David Richard & Lisa Gutheridge v Ryde City Council

JUDGMENT

1 This is an appeal against the refusal by Ryde City Council (council) of a development application for a carport at 25 Shepherd Street, Ryde (the site).

2 The carport is proposed to be set back 4.2 m from the front boundary and 900 mm from the side boundary, but is forward of the building line established by the two adjoining properties.

3 Clause 2.4.2 of Development Control Plan 17A (DCP 17A) requires that:

· Car parking must be located behind the building line.

· Garages and carports may be located in front of the building line if:

There is no vehicle access available to the rear of the allotment from any public place, road, lane or right of way.
There is no other provision on the allotment available for the erection of a carport without the building line being broken.

4 The site already has a garage that was approved in 1994 and constructed by the current owners and the applicant for this proposal. They contend that the garage is not wide enough for car doors to be opened and that the garage does not comply with the Australian Standard AS 2890 having an internal width of 2.9 m when the standard is 3.0 m.

5 Mr Phelps, council’s senior development engineer, assessed the deficiency and concluded that although the garage does not comply with the standard the “loss of 50 mm each side of a parked vehicle would not prevent a door from being opened”.

6 The internal length of the garage is 8.8 m, which provides parking for one car. Two cars can be parked if the doors at either end of the garage are open.

7 The existing garage clearly can be used for parking. The applicant’s choice not to use the garage for parking but for storage is not a reason for a carport in front of the building line in clear contravention of DCP 17A, particularly as there are no other examples of such structures in the street.

8 I note the applicant’s evidence that there are other carports forward of the building line in other nearby streets and within the Ryde Municipality. However, the circumstances of these approvals are not known. Council provided evidence that it had refused all applications for carports in front of the building line in the last three years. There is therefore no reason to conclude that DCP 17A has not been consistently applied, to the extent that its controls should be disregarded.

9 There appear to be options suggested by Mr D Smith, council’s planning expert, to amend the existing garage by changing the front to a carport which extends forward of the existing house but not forward of the building line established by the adjoining houses.

10 There is already provision for parking on the site, the existing garage could be modified to better meet the applicant’s needs and there are no other carports forward of the building line in the street. I therefore find no justification to vary the requirements of DCP 17A and the application must therefore fail.

Orders

1. The appeal is dismissed.

2. The development application for a carport at 25 Shepherd Street, Ryde, is refused.

3. The exhibits may be returned.

4. No order as to costs

_______________________
Annelise Tuor
Commissioner of the Court
rjs