Finney v Waverley Council

[2015] NSWLEC 1527

Land and Environment Court

New South Wales

Medium Neutral Citation:	Finney and anor v Waverley Council [2015] NSWLEC 1527
Hearing dates:	18 November, 16 December 2015
Date of orders:	16 December 2015
Decision date:	16 December 2015
Jurisdiction:	Class 1
Before:	Hussey AC
Decision:	1. The appeal is dismissed. 2. Development Application DA – 490/2014 for alterations to the front façade for a new hardstand space, landscaping, front fence and garden at 54 O’Donnell Street, North Bondi is refused. 3. The exhibits may be returned except 1, 4 and A.
Catchwords:	Development Application: Alterations to the front façade of dwelling to allow for a hard stand space within the front setback area. Inadequate space, streetscape, loss of on-street parking and precedent.
Legislation Cited:	(a)Environmental Planning and Assessment Act ("EP&A Act") (b)Environmental Planning and Assessment Regulations 2000 ("EP&A Regulations). (c)State Environmental Planning Policy 55 - Remediation of Land ("SEPP 55") (d)Waverley Local Environmental Plan 2012 ("WLEP"); Under which the site is zoned R3 Medium Density Residential and is not listed as a heritage item or within a conservation area (e)Waverley Development Control Plan 2012 - Amendment No. 2 ("WDCP").
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Justin Finney and Meegan Finney (Applicant) Waverley Council (Respondent)
Representation:	Solicitors: Ms E Whitney (Respondent) Wilshire Webb Staunton Beattie Lawyers Ms S Hill (Applicant) Hones Lawyers
File Number(s):	10716 of 2015
Publication restriction:	Nil

Judgment

Background

1. This appeal is against Council’s refusal of a development application to alter the front façade of a dwelling located at 54 O’Donnell Street, North Bondi so as to provide an additional setback to accommodate a hard stand car space.

2. The proposed works involve:

1. Alterations to the front facade of the semi-detached dwelling to accommodate the car space within the front setback. The works include demolition of the front sunroom, alterations to the front wall of Bedroom 1 to replace a door with a window and alterations to the front fence and landscaping. The car space is to be surfaced partly with crushed granite and part hardstand (ie the existing floor of the sunroom).

2. The hardstand space measures 6.6m in depth and tapers from a width of 3.8m at the street boundary to 2.5m.

3. A solid front fence with a pedestrian and driveway gate, to a height of 1.15 to 1.5m, is proposed by increasing the height of the existing fence.

3. The contentions identified for the appeal concern:

• Inadequate setback because the existing setback between the building and front boundary is 4.7m, which is below the designated 5.4m DCP control.

• Adverse impact on streetscape.

• Loss of on-street parking.

• Precedent.

4. This matter was listed as a Section 34AA matter and commenced by way of an initial conciliation conference. There being no agreement it was terminated and the matter proceeded for determination, taking into account matters discussed and observed at the view.

The site

5. The site is described as Lot B in DP 404687. It is slightly irregular in shape with a northern front boundary measuring 6.555m, southern rear boundary measuring 6.47m and western side boundary measuring 45.405m and eastern side boundary measuring 44.74m. The site has an area of 293.6 sqm.

6. The site is located on the lower side of O'Donnell Street between Military Road to the east and Wairoa Street to the west. It falls from the front of the site (O'Donnell Street) towards the rear boundary by approximately 4.95 metres and also has a crossfall from east to west.

7. There is a single storey semi-detached dwelling with no vehicular access or on-site parking currently existing.

Planning controls

8. The following controls apply:

1. Environmental Planning and Assessment Act ("EP&A Act")

2. Environmental Planning and Assessment Regulations 2000 ("EP&A Regulations).

3. State Environmental Planning Policy 55 - Remediation of Land ("SEPP 55")

4. Waverley Local Environmental Plan 2012 ("WLEP"); Under which the site is zoned R3 Medium Density Residential and is not listed as a heritage item or within a conservation area

5. Waverley Development Control Plan 2012 - Amendment No. 2 ("WDCP").

9. In this matter, the relevant controls are contained within the WDCP. Clause 8.4 deals with “urban design” with the following objective and controls:

Objective

1. To ensure the provision of off-street parking is subject to considerations of urban design, streetscape and heritage conservation.

Controls

1. Where off street parking is not characteristic of the street, vehicular access from the street is not permitted…

2. Where only front access is available, car parking shall be provided behind the front building line, unless otherwise indicated in the controls within the DCP.

3. Car parking and vehicular access must not dominate the streetscape. Landscaping is to be used to soften the impact of such structures/areas…

10. Clause 1.10 deals with car parking on the basis that:“

The provision of private (on-site) and public (on-street) parking must be managed in an equitable and environmentally sensitive manner that benefits the community as well as the individual. When considering applications, the following general principles shall apply:

Strategies

• The provision of car parking on-site may not be appropriate in all locations or circumstances and approval will only be granted where the site and locality conditions permit.

• Car parking must be designed to complement the design of the building and streetscape to which it relates and incorporate a range of appropriate materials and design.

• Where site conditions allow, car parking structures should be located behind the front building line. In some circumstances, car parking structures in front of the building line may not be appropriate for streetscape or design reasons.

• Driveways and vehicular access should be designed to minimise the loss of on-street parking wherever possible…

Objectives

1. To provide convenient and accessible parking that is appropriately designed and located.

2. To achieve a high standard of urban design and retain the visual quality of residential buildings, streetscapes and landscapes.

3. …

4. To ensure that car parking accommodation does not dominate or adversely impact on the existing built or landscape character of the street.

5. To encourage the use of alternative modes of transport in areas well serviced by public transport.

6. To ensure on-street parking supply is protected by minimising impacts of additional vehicular kerb crossings.

11. The locational provisions for various on-site parking arrangements are contained in 1.10.2 and relevantly include:

1. A hardstand (in the form of wheel strips) or carport forward of the building line may be permitted where:

1. There is no rear access;

2. The site is of sufficient width where the car space will not dominate the existing building (i.e. does not exceed 45% of the width of the site frontage);

3. It is no greater than a single car space;

4. The distance between the building and the front property boundary is a minimum of 5.4m.

5. There is a predominance of this form of off street car parking in the immediate vicinity of the site; …

6. …

12. Clause 1.10.3 deals with design consideration, including :

1. No element of the street facade/frontage of a building, including verandahs and window awnings are to be removed or demolished in order to accommodate car parking unless mitigating measures are taken to ensure cohesive integration of the works with the building

The evidence

13. A detailed joint planning report was presented by:

1. Ms K Gordon;   Respondent’s consulting planner

2. Mr J Mead;      Applicant’ consulting planner.

Parking space setback/building alterations

14. The planners initially agreed that there is insufficient distance (4.7m) in the front setback area to accommodate the car space and therefore part demolition of the front enclosed verandah/sunroom is required. However, Mr Mead supported the conditional approval of the application, noting that the property is not in a conservation area. He considers that the alterations could be undertaken as Complying Development under SEPP (Exempt and Complying Codes) 2008 in any case.

15. Insofar as Ms Gordon does not support the application, she agreed that the sunroom enclosure was unlikely to be part of the original building fabric and therefore conditions could be imposed on any consent to address the integration of the parking area with the building alterations and reasonably satisfy cl 1.10.3 (c) of the WDCP. Such conditions include:

1. Retain the existing front columns;

2. Retain the existing balustrade element and remove the window

3. Keep existing window in new frame.

4. Fencing to have a maximum height of 1.2m and gates to be 50% transparent, as required by WDCP.

16. With regard to the landscaping of the front setback area, the experts agree that the proposal complies with the WDCP and subject to planting one small tree in the frontage would be acceptable.

Streetscape

17. The threshold issues in this matter concerns whether the hardstand area should be permitted in the subject context and whether the streetscape impact is acceptable. The key urban design control is that where off street parking is not characteristic of the street, vehicular access from the street is not permitted.

18. However, the more specific on-site parking controls allow for discretion on the basis of the following location hierarchy:

1. Hardstand, carports or garage to located at the rear of the property;

2. Hardstand, carports or garage to be located at side of building behind the building alignment;

3. Hardstand car spaces forward of the building line.

19. But the qualification for (iii) is that there is a predominance of this form of off street parking in the immediate vicinity of the site. Accordingly, the planners considered this requirement.

20. O’Donnell Street has an interesting vertical alignment adjacent to the subject lot because there is a split level road pavement along the centreline. The height along this split section is in the order of 2m with No 54 being on the southern (low) side. This low level road and footpath extends past the subject land in an easterly direction to No 42 where there is a set of steps leading back to the singular, upper level road pavement.

21. In terms of the WDCP “immediate area” considerations both planners agreed that Wairoa Ave formed the western boundary. Ms Gordon considers the eastern boundary is the property at the base of the steps. Mr Mead considers this area is further to the east adjacent to No 29 O’Donnell Street. The planners also considered the existing parking arrangements on both the subject side of the road and opposite.

22. Based on the planners observations and ‘immediate area’ delineation shown in Ex 5, the existing parking/driveway arrangements forward of the building line in O’Donnell Street are:

1. K Gordon;      lower level, southern side      12.5%

both sides;            11.1%

2. J Mead;      expanded catchment area      36.4%

23. Having undertaken a view it is apparent to me that the split road seems to form a relatively discrete area between Wairoa Ave and the bottom of the steps adjacent to No 42. I consider that the 2m (variable) height retaining wall along the roadway differentiates the two sides. A further distinction is that there is a general degree of consistency with the (compliant) basement garaging behind the building line for the higher level dwellings opposite, which is different to the existing situation on the southern side. This is notwithstanding the long term presence of the poor streetscape contribution of the RFB at “The Dunes”, which predates the WDCP 2013 controls.

24. Because of the containment effect of the split carriageway and end steps, I think it delineates a different streetscape character to that east of the steps at No 42. Accordingly it is appropriate to rely on the lower level catchment area defined by Ms Gordon as the “immediate vicinity”. This means that one property in eight (12.5%) have this form of parking forward of the building line. Therefore I do not consider that this represents a predominance of this form of parking in the immediate vicinity and consequently cl 1.10.2 (d) (vi) is not satisfied.

25. Apart from this, the planners also considered cl 1.10 Objective (a) and (d) as to whether the proposal would achieve a high standard of urban design and retain the visual quality of the residential buildings, streetscapes and landscapes. Also whether the parking proposal would likely dominate or cause adverse impacts.

26. Mr Mead says that the proposal will not dominate the existing built or landscape character because:

1. It will not be of a form that is imposing or more noticeable than other elements of the highly varied streetscape of the locality, which includes a large number of off-street parking elements, a variety of building types, architectural styles, fencing design and landscape treatments.

2. When a car is not parked in the space, the front setback area will appear as a courtyard with landscaping, contained behind a front boundary fence. The amount of landscaping is compliant with Council's controls and therefore the hardstand will not appear different to a paved courtyard which is envisaged by the DCP control (ie. the DCP accepts that the entire front setback need not be soft landscaping).

3. When a car occupies the space, there will still be a beneficial impact of the landscaping on either side of that space and the front fencing so as to minimise the visual impacts of the location of that car. He notes that if on-street parking were to remain, there would be a visual presence of a car at the front of the subject site when viewed within the streetscape. Therefore, the proposal will not give rise to a dominance in the streetscape of car parking, particularly when viewed collectively as part of the wider streetscape or character of the locality.

4. When looking at the streetscape and character basis for the controls a typical application of these concepts should be applied. The character of the locality and streetscape must go beyond the immediately adjoining properties on the same side of the street instead of the preferred approach of Ms Gordon.

27. According to Ms Gordon evidence:

1. As the predominant form of parking in the immediate vicinity of the site is not parking spaces forward of the building line, the introduction of such a space on the subject site would have a detrimental impact upon the streetscape. Even if the existing dwelling was not required to be altered to provide the space, this opinion would be maintained.

2. Given the building has to be unsympathetically altered to provide the space, then the impact upon the streetscape of providing the parking space would be even more unacceptable. The dwelling on the subject site is a semi-detached dwelling with a simple form, with the only significant architectural detail to the front facade being that provided by the existing verandah form (now enclosed). Notwithstanding the verandah has been enclosed (which is common in the semi-detached dwellings in the vicinity of the site), its detailing by way of the simple columns, horizontal balustrade and horizontal inset below the balustrade still reveals the original form of the dwelling and the proposal would not satisfy Objective (b) to obtain a high standard of urban design and retain the existing visual quality.

Loss of on –street parking

28. This issue concerns the appropriate balance between the personal and public interest considerations in the provision of parking spaces where there significant competition for available spaces. Ms Gordon’s opinion is that:

1. “Whilst I sympathise with the owner in wanting to ensure they have exclusive access to a parking space in front of their dwelling, it must be acknowledged that in providing such a space they must make it harder for the other residents and visitors to the street to find on-street parking, particularly at peak periods. Therefore whilst there is no change in parking demand due to the proposal, there most certainly is a change in parking supply to the other residents and visitors in the street. When the existing onsite space that would be lost is vacant, it can be used by any resident or visitor to the street, including the owners of the subject site. When the new off-street space is vacant, it will no longer be available to the other residents and visitors. It is for this reason that I say the space is effectively "privatised" as the supply situation is going from one where the on-street space is shared in peak parking demand periods by all potential users to one where the space can only be used by the owner of the site and remains underutilised when that owner does not use the space.

2. In my opinion this would be an inappropriate planning outcome and is even more inappropriate where such a loss of on-street parking is provided by a space that does not comply with Council's DCP controls. In this regard I note the nearby property owners could reasonably expect that their ability to share the public asset that is the on-street parking spaces should not be reduced by the provision of a non-compliant "privatised" space.

3. I note that control 1.10.1 (b) (v) indicates that no parking may be required to be provided for dwelling houses where there is low on-street parking availability (as there is in this case) and there is no net car parking public benefit. As the loss of one public parking space is not increasing the overall parking pool (ie 2 spaces created by the loss of 1 public space) there is no net car parking public benefit and I am of the opinion that in this case no parking should be permitted on the subject site

29. Mr Mead disagrees that the proposal will make it harder for other residents and visitors to park in the street. He says that it can be assumed that at peak on-street parking times, such as at night and on weekends, the likelihood of the applicant utilising on-street parking is high (as this behaviour by the applicant and surrounding property owners is the cause of the short supply at those times).The proposal will not result in a net loss of parking, rather the applicant will park off-street rather than competing for on-street parking. Therefore this is not privatising a public asset, rather it is a matter of meeting demand that would have been placed on-street with an alternative that will have the effect of the applicant never competing for that one on-street space.

30. Furthermore, he says that the proposal does not result in the loss of more than 1 on-street car space. Instead this provision acknowledges that a "zero sum" impact on supply is acceptable when considering capacity issues.

Further information – No 32 O’Donnell Street.

31. Prior to the completion of this matter a Notice of Motion was lodged seeking to re-open and submit further details regarding the recent approval for parking strips at 32 O’Donnell Street. The Motion was allowed in part on the basis of public interest considerations and that the parties would be given the opportunity to adduce further expert evidence if this approval influenced the outcome of the subject matter.

32. No 32 is located to the east of the subject property and has a road frontage to the conventional road alignment i.e. it is significantly removed from the split level section and the aforementioned stairs. As mentioned previously, I consider that the lower level section of O’Donnell Street fronting the property is a separate and distinct section of streetscape and different from that at No 32.

33. Another distinction is that No 32 is adjoined semi-detached dwelling with No 30. No 30 has an existing enclosed garage at the street frontage abutting No 32. The Council assessment report says that.

• The locality is characterised by a variety of residential developments including detached dwellings with some semi-detached dwellings and residential flat buildings. On the northern side of O'Donneli Street, there is a mix of car parking structures which varies from hard stand, carports to garages some behind and others in front of the building line.

• The proposed parking strips do not unreasonably detract from the streetscape presentation of the pair of semi-detached dwellings, given that the adjoining pair of semi-detached dwelling at 30 O'Donneli Street contains an existing single garage within the front setback to the front boundary and carports and garages are characteristic on the opposite side of O'Donnell Street (however is not present in the same southern side frontages of the site).

• The proposed parking strips for a car parking space and new driveway are considered acceptable given the existing precedence of similar garage at the adjoining pair of semi-detached dwelling and garages across the street.

34. In my assessment these points distinguish No 32 from the subject site because the parking strips adjoin an existing garage i.e. it is in the “immediate vicinity”. I also understand from the evidence that there existing precedents opposite but that is not the case in the subject matter. If those properties opposite No 54 were to be taken into account, most of the existing parking arrangements are compliant in the form of basement parking behind the building line.

35. Accordingly, I do not consider the approval of the parking strips at No 32 creates a precedent for the subject application because of the different facts and circumstances, including that it is in a significantly different streetscape scenario.

Conclusion

36. Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent. The WDCP acknowledges that car parking is a critical issue in Waverley and accordingly provides a set of controls to deal with on –site parking. These controls provide for a hierarchy of parking locations with rear yard most preferred and parking in the front setback area least preferred.

37. However discretion may be exercised where there is a predominance of the form of car parking in the “immediate vicinity” of the site. The Macquarie Dictionary defines immediate as “nearest” or “next” to. Accordingly, I consider the most appropriate application of this provision is the area identified by Ms Gordan, which in this case includes some 4 -5 properties either side of the subject site, rather that the wider area preferred by Mr Mead, including beyond the end of the split road/retaining wall near No 42.

38. This application of the controls then shows that there is one in eight properties that have this form of parking i.e. 12.5%. Whilst there are some other forms of car parking, some with access to the rear, on the basis of the quantitative and qualitative considerations, I do not consider the proposal would represent the predominant form of parking in the street. In this regard, I think diminished weight should be given to the presentation to the northern properties because of their different character.

39. Whilst Mr Meads calculations indicate a larger number of on –site parking arrangements, they include different forms of parking, including those behind the building line in basement car parks that are permissible. I therefore do not consider it reasonable to give determinative weight to his calculations and assessment of the predominant form of on – site parking.

40. Insofar as the proposal involves the alteration to the front façade, I accept planner’s evidence that this can occur. Also that the parking area can be constructed in a way to present as a courtyard. But considering the different approaches of the planners to streetscape impacts, my assessment is that the streetscape assessment should be made on the basis of the standing vehicle within the setback area. Consequently, I agree that in this situation the vehicle parking would likely tend to dominate the front of the site. This outcome would not enhance or be neutral in the streetscape and consequently in my assessment would have an adverse impact the streetscape. In this regard I rely on Ms Gordan’s opinion.

41. As noted, the proposal requires consideration of the competing private and public interests arising from the loss of one car space due to the vehicular crossing to the proposed hard stand area. Considering the evidence that there is strong competition for the available on – street spaces because of the lack of on –site parking in the immediate area, I am persuaded to accept Ms Gordan’s opinion that the approval of this hard stand area would result in the loss of one on – street parking space which is a negative public interest outcome. In the circumstances, I consider it reasonable to give more weight to a positive public interest outcome, which contributes to the refusal of the application.

42. With regard to the precedent issue, Ms Gordan says that there are 3 other semi-detached dwellings in the immediate vicinity of the subject site whereby the approval of the current application could be used as precedence for further hard stand areas. Any such approvals would further erode the streetscape character. I have noted Mr Mead’s alternative view that any future applications would be considered on their merits. In the absence of any other actual applications of a similar nature, I give this contention diminished weight.

43. In summary, I consider this application should be refused because it does not demonstrate reasonable compliance with WDCP controls, particularly as the front car space is not the predominant form of parking in the immediate area and its approval would most likely adversely impact on the existing streetscape. In this regard I consider the extent of the streetscape is effectively confined by the split level of the frontage road and its practical enclosure at the steps near No 42. The conventional road alignment to the east of No 42 presents a different streetscape scenario in my opinion.

Court orders

44. The Court orders that:

1. The appeal is dismissed.

2. Development Application DA – 490/2014 for alterations to the front façade for a new hardstand space, landscaping, front fence and garden at 54 O’Donnell Street, North Bondi is refused.

3. The exhibits may be returned except 1, 4 and A.

_____________

R Hussey

Acting Commissioner of the Court

Decision last updated: 17 December 2015