Freer v Waverley Council - [2010] NSWLEC 1084

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Freer v Waverley Council [2010] NSWLEC 1084

PARTIES:
APPLICANT
Geoff Freer
RESPONDENT
Waverley Council

FILE NUMBER(S): 10059 of 2010

CORAM: Whelan AC

KEY ISSUES: DEVELOPMENT APPLICATION :- front building line - on-site parking space

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C

CASES CITED: Dickson Designs Pty Ltd v Waverley Council [2008] NSWLEC 1295
Emdur v Waverley Council [2009] NSWLEC 1101
Icon Building Services v Waverley Council [2007] NSWLEC 295
Levy v Waverley Municipal Council [2008] NSWLEC 1101
Lucas v Waverley Council [2009] NSWLEC 1390
McArthur v Waverley Council [2009] NSWLEC 1296
Quinton - Margalit Architects v Waverley Council [2008] NSWLEC 1389
Stockland Developments Pty Ltd v Manly Council [2004] NSWLEC 472
Zang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373

DATES OF HEARING: 26 March 2010

DATE OF JUDGMENT:
30 April 2010

LEGAL REPRESENTATIVES:
APPLICANT
Ms Susan Hill (solicitor)
SOLICITORS
Susan Hill & Associates
RESPONDENT
Mr Stephen Patterson (solicitor)
SOLICITOR
Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Whelan AC

30 April 2010

10059 of 2010 Freer v Waverley Council
JUDGMENT

1 ACTING COMMISSIONER: This is an appeal against Waverley Council’s refusal of development application No. 513/2009 under Section 79C of the Environmental Planning and Assessment Act1979.

Background

2 The site is located on the northern side of Birrell Street, Waverley, being just west of the Tamarama Street intersection. The land has a regular shape with a frontage of 6.22m and an area of 259.3m^2.The land is oriented north-south. The existing detached dwelling is one storey at the front and two storeys at the rear of the property. There are no current off-street parking facilities on the site. The surrounding development is typically semi-detached and free standing dwellings of one and two storeys.

3 The site is not listed as an item of heritage significance. It is not within a heritage conservation area or located within a residential character study area.

4 On 5 June 2008, Waverley Council granted consent to an earlier development application (DA 134/08) for alterations and additions to the dwelling, including a front fence.

The Proposal

5 The applicant sought consent for the construction of a new single hard stand car parking space at the front of the existing semi-detached dwelling.

6 The construction of the new single hard stand car parking space will utilise the area provided by: the partially demolished and modified front verandah; and demolition of a portion of the existing front fence. The proposal includes landscaping and the provision of a new driveway and cross over. The proposed hard stand car space will have dimensions of 2.59m in width and 5.52m in length.

7 On 19 November 2009, Waverley Council informed the Applicant, by notice of determination, that the proposal was refused.

8 The relevant statutory planning instruments applying to the subject site are:

Environmental Planning and Assessment Act

9 The relevant Development Control Plan applying to the subject site is:

10 The Respondent contends the following facts, matters and circumstances require or should cause the Court, in exercising the functions of the consent authority, to refuse the application or to impose certain conditions. The Council’s reasons for refusal are summarised as follows:

“ Waverley Local Environmental Plan 1996 (WLEP 1996)

1. The proposed development should be refused as the proposed hard stand is inconsistent with objective (b) of the Residential 2(a) zone under WLEP 1996 in that it will not maintain and improve the amenity and existing characteristics of the locality.

Particulars

(a) The proposed hard stand, which is sited directly on the street front and within the front setback zone, will unreasonably detract from the appearance and quality of the dwelling house and the existing streetscape;

(b) the proposal will result in a loss of on-street parking capacity for the exclusive benefit of one property; and

(c) the proposal will result in reduced pedestrian, cyclist and vehicular safety due to the lack of clear site lines for vehicles egress from the site due to the 1.8 m high front fence.

Waverley Development Control Plan 2006 (WDCP 2006)

2. The proposed development should be refused as the proposed hard stand is inconsistent with clause 5.7 of Part D1 of WDCP and clauses 5.1 and 5.2 of Part I1 of WDCP.

Particulars

(i) The proposal unreasonably detracts from the appearance and quality of the dwelling house and the streetscape;

(ii) the proposal does not maintain or improve pedestrian, vehicular and cyclist amenity on the street;

(b) the proposed hard stand is not located behind the front building line;

(c) the proposal results in further concreting of Council land; and

(i) the proposal provides for the partial conversion of an existing front fence and part of the dwelling for a parking space with dimensions of 2.59m in width x 5.52m in length;

(ii) the proposed length of the hardstand car space only conforms to the minium length requirement of 5.5m as a result of the already modified front verandah;

(iii) if the verandah was in its original condition there is only a 4.9m from yard setback which would result in the proposed car parking space being insufficient to allow for an 85 percentile vehicle to fit within this space and it is therefore likely that a parked vehicle will overhang Council’s nature strip and footpath;

(iv) the adjoining semi detached premises all have similar setbacks with their front verandahs generally intact;

11 The Respondent provides a table setting out the standard as required under the WDCP 2006, the relevant details of the proposal and whether or not compliance is satisfied:

Control

Standard

Proposed

Compliance

Vehicular Access
Parking

No. of spaces
Dimensions
(5.5 m x 2.5 m)
In front of building setback
Demolition of part of dwelling

1
5.52m x 2.59m

No.
Alterations
done previously

Yes
Yes

No

Yes

Landscaping

50% front lands
50% front soft lands

100%
85.5%

Yes
Yes

12 The Respondent states that the proposal does not comply with the vehicular access and parking controls in the DCP. The main objection being that:

“ The proposed hardstand is located forward of the building line, and is therefore not compliant with the DCP which states that: all parking accommodation is to be located behind the front building line”. Additionally, the DCP specifically states that “no part of the building is to be altered or demolished to primarily provide car parking except where topography or appropriate building design allows ”.

13 The Respondent further contends that in order to assess the significance of the non-compliance with the DCP controls, it is appropriate to consider the objectives of the “Vehicular Access and Parking” controls. These objectives are:

If the proposed off-street parking facilities or associated works will unreasonably detract from the appearance of the dwelling, streetscape or landscape, or from the heritage quality, or adversely impact on the pedestrian environment, or reduce the availability of on street car parking, a zero parking requirement may be imposed.

Note: The characteristics of some sites may mean that car parking should not be provided on site .”

14 The Respondent then considers these objectives and provides the following information:

“ With regard to objective (a), the hardstand is considered to unreasonably detract from the appearance of the dwelling, as the front yard which currently softens the dwelling’s appearance from the street will be replaced with a level paved space for a car.

With regard to objective (b), the introduction of an additional driveway crossing does not maximize pedestrian or vehicular safety.

With regards to objective (c), the hardstand space directly results in the loss of on-street parking capacity. On-street parking is essential on Birrell Street, and should be protected.

The application is considered to satisfy objective (d).

It is mentioned in the objectives that if the proposed parking will unreasonably detract from the appearance of the dwelling … or reduce the availability of on-street car parking, a zero parking requirement may be imposed. that is to say that the maximum car parking allowance (of 1 car space) is not an “as of right” control.

The Applicant’s Response

15 The Applicant’s expert Mr G Shiels, has qualifications in Urban Planning, Urban Design (Masters), Traffic Engineering and Urban Studies. His expert report provided the following response to the issues identified by Waverley Council.

16 In response to the proposition, “that the hard stand, within the front setback zone will unreasonably detract from the appearance and quality of the dwelling house and the existing streetscape”, Mr Shiels states that:

.

17 In regard to the proposition that “the proposal will result in a loss of on-street parking capacity for the exclusive benefit of one property”, Mr Shiels states that:

“There are currently three (3) Australian Standard on-street car parking spaces available between the no standing sign and the adjoining driveway to the west.

The proposal will not necessarily result in the loss of an on-street car parking space. In practical terms, the same amount of spaces will be available as the owners presently use a street space. However, it will result in the owners of the subject site being able to park in front of the dwelling. The owners have one (1) young child and another one due in July. Their daughter has special needs; she is blind in one eye which means she has little or no depth perception when exiting from a car on the street. I understand that she will never be able to judge the distance of cars, stationary or moving.

Shopping is a major is a major ordeal and frequently parking is not available on-street when returning from a shopping expedition. With young children, being able to park in the front area to unload shopping is highly desirable and creates a safer environment for children.”

18 In response to the proposition that “the proposal will result in reduced pedestrian, cyclist and vehicular safety due to the lack of clear site (sic) lines for vehicle egress from the site due to the 1.8m high front fence”, Mr Shiels states that:

“There are other dri v eways a n d carpo r ts in the immediate area. Indeed the r e are two (2) carports at Nos . 344 and 346 Birre ll Street, which adjoin the subject site to t he west. There ar e not any a ccident stat i st i cs tha t indicate that these vehicular crossings have ca u sed a p r oblem .

19 In response to the proposition that “the proposed development should be refused as the proposed hard stand is inconsistent with clause 5.7 of Part D1 of WDCP and clauses 5.2 and 5.2 of Part I1 of WDCP”, Mr Shiels states that:

“ Clauses 5.1, 5.2 and 5.7 of the Waverley DCP relate to the design of new developments. These clauses have little relevance to the current proposal, and those of some relevance are identified in Council’s Particulars .”

20 In response to the proposition that “the proposal does not satisfy objectives (a), (b) and (c) of cl.7 - Vehicular Access and Parking of Part D1 and the design considerations set out in cl. 5.1 of Part I1 in that: … the proposal unreasonably detracts from the appearance and quality of the dwelling house and the streetscape”, Mr Shiels states:

“....T he Court will observe that the appearance of the dwell i ng will remain la rge l y unchanged . ' Two (2 ) pe r meable wheel strips wil l be located in the f ront landscaped area and the fence w i ll be r econs tr uc t ed as a gate . The elevat i on prepa re d as part of t h e application l odged with Coun c i l in d icates to the Court that a v e h icle may be seen t hrough gap s in the proposed f ence. In my opin i on , th i s d oes not detract f rom the appea r ance o f the dwe l ling or the st r eetsc a pe.”

21 In response to the proposition that: “the proposal results in the loss of one full size on-street parking space for the gain of one private car”, Mr Shiels states that:

“ As indicated, the distance from the No Standing sign to the adjoining driveway is approximately 21.6m. T he Australian Standards recommended length for on-street car parking space varies between 5.4m (for end spaces) and between 6.0m and 6.6m, which provides for a total of three (3 ) car parking spaces in accordance with the Australian Standards.

22 In response to the proposition that “the proposed hard stand is not located behind the front building line” and.... the proposal results in further concreting of Council land”, Mr Shiels states that:

“The proposed hard stand will barely be visib l e from the street, particularly, when the gate is closed. The front area is grassed and permeab l e strips are proposed .

The proposed driveway does resu l t in additional concreting of the Council verge which will be paid for by the Applicant. I t does not result in the removal of any trees or landscaping. It is consistent with the streetscape and a common element in an urban area.

23 In response to the proposition that “the proposal does not comply with the strategies and controls set out in cl. 5.7.2 and 5.7.4 of Part D1 in that … the proposal provides for the partial conversion of an existing front fence and part of the dwelling for a parking space with dimensions of 2.59m in width x 5.52m in length”, Mr Shiels states that:

24 In response to the proposition that “the minimum dimensions are based on Australian Standards. An 85 percentile vehicle has a length of 4.910m and a width of 1.870m. The Australian Standard requires a parking space to be 5.5m to allow for the safe passage around tow bars and the safe opening of rear hatched/boots etc, and a passing space for a person at either the front or the rear of the car”, Mr Shiels states that:

25 The initial application to Council was for a “new single hard stand parking space”. This design was modified to be “the construction of two (2) permeable wheel strips”. The Applicant was informed and acknowledges and accepts this change.

Expert’s Summary

26 Mr Shiels summarised his evidence in the following way. The Applicant seeks to provide permeable wheel strips, in the grassed area, in front of the existing dwelling. Upon completion of the works the residue front yard will be retained as soft landscaping.

27 The existing approved front fence will be reconstructed in the form of a timber sliding gate, which will present a similar appearance to the existing fence.

28 The only real issue for consideration is that related to the “building line”. It is impossible to comply with Council Code in this matter.

29 Council’s WDCP 2006 at 1.4 states in part:

“The development controls may not normally be varied. However, if an applicant is able to clearly demonstrate that a particular control is unreasonable or unnecessary in the circumstances of the case, Council may consider relaxing the controls.”

30 Council’s WDCP 2006 at 5.7.4 identifies under the heading “Strategy” that

“ Design of off-street car-parking spaces and driveways allows efficient and easy access and does not endanger the safety of pedestrians .”

31 The corresponding “Control” states:

32 A plan prepared by Mr Shiels (Exhibit A) indicates that the space available in the front yard for parking measures 5.52m by 2.59m. The plan also records that the proposed driveway between the street alignment and the kerb is to be 3.0m wide.

33 Mr Shiels, in his capacity as a traffic expert, states that he has researched the history of “accidents involving either pedestrians or cyclists in the Waverley local government area”. He reported that no accidents are recorded in either field. He also reported that 84% of all vehicle types are below Australian Standard in respect of the length of the vehicle.

34 He further submits that Council should have no concern about the footpath vehicle crossing as concrete crossings are typical in the area and do not detract from the landscape. As to questions of safety when reversing out of the site, Mr Shiels states that the current approved front fence will be converted into a gate with openings between the timber slats to enable the driver to see pedestrians.

35 Mr Shiels is of the view that, in this matter, he is able to demonstrate that the control in respect of the “building line” is unreasonable or unnecessary in the circumstances and Council ought to have relaxed the control and so permitted the applicant’s submission that each case should be considered on its merits.

36 Council expressed concern that the proposal would result in an undesirable loss of on-street parking capacity within Birrell Street for the exclusive benefit of one property. Mr Shiels states that the loss of on-street parking is minimal. The net result is that one on-street space is lost and one on-site space is gained. His diagram indicates that four (4) spaces will be available in Birrell Street but these spaces will be slightly below the Australian Standard.

Findings

37 Mr Shiels was the only expert to give evidence in this case

38 While the Respondent initially objected to a “hardstand” area in the front yard for parking, the parties acknowledge that the modification to provide permeable wheel strips with soft landscaping is acceptable.

39 While the Respondent objected to an additional driveway crossing as it does not maximize pedestrian and vehicular safety, Mr Shiels was able to demonstrate that the modification of the front fence to a gate, with open slats, would allow the driver to have a view of the footpath and road thus providing for pedestrian and vehicular safety. He was also able to demonstrate that the proposal would not result in a net loss of on-street parking spaces.

40 I agree with the above expert opinion of Mr Shiels.

41 I also agree with Mr Shield that the only real issue for consideration is that related to the “building line”.

42 I am reminded that the decision-maker must take into account all relevant considerations. These are matters pursuant to Section 79C(1) of the Environmental Planning and Assessment Act1979 together with any development control plan that applies to the land to which the development application relates.

43 The DCP has to be considered as a “fundamental element in” or a “focal point” of the decision-making process: Zang v Canterbury City Council [2001] NSWCA 167.

44 The subject land is zoned Residential 2(a) under the DCP. Dwelling houses come under Part D1 and cl 1.4 sets out certain controls for dwelling houses:

“ The development controls may not normally be varied. However, if an applicant is able to clearly demonstrate that a particular control is unreasonable or unnecessary in the circumstances of the case, Council may consider relaxing the control. Conversely, having regard to the physical characteristics of the site and the nature and proximity of adjoining and nearby development, Council may require a more restrictive control so as to minimise or eliminate any likely negative impacts .”

45 I have considered the evidence and the need to focus on the fundamental elements of the DCP.

46 I have read all the nominated cases. This matter may be distinguished from others in that it does not contemplate changes to the dwelling. Other decisions have supported the principle that if a particular control is unreasonable or unnecessary in the circumstances, the control may be relaxed so as to permit vehicle parking within the site.

47 In the course of conducting the view, I observed many situations where garages, carports and hardstand car spaces have been constructed in front of the building line, a feature that is inconsistent with the DCP.

48 I conclude that the proposal to construct two permeable wheel strips for off street parking and converting the existing fence into a sliding gate should be approved on the basis that the control that seeks to restrict such development in front of the building line is unreasonable and unnecessary in the circumstances. I make the following orders:

Michael Whelan

Acting Commissioner of the Court

ANNEXURE “A”
Freer v Waverley Council

A. APPROVED DEVELOPMENT CONDITIONS

1. APPROVED DEVELOPMENT

(a) Architectural Plan/project No 0916, Dwg Nos W001 Issue B & W002 Issue A, prepared by nextspace , and received by Council on 25 September 2009, except where amended by the following conditions of consent;

(b) The Site Waste and Recycling Management Plan (SWRMP) and Checklist, in accordance with the SWRMP Checklist of Part G1, Waverley DCP 2006.

B. COMPLIANCE PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE

2. SECURITY DEPOSIT

A deposit or guarantee satisfactory to Council for the amount of $250 must be provided as security for the payment of the cost of making good any damage that may be caused to any Council property as a consequence of this building work.

3. NO BUILDING WORKS PRIOR TO RELEASE OF CONSTRUCTION CERTIFICATE

The building work, including demolition, must not be commenced until:

(a) a Construction Certificate has been obtained from Councilor an Accredited Certifier in accordance with Section 81 A(2) of the Environmental Planning & Assessment Act, 1979;

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Citations

Freer v Waverley Council [2010] NSWLEC 1084

Most Recent Citation

Vosoba v Waverley Council [2012] NSWLEC 1116

Cases Citing This Decision

1

Vosoba v Waverley Council [2012] NSWLEC 1116

Cases Cited

9

Statutory Material Cited

1

Zhang v Canterbury City Council [2001] NSWCA 167

Dickson Designs Pty Limited v Waverley Council [2008] NSWLEC 1295

Emdur v Waverley Council [2009] NSWLEC 1101

CITATION:	Freer v Waverley Council [2010] NSWLEC 1084
PARTIES:	APPLICANT Geoff Freer RESPONDENT Waverley Council
FILE NUMBER(S):	10059 of 2010
CORAM:	Whelan AC
KEY ISSUES:	DEVELOPMENT APPLICATION :- front building line - on-site parking space
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 79C
CASES CITED:	Dickson Designs Pty Ltd v Waverley Council [2008] NSWLEC 1295 Emdur v Waverley Council [2009] NSWLEC 1101 Icon Building Services v Waverley Council [2007] NSWLEC 295 Levy v Waverley Municipal Council [2008] NSWLEC 1101 Lucas v Waverley Council [2009] NSWLEC 1390 McArthur v Waverley Council [2009] NSWLEC 1296 Quinton - Margalit Architects v Waverley Council [2008] NSWLEC 1389 Stockland Developments Pty Ltd v Manly Council [2004] NSWLEC 472 Zang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373
DATES OF HEARING:	26 March 2010
DATE OF JUDGMENT:	30 April 2010
LEGAL REPRESENTATIVES:	APPLICANT Ms Susan Hill (solicitor) SOLICITORS Susan Hill & Associates RESPONDENT Mr Stephen Patterson (solicitor) SOLICITOR Wilshire Webb Staunton Beattie Lawyers