Gardner v City of Canada Bay Council
[2012] NSWLEC 1259
•13 September 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Gardner & Anor v City of Canada Bay Council [2012] NSWLEC 1259 Decision date: 13 September 2012 Jurisdiction: Class 1 Before: Morris C Decision: The parties are to submit agreed conditions that reflect the matters raised in this judgment, in particular those in [28]. Those conditions are to be provided in electronic format by 4pm Friday 14 September to allow the making of final orders.
Catchwords: Development application, carport within building alignment, whether consistent with council planning controls, impact on streetscape Legislation Cited: Land and Environment Court Act 1979; Canada Bay Local Environmental Plan 2008; Sydney Regional Environmental Plan (Sydney Harbour Catchment). Texts Cited: City of Canada Bay Development Control Plan 2008 Category: Principal judgment Parties: Joanne Gardner and Veronica Chapman (Applicants)
City of Canada Bay Council (Respondent)Representation: Ms V Chapman (Applicant) (Litigant in person)
Mr P Jackson Pikes & Verekers Lawyers (Respondent)
File Number(s): 10696 of 2012
Judgment
No. 7 Altona Street, Abbotsford is a long, narrow allotment containing a freestanding, single storey dwelling house. The narrow width of the site and the siting of the dwelling prevent vehicular access to the side and rear of the property and there is currently no driveway crossing serving the site. The applicants are seeking consent to erect a carport in the front building alignment of the site to provide new, off street parking. The council refused consent and the applicants are appealing the determination.
The appeal was subject to mandatory conciliation and arbitration on 12 September 2012, in accordance with the provisions of s 34 AA of the Land and Environment Court Act 1979 (the LEC Act). The conciliation conference commenced on site and the Court, in the company of the parties and their experts, conducted a view of the adjacent area and neighbouring properties.
During the conciliation phase, the council agreed that it would be appropriate to provide an uncovered parking space within the building alignment but maintained its position that the construction of the carport as proposed was contrary to its planning controls. As no agreement was reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with in an onsite hearing held forthwith pursuant to s 34AA(2)(b)(i) of the LEC Act.
The contentions in the case are whether the application complies with the council's planning controls, particularly in relation to streetscape, landscaping, design and layout and a concern in regard to the precedent any consent may cause.
Background and the proposal
Development Application No. 95/2012 was lodged with Canada Bay City Council on 15 March 2012 and sought consent to construct a 4.9 m x 2.9 m carport within the front setback area of the existing dwelling. The carport as indicated on the plans has dimensions of 4.9 m x 2.9 m and height to top of posts of 2.2 m and at ridge of approximately 3.25 m. During the conciliation phase it became apparent that the plans did not accurately reflect the intentions of the applicants and that was to match the gutter level of the carport to that of the existing cottage. That would either increase the height of the carport or reduce the extent of the carport eaves. The plans also show a concrete slab however, it was agreed during the conciliation conference, to reduce the extent of hardstand area, that concrete strips between artificial turf would be used. This would allow the reuse of the existing material in the garden area. The existing box hedges within the garden would be transplanted along the sides of the carport with gaps provided to facilitate access into and from the car.
The carport has been designed to coincide with the existing timber posts that support the front verandah. That location is approximately 2 m from the eastern and 2.4 m from the western property boundaries. It would extend to the front property boundary. Details of a proposed sliding gate system were also provided during the conciliation conference. This gate would reduce the length available for parking and it was agreed that an 85-percentile vehicle would overhang the front verandah, as insufficient area is available forward of the building to accommodate such a vehicle. An area 1.9 m wide is available between the existing brick piers that support the verandah posts.
The works require the removal of a street tree to facilitate access to the carport and also require the construction of a concrete layback within the road reserve. The applicant has offered to replace the street tree.
The site and its context
The site is located on the southern side of Altona Street to the east of Great North Road and has a frontage of 7.62 m, depth of 45.72 m and site area of 348.3 sq m. A single storey Federation style cottage is erected on the site. The cottage is single fronted with its entry door on the western side of the building and a narrow verandah runs across the front of the building. The cottage has been maintained to preserve the building's historical features.
A similarly designed cottage is located on the land to the immediate west of the site. A more recent brick dwelling is located to its east. Development in the remainder of Altona Street is varied, comprising a mix of single detached dwellings and multi-unit housing and buildings of different architectural styles and eras. There is one carport forward of the building alignment in Altona Street. All other sites provide parking to the side or rear of the dwelling or do not have any off street parking. A number of residential flat buildings are located in nearby streets including Abbotsford Parade.
A small neighbourhood shopping centre is located on Great North Road between Spring Street and Abbotsford Parade. This centre was inspected during the site view and it was noted that there are a number of restaurants within that centre without car parking. The applicants submit that one of the reasons they are seeking consent for the carpark is that at times it is not possible to park outside their property due to parking associated with these restaurants however no parking survey was tendered in the proceedings.
The planning controls
The site is zoned R3 - Medium Density Residential under Canada Bay Local Environmental Plan 2008 (the LEP). In addition, the provisions Sydney Regional Environmental Plan (Sydney Harbour Catchment) and its associated development control plan apply to the land however no contentions have been raised regarding that plan.
City of Canada Bay Development Control Plan 2008 (the DCP) provides more detailed planning controls to supplement those contained within the LEP. The General aims and objectives of the DCP (clause 1.5) are to:
1. Build upon the City of Canada Bay Local Environmental Plan by providing detailed objectives, and controls for development;
2. Foster ecologically sustainable development;
3. Ensure development responds to the qualities of the subject site;
4. Ensure development responds to the character of the surrounding neighbourhood;
5. Minimise negative impacts of development on the amenity of adjoining properties;
6. Encourage innovative housing, commercial and industrial design;
7. Maintain and enhance the natural, built and cultural significance of heritage items; and
8. Ensure future developments will provide for a community that considers the needs of all people who live, work and visit Canada Bay, including those people with disabilities.
Controls for houses and attached dual occupancies are contained in Part 5 of the DCP. In accordance with clause 5.4, All ancillary structures such as garages, carports, front fences and site facilities are to achieve compliance with the relevant objectives and controls.
Specific controls for parking and access are contained in clause 5.3.8 as follows:
The provision of car parking should reasonably satisfy the needs of current and future residents. New development should accommodate parking for visitors and residents within the site and minimise excavation.
Parking areas, driveways and garages should be carefully designed so they are safe, accessible and do not detract from the appearance of the streetscape.
Careful consideration should be given to the effect of the garage or
carports on the overall appearance of the building and streetscape.
In almost every case, garages and carports have a negative impact if constructed on or near the front boundary.
Council has identified preferred locations, at the rear, side and finally, at the front of a dwelling house for such structures.
In all cases, Council will consider the effect of a garage or carport on the overall appearance of a building, its setting and its environs. If the proposed new structure is likely to become a dominant feature, it may be better to opt instead for an open parking area or hard stand area.
The objectives of the control are:
O1 To provide off street parking for residents.
O2 To ensure vehicular and pedestrian safety.
03 To encourage the location of carports and garages behind the building line where possible.
O4 To ensure that car parking structures respect the character of the street.
O5 To ensure carports and garages etc are designed to be in sympathy with existing houses without becoming the dominant feature on the site.
O6 To limit the width of driveways depending on site frontage.
O7 To limit the number of garage doors to the street.
O8 To provide vehicle parking at the rear of properties and off laneways instead of along the street.
O9 To encourage the location of carports and garages behind the building line where possible.
The DCP recognises that not all sites have access to the side or rear and specific controls are included for carports in subclause C10 as follows:
Council may consider a carport forward of the front building
alignment where:
(a) It is a single carport with an external width of no more than 3.0 metres;
(b) The site is of a sufficient width that the carport will not obscure the existing building;
(c) The distance between the building and the front property boundary is a minimum of 5.5m;
(d) It is of a simple posted design, with no side panel infill; is not over elaborate in its decoration and colour and does not detract from the existing building;
(e) There is no solid panel lift or roller shutter door proposed;
(f) Does not significantly affect the landscaped front garden;
(g) Is within a varied streetscape that currently has carports forward of the building alignment;
(h) The roof is either flat or of a pitch that relates to the existing house;
(i) The views of the house from the public domain will not be adversely affected; and
(j) There is no rear lane access or side access of 2.6m or more.
The evidence
Expert evidence was heard from Mr K Mackay for the applicant and Mr C Hackett for the council.
The experts agree that the proposal fails to meet the requirements of cl5.3.8 of the DCP as there is not a 5.5 m setback between the building and the front property boundary. They also agree that the area available within the building alignment is of sufficient length to accommodate an 85-percentile vehicle, however, as stated in [6], that length would be reduced by the width of any gates installed to replace the existing front picket fence.
Mr Hackett says the siting of the proposed carport directly to the front of the dwelling would obscure views to the dwelling and its architectural features, become the dominant feature on the site and the projection of a vehicle into the verandah would have a negative impact upon the setting of the dwelling and create a potential for damage to the brickwork. These factors are contrary to Objective O5 of the DCP and controls C10(b), (c) and (i).
Mr Mackay says that, when viewed from directly in front of the site, the proposal will result in some minor obscuring of the higher positioned architectural detailing of the verandah and part of the dwelling's roof but considers the impact to be minor and that the carport would not become the dominant feature. He says the design of the carport is consistent with Objective O5 and control C10(h) as its roof pitch, proportions and proposed materials relate sympathetically to the existing house.
Mr Hackett says the erection of the carport would introduce a discordant element into the front setback, thereby adversely impacting the streetscape and overall character of the area. Mr Mackay says the streetscape is highly varied, is not within a heritage conservation area, the dwelling has not been designated as a heritage item and the R3 zoning contemplates more intense development than currently exists which will result in further modification to the existing character of the area and that whilst the proposal will result in a minor change to the existing streetscape that change is not unreasonable or particularly detrimental in the context of the existing varied character of the statutory controls for future development in the locality. Mr Hackett says the R3 zoning is not relevant and the application should be assessed on its impact on the existing dwelling and the wider streetscape.
With regard to precedent, Mr Mackay has cited a number of consents issued by the council for carports forward of a dwelling. Those consents relate to properties in Abbotsford (1), Five Dock (4), Russell Lea (2) and Drummoyne (1) and are for applications lodged between 2008 and 2012. Mr Hackett says that those approvals differ from this case as many of them were granted where there was an existing crossing into the site or where the driveway extends to the side of the dwelling and therefore the carport does not obscure the dwelling or the dwelling was elevated above the approved carport. No evidence was provided to the Court of approval of any application on a narrow allotment with similar dimensions to the site since the making of the DCP.
Mr Mackay says there are only four other properties in Altona Street that do not have off street parking or sufficient width to the side of the dwelling for vehicular access and the extent of any precedent would be limited to these four properties. Mr Jackson, for the council, submits that any consent would have a much wider impact and would apply to the whole of the City of Canada Bay rather than just to Altona Street.
It was agreed that the contention regarding site landscaping could be addressed through the provision of more information as to the extent of planting and paving proposed and the use of concrete strips rather than a slab.
Conclusion and findings
Having regard to the evidence, the site view and the planning controls, I am not satisfied that the construction of the carport as proposed would satisfy the objectives of the DCP. That is because of the constraints of the site, in particular its narrow width and the siting of the dwelling on the land. The DCP must be the focal point of my determination.
There is only one other carport forward of the building alignment in Altona Street and that is an obvious structure that is inconsistent with the streetscape. There is no evidence that the council has approved the structure. I am not satisfied that the development respects the character of the street. That character, whilst varied in architectural style, provides for consistent setbacks from the street.
I do consider that the carport has been well-designed and that it would be in sympathy with the existing dwelling however, due to the narrow site width I agree with the evidence of Mr Hackett that the carport would become the dominant feature of the site, would adversely affect views of the dwelling and is within a streetscape that does not have carports forward of the dwellings, noting that only one such structure exists. Accordingly, I accept the contentions of the council that the structure would be inconsistent with its planning controls. The evidence is that the council has consistently applied its controls.
I also accept the negotiated position of the council that the provision of on-site parking would be appropriate provided it was done in a manner which provided for the retention of landscaping and minimisation of sealed areas. The use of concrete strips for parking and the replanting of existing hedging would be appropriate, as would the reuse of the artificial turf between the parking strips. Such works would not detrimentally affect the streetscape. It is important that the existing street tree be replaced with an advanced species of a height that would not require continued reduction due to the presence of the overhead power poles. The selection of an appropriate species is an issue for the council. Subject to these controls and ensuring that the parking space can accommodate an 85-percentile vehicle, consent to the off-street parking space could be granted.
As the parties have provided conditions that reflect the application including the construction of a carport, it will be necessary that agreed consent conditions reflecting the alternate proposal as put forward during the conciliation phase are provided to the Court.
I therefore make the following directions:
(1) The parties are to submit agreed conditions that reflect the matters raised in this judgment, in particular those in [28]. Those conditions are to be provided in electronic format by 4pm Friday 14 September to allow the making of final orders.
__________________________
Sue Morris
Commissioner of the Court
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Decision last updated: 14 September 2012
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