Gruzman v Woollahra Municipal Council

[2008] NSWLEC 1487

Land and Environment Court

of New South Wales

CITATION:

Gruzman v Woollahra Municipal Council [2008] NSWLEC 1487

PARTIES:

APPLICANT
Adrian Michael Gruzman

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

10919 of 2008

CORAM:

Hussey C

KEY ISSUES:

Section 96 Modification :-

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995

DATES OF HEARING:

09/12/2008

 
DATE OF JUDGMENT: 

19 December 2008

LEGAL REPRESENTATIVES:

APPLICANT
Ms M-L Taylor, solicitor
of Bartier Perry Solicitors

RESPONDENT
Mr P. Rigg, solicitor
of Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

19 December 2008

10919 of 2008 A M Gruzman v Woollahra Municipal Council

JUDGMENT

Background

1 This appeal was lodged against the refusal of a Section 96 application to modify a development consent so as to allow a new vehicle access at 116 Ocean Street, Woollahra.

2 The site is a battleaxe shaped allotment, which has an 8.6m frontage to Ocean Street and its vehicular access from the rear lane off Thorne Street. There is a 2-storey house on the site, which has an outdoor area in the front adjacent to Ocean Street, a single carport at the rear of the property, together with a courtyard.

3 This property is part of a row of 5 townhouses, which front Ocean Street and were developed in the 1970’s. The surrounding neighbourhood contains a wide variety of housing styles and is characterised by a mix of 1, 2 and 3-storey dwelling houses with some residential flat buildings interspersed throughout the locality.

4 The approved development provided for a carport and car space at the rear of the property, accessed from the common driveway off Thorne Street. It incorporated a landscaped area adjacent to these car spaces. However, at present only the carport exists and the other car space has been converted for use in conjunction with the landscape area to form an attractive courtyard.

5 The issues identified for the appeal can be summarised as follows:

• Traffic and pedestrian safety.
• Compliance with the area conservation area controls
• Impact on trees.
• Public interest.

6 This proposal is alter the front landscape area to obtain direct vehicular access onto Ocean Street and involves the following works:

• The construction of a new vehicular crossing over the footpath onto Ocean Street.
• The construction of an above ground vehicular turntable.
• The construction of an adjacent parking area comprising porous pavers.
• A 1.8m high brush box front fence, incorporating a sliding gate.

7 The following planning controls are relevant:

• Woollahra LEP 1995; under which the property is in the Residential 2(a) zone and the proposal is permissible with consent, subject to reasonable compliance with the relevant aims and objectives in clause 2. Clause 2(2)(g)(ii) aims to ensure that new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items and their settings and of heritage conservation areas.
• Paddington DCP 1999; which contains a number of guidelines and controls relative to landscaping, fences and games, on-site vehicle parking, garages/carports and servicing facilities.
• DCP for off-street car parking provision and servicing facilities.
• Woollahra Access DCP.
• Paddington Heritage Conservation Area DCP 2008; the site is within this area and it contains restrictive controls on the insertion of additional vehicular crossovers to street frontages and the loss of traditional landscaping.

8 Detailed evidence was presented by:

• Ms E Smith; Council town planner.
• Mr F Rotta; Council’s traffic engineer.
• Mr M Nuestein; Consulting architect.
• Mr C Hallam; Traffic consultant.

9 The council submission opposing the modification is that it does not demonstrate sufficient regard to the current planning controls, which seek to restrict further front, driveway access points. Furthermore, that if additional on-site parking is required, it should be provided at the rear of the site, as originally approved.

Traffic issue

10 Following conferencing by the traffic experts, there was agreement that the proposed footpath crossing would incur the loss of 1 on-street space. Mr Hallam considers this is acceptable because it is offset by the new on-site space. However, Mr Rotta disagrees because the ‘nil net loss’ situation only occurs when the resident car is parked off-street, otherwise the general community is missing out on usage of this on-street space.

11 An associated issue concerns safety. As the adjacent footpath is approximately 2.2m wide and cars park kerb side, sight distance to approaching vehicles along Ocean Street is restricted. Consequently, this manoeuvre necessitates the vehicle parking on the footpath until a safe gap into the traffic stream on this busy road is available. However Mr Hallam does not consider this critical because of the low number of traffic movements (2.25 movements/day) from the property.

12 A further consequence of this traffic entry arrangement onto Ocean Street is the pedestrians will be blocked while the vehicle is waiting on the footpath. If they wish to proceed, the options are to walk on the road shoulder around parked cars, or pass around the back of the car and onto the private property. Mr Hallam considers this is an acceptable level of risk in view of the low volume of traffic entries. Against this, Mr Rotta considers that a reasonable number of pedestrians use this footpath on a regular basis and the need to walk onto the private property is unacceptable.

13 In resolving these disparate positions, I note that there are a number of relevant controls in the DCP. Section 5.2.6 deals with on-site parking on the basis of the following objectives:

• 02 To locate vehicle parking at the rear of properties, off laneways instead of along street frontages…
• 06 To retain sandstone kerbing along the streets and laneways.
• 07 To provide a balance between vehicle parking on sites, soft landscaping and useable open space.
• 09 To minimise vehicle and pedestrian conflicts.
• 010 To minimise traffic movement problems.

14 Considering the proposal in this planning context, I do not consider it demonstrates reasonable compliance with these objectives. Firstly, the controls prefer vehicle parking off laneways instead of street frontages. In this case rear laneway access is available and the 2 car parking spaces originally approved could be re-instated and achieve DCP compliance.

15 If the proposal is permitted, I am satisfied that it will introduce an undesirable traffic entry onto Ocean Street, which is a busy, relatively heavily trafficked road. Because of the narrow, kerb-side parking lane, sight distance to approaching traffic is restricted, thereby introducing an additional traffic risk that does not currently exist. I consider this a negative aspect of the proposal.

16 It also appears to me that this footpath is well used by pedestrians, particularly to access facilities at the Edgecliff centre. The car movement (albeit 2 – 4/day) still is likely to cause delays to some pedestrians, which may lead to them passing in front of the vehicle or behind the vehicle onto private property. In my assessment this introduces the potential for a new pedestrian conflict point that does not currently exist. Accordingly, I do not consider this is consistent with objective 09.

17 The proposal also enables vehicles returning to the property to make a right turn from Ocean Street, thereby slowing or stopping following traffic because there is no effective side, passing lane. This introduces a potential traffic conflict point that does not currently exist and I do not consider it is consistent with objective 010.

18 Obviously the proposal requires the removal of a section of the existing front sandstone kerb. Whilst, the applicant offers to return this to council for use in other places, I accept council’s submission that this is not the intention of the control to achieve the desired outcome of retaining the sandstone kerbing along the street.. Even though much of the sandstone kerb has been removed nearby, I nevertheless consider that this further removal would have a marginal detrimental impact on the streetscape in this heritage conservation area.

19 In conclusion, Mr Rotta said that the overall proposal would result in a negative traffic outcome, whereas Mr Hallam said it would be neutral/negative due to the low number of traffic movements. Taking into consideration that this is a s96 modification, I do not consider any compelling reasons of change of circumstances was made to merit setting aside the DCP controls. Instead, it seems that if 2 car spaces are required on-site, this can be achieved from the rear lane, with safer road entry conditions and pedestrian safety, which complies with the DCP provisions.

Planning considerations

20 Ms Smith agrees with Mr Rotta that the proposal is unsatisfactory. She relies on the complementary guidelines and controls in section 5.2.6 of the DCP as follows:

G1 Provision of on-site parking areas, parking structures and servicing areas such as loading facilities will not be a general requirement by Council and may not be permitted in certain circumstances. In addition to the circumstances listed in the following, guidelines controls on-site parking may not be required or may not be permitted for the following reasons:
• the parking of a vehicle will have a detrimental impact on the amenity of adjoining properties, the architectural character of a building, the character of a streetscape or laneway;
• vehicle entries and exits will have a detrimental impact on pedestrian movements or traffic movements; or
• inadequate sight distances will result in unsafe vehicle movement to or from the site.
G2 No further vehicle cross-overs are permitted off street frontages .

21 Accordingly, Ms Smith says that historically on-site parking in the Paddington Conservation Area has been concentrated on the rear of the properties and that the proposal would not be in keeping with the character of this conservation area, in particular the subject group of terraces (110-118 Ocean Street).

22 In supporting the application Mr Nuestein relies to some extent on the existence of other nearby driveways onto Ocean Street. However it appears some of these were approved prior to the current DCP being adopted. Also, those approvals at 120 and 122 Ocean Street are for a different building context where access was more apparently problematic for the older lots, as compared to the current planned estate, which specifically provided rear lane access and 2 on-site spaces for the subject land.

23 Mr Nuestein also considers the traffic and sight line impacts at the subject property are comparable to those at No 120 and 122 and that with a left-in/left-out only restriction, the traffic impacts would be acceptable.

Conclusions

24 Having considered the evidence, submissions and undertaken a view, I do not consider this modification application merits consent. It is apparent to me that the development controls are quite specific in restricting vehicle entries on the front streets and instead stipulating they are to be located at the rear of the properties.

25 Accordingly, I do not consider it reasonable to exercise any discretion available under the DCP controls in this situation where the subject property was part of a more recent development that included a complying rear access for 2 vehicles. In my assessment, no compelling change of circumstances was made to warrant the abandonment of the DCP section 5.2.6 controls.

26 Furthermore, I consider the approval of this crossing would increase the likelihood of traffic and pedestrian conflicts, considering the relatively busy status of Ocean Street, resulting in an overall negative traffic impact situation. The traffic flows limit entry opportunities and this is likely to cause pedestrian inconvenience on this busy pedestrian footpath. I accept Mr Rotta’s opinion that it is undesirable to inconvenience pedestrians with options of walking on the road shoulder or onto private property to pass in busy times.

27 In the ultimate, I do not consider this modification represents an appropriate balance between the private interest of obtaining 2 on-site spaces and enhanced courtyard and the public interest, which restricts the proposed front access to maintain reasonable traffic and pedestrian amenity and appropriate streetscape impacts in this Paddington Conservation Area. I consider the new crossing and fence opening would have a negative streetscape impact as stated by Ms Smith.

28 Consequently. I rely on the evidence of Mr Rotta and Ms Smith in refusing this application.

Court orders
1 The appeal is dismissed.
2 The s96 modification application for a new driveway and associated works at 116 Ocean Street, Woollahra is refused.
3 The exhibits may be returned except 3 and 4.

___________________

R Hussey
Commissioner of the Court
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