Jacob v Leichhardt Municipal Council

[2014] NSWLEC 1140

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jacob v Leichhardt Municipal Council [2014] NSWLEC 1140

Hearing dates:

14 July 2014

Decision date:

15 July 2014

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

1. The appeal is dismissed.

2. The development application for a single open parking space and new front fence at 1 Curtis Road, Balmain, is refused.

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

Catchwords:

DEVELOPMENT APPLICATION - open car space. Impact on setting of dwelling, streetscape and heritage conservation area

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Leichhardt Local Environmental Plan 2000

Category:

Principal judgment

Parties:

Jared Patrick Jacob (Applicant)

Leichhardt Municipal Council (Respondent)

Representation:

Ms J Reid of Wilshire Webb Staunton Beattie (Applicant)

Ms R McCulloch of Pikes Lawyers (Respondent)

File Number(s):

10315 of 2014

Judgment

1. This is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Leichhardt Municipal Council (council) of a development application for a single open parking space and new front fence at 1 Curtis Road, Balmain (site).

1. The key issue in dispute between the parties is the impact of the proposal the visual setting of the existing dwelling, the streetscape and the conservation area.

Site and locality

1. The site is located on the north eastern side of Curtis Road, near its intersection with Darling Street. It is rectangular in shape with a frontage of 7.325m to Curtis Road and an area of about 282sqm. The site is developed with a single storey 'inter war' detached brick dwelling which is set back from the front boundary. There dwelling is about five metres wide and built close to its boundary with 1A Curtis Road and set back with a pedestrian path from its other side boundary. The front setback area is mainly grass with a garden bed and a brick front fence in the same style as the house.

1. Adjoining development is a part one part two storey dwelling with a hardstand area forward of the building line (1A Curtis Road) and a two storey dwelling with a hardstand area for two cars forward of the building line (215A Darling Street). St Andrews Congregational Church is located opposite the site.

1. Development in Curtis Road is predominantly residential with a mix of one and two storey Victorian and early Federation dwellings with limited off street parking. Darling Street is the main commercial/retail strip.

The proposal

1. The proposal involves the provision of a four metre wide cross over and demolition of part of the existing brick fence and the provision of new entry automated swing and sliding gates to provide access to two permeable paving wheel tracks within the front setback of the house to provide off street parking for one car. The proposal does not involve the removal of any off street parking as due to the medium strip no parking is possible in front of the dwelling.

Planning framework

1. The site is zoned Residential under Leichhardt Local Environmental Plan 2000 (LEP) and the proposal is permissible with consent. The objectives for Housing in cl 17 include:

(d) to provide a diverse range of housing in terms of size, type, form, layout, location, affordability, and adaptability to accommodate the varied needs of the community, ...

1. The site is located within the Balmain Heritage Conservation Area (HCA) and is in the vicinity of items of environmental heritage, including St Andrews Church. Clause 15 of the LEP provides objectives for Heritage conservation and cl 16 includes provisions for conservation areas which require an assessment of the extent to which the development would affect the heritage significance of the conservation area.

1. Under Leichhardt Development Control Plan 2000 (DCP), the site is within Campbell Street Hill in the Mort Bay Distinctive Neighbourhood (Pt A10.6.5). The Desired Future Character for the area seeks to conserve the rhythm of the neighbourhood.

1. Part B 1.3 - Carparking and Part B 1.7 also apply to the proposal. The parties disagreed on the interpretation of the following control in Part B 1.3 which provides:

Where only front access is available, provide car parking areas (such as garages and carports) behind the main building alignment, (the front wall of the building)

1. Ms Reid, for the applicant, submits that Part B 1.3 applies only to structures that are forward of the building line and not to the proposal. Whereas, Ms McCulloch, for the council, submits that the control applies to 'car park areas' such as the proposal, not just to structures and that this is illustrated in the diagram that follows the control. I accept Ms McCulloch's interpretation and I have considered the application on this basis.

1. The application was lodged prior to the commencement of Leichhardt Local Environmental Plane 2013 (LEP 2013) which includes a savings clause. The parties agree that while LEP 2013 is a matter for consideration it does not include any provisions which are different, in substance, to those in the LEP under which the application must be assessed

Evidence

1. The matter commenced on site as a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) where Mr R Staas (heritage) and Ms G Slattery (planning), for the applicant, and Mr B McDonald (heritage and planning), for the council commented on the revised landscape plan prepared by Botanica (landscape plan) and their relative opinions outlined in their joint reports. The parties did not reach agreement and a hearing was held forthwith. The experts were not required for cross examination but the parties agreed that the site view and the experts discussion on site would be evidence in the proceedings.

1. In their Joint Report, Mr Staas and Mr McDonald agreed that the location of the site is a:

transition between the commercial buildings to the south east and the one and two storey 'period' style dwellings to the north west and is also characterised by the open landscape character of the Church site located opposite the site.

1. The experts also agreed that the landscape treatment of the front setback and the fence proposed in the Landscape Plan was acceptable. Mr McDonald's key concern was the removal of part of the existing fence, the width of the driveway opening and the impact that would result from a car being parked in front of and obscuring the dwelling. Ms McCulloch submits that Mr McDonald's opinion is summarised in the joint report as follows:

The parking controls do not support parking of vehicles forward of the front building alignment. This is the primary concern. The treatment of the actual parking surface, landscaping and gates cannot mitigate the visual impact of a parked vehicle in a small front garden. Although the property is narrow and the house small, the house and its complimentary fence contribute to the streetscape character of the conservation area. The greatest threat to preservation of the character of heritage conservation areas is cumulative adverse change. An argument is being made in support of the application that, because there are other examples of that which is proposed, the subject proposal is acceptable. This is exactly how cumulative changes erode the character and meaning of conservation areas.

1. In response, Mr Staas' opinion is:

The visual impact arising from this solution will be of a limited nature and will not substantially detract from any existing character in the streetscape or the potential to view the upper portion of the house as is currently the case with the examples to the north of this site.

The contribution made by the house is modest and the impact is not unacceptable for the context. A car in the front yard is arguably similar to a car parked in front of the property in streetscape terms, with the added benefit of partial screening created by the fence and the gates.

Findings

1. Part B.1.3 of the DCP does not support the provision of cars parking areas in front of the building alignment. The proposal does not comply with this requirement. The question before the Court is whether, despite the non compliance, the proposal meets the objectives (Principles) of the control which are:

Ensure that where on site car parking is required

the layout and design:

· respects the quality and integrity of the

streetscapes of Leichhardt; and

· is safe and efficient; and

· has regard to the layout, siting and use of

neighbouring buildings; and

· is integrated with the overall site and

building design.

1. There is no minimum car parking requirement in the DCP for dwellings. There was no dispute that the amended design would not be safe or efficient and that without a parked car, the proposal would meet the other objectives of the control. The key concern was the impact of the parked car on the presentation of the dwelling to the street and the consequent affect on its contribution to the HCA. Mr McDonald considered and I accept that the dwelling is a contributory item.

1. The frontage of the site is about 7.3m wide of which the driveway will occupy over half the length being 4m wide to provide adequate access from the street. The driveway crossing would adjoin the crossing at 1A Curtis Road. The house is about 5m wide and the location of the wheel strips and where the car will be situated is directly in front of the entry to the dwelling. The dwelling will be visible above and to the side of the car but it will impact on the presentation of the house to the street. I accept Mr McDonald's evidence that this will have negative impact on the contribution that the dwelling makes to the conservation area.

1. Ms Reid submits that the existing character for the Campbell Street Hill in the DCP is an 'eclectic mix' and that the site is located in what is agreed by the Heritage experts to be an area of transition with Darling Street and with an open character established by the Church and its grounds. The immediate context of the adjoining properties is also characterised by open car parking forward of the building line. Ms Reid submits that the carparking controls in Part B1.3 of the DCP, which apply to residential development in the whole municipality, need to be considered in the immediate context of the site and the constraints of the site itself, being narrow with no on street parking. In her submission, the evidence of Mr Staas and Ms Slattery should be preferred.

1. The site is narrow but this results in the presence of a car in the front setback area being potentially more dominant than it would be on a wider site, particularly if the car could be parked to the side of the dwelling. I acknowledge that the site has no on street parking and consequently there would be no net loss. Rather by providing a car space on site there would be one less car seeking parking in an area with a limited supply. The provision of on site parking would provide significant amenity to the owners of the dwelling and is supported by other residents. However, I do not accept that these positive aspects and the considered design of the development out way the concerns raised by Mr McDonald about the visual impact of a parked car in a small front garden in front of the dwelling.

1. Similarly the eclectic mix and transitional nature of the context does not justify a variation to the controls. The site is in a prominent location near the corner of Darling Street and the dwelling with a parked car would be visible from the opposite side of Curtis Road and Darling Street. The car park areas and their driveways on the adjoining properties, particularly the two spaces at 215A Darling Street, have a negative impact on the streetscape and are not sought to be emulated by the planning controls. While the proposal is clearly a significantly better design, an additional car parked in front of the dwelling would further impact on the street and the HCA. There are few other examples of car spaces in front of dwellings in Curtis Road, and those that exist were approved under earlier controls or form part of a recent dwelling.

1. The characteristics of the area and the constraints of the site do not justify the proposal which does not meet the control or the principles in Part B 1.3 of the DCP and will have an adverse impact on the HCA.

Orders

(1)   The appeal is dismissed.

(2)   The development application for a single open parking space and new front fence at 1 Curtis Road, Balmain, is refused.

(3)   The exhibits, except Exhibits 1 and A, may be returned.

Annelise Tuor

Commissioner of the Court

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Decision last updated: 16 July 2014