Kotronakis v Pittwater Council

[2015] NSWLEC 1508

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kotronakis v Pittwater Council [2015] NSWLEC 1508
Hearing dates:	14 October 2015
Date of orders:	04 December 2015
Decision date:	04 December 2015
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	1. The appeal is upheld. 2. Development Application No. 468/2014 for construction of two 3 bedroom apartments above an existing ground floor shop unit with parking for four vehicles on Lot 3, DP 226498, 66 Old Barrenjoey Road Avalon Beach, is approved subject to the conditions in Annexure A. 3. The exhibits are returned except for exhibits A, F, 3 and 4.
Catchwords:	DEVELOPMENT APPLICATION: Shop top housing - Construction of two 3 bedroom apartments above existing ground floor shop unit – Provision for parking - Precedent
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Pittwater Local Environmental Plan 2014
Cases Cited:	Auspacific Equity Investments Pty Ltd v Pittwater Council [2004] NSWLEC 281 BP Australia Ltd v Campbelltown City Council (1994) 83 LGRA 274 Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177 Goldin & Anor v Minister for Transport (2002) 121 LGERA 101 Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151 Zhang v Canterbury City Council [2001] NSWCA 167
Category:	Principal judgment
Parties:	Nick Kotronakis (Applicant) Pittwater Council (Respondent)
Representation:	Counsel: Mr M Staunton (Applicant) Mr S Nash (Respondent)   Solicitors: Mr T Sattler, Sattler & Associates Pty Ltd Ms E Gentle, King & Wood Mallesons (Respondent)
File Number(s):	10425 of 2015
Publication restriction:	Nil

Judgment

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal of Development Application No. 468/2014 for construction of two 3 bedroom apartments above an existing ground floor shop unit with parking for four vehicles on Lot 3, DP 226498, 66 Old Barrenjoey Road Avalon Beach (the site).

2. The site has street frontage to Old Barrenjoey Road, and access at the rear of the site from Edmund Hock Lane. The site is located in the Avalon Beach Village Centre and surrounding development is one and two storey retail, commercial and mixed use development; there are newer shop top housing schemes further to the south along Old Barrenjoey Road. To the east of the site on the eastern side of Edmund Hock Lane are residential flat buildings.

3. The existing development comprises a retail shop with floor area of 191sqm on the ground floor level of the existing single-storey building. The proposed development reduces the existing retail space by 41sqm to 151sqm on the ground floor, and adds two 3 bedroom residential apartments on a second and third storey above the retail shop. The area at the rear of the existing building accessed from Edmund Hock Lane is presently used for 2 car parking spaces for the retail premises; the proposed development would provide four carparking spaces for residents in tandem spaces in that area, and no parking for the continued retail use.

4. The appeal was the subject of a conciliation conference under s 34 of the Land and Environment Court Act 1979 on 17 July 2015. The parties did not reach agreement and the conciliation was terminated. The parties consented to my hearing and determining the appeal, and to evidence from the site view forming part of the evidence in the appeal.

Issues

5. There are two issues identified in the Council’s Amended Statement of Facts and Contentions (ex 4):

1. The proposal provides no carparking for the existing shop unit, contrary to the requirements of the Pittwater 21 Development Control Plan which requires 1 space per 30sqm of gross floor area (GFA), and which would require 5 carparking spaces to be provided; and

2. Precedent and cumulative impact of lack of carparking: granting consent to the proposed development would set a precedent that could be applied to a large number of other sites in the locality which when taken cumulatively would result in a significant and detrimental impact on the locality with regard to parking.

Planning controls

6. The site is in the B2 – Local Centre zone under the Pittwater Local Environmental Plan 2014 (the LEP). The aims of the LEP are stated in cl 1.2(2):

(a) to promote development in Pittwater that is economically, environmentally and socially sustainable,

(b) to ensure development is consistent with the desired character of Pittwater’s localities,

(c) to support a range of mixed-use centres that adequately provide for the needs of the Pittwater community,

(d) to retain and enhance land used for employment purposes that is needed to meet the economic and employment needs of the community both now and in the future,

(e) to improve access throughout Pittwater, facilitate the use of public transport and encourage walking and cycling,

(f) to encourage a range of housing in appropriate locations that provides for the needs of the community both now and in the future,

(g) to protect and enhance Pittwater’s natural environment and recreation areas,

(h) to conserve Pittwater’s European and Aboriginal heritage,

(i) to minimise risks to the community in areas subject to environmental hazards including climate change,

(j) to protect and promote the health and well-being of current and future residents of Pittwater.

7. The objectives of the B2 zone are:

• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To provide healthy, attractive, vibrant and safe local centres.

• To strengthen the role of centres as places of employment.

• To provide an active day and evening economy.

• To provide for residential uses above street level where they are compatible with the characteristics and uses of the site and its surroundings.

8. Development for the purposes of “shop top housing” is included in the list of development permissible with consent. That term is defined:

shop top housing means one or more dwellings located above ground floor retail premises or business premises.

Note. Shop top housing is a type of residential accommodation—see the definition of that term in this Dictionary.

9. The Pittwater 21 Development Control Plan (the DCP) applies. Section B General Controls includes Part B.6 Access and Parking. Part B6.6 provides for off-street parking requirements for a specified range of uses, which include “shop top housing” and “other development”. The Outcomes are:

An adequate number of parking and service spaces that meets the demands generated by the development.

Functional parking that minimises rainwater runoff and adverse visual or environmental impacts while maximising pedestrian and vehicle safety.

10. The Controls include:

On-site car parking requirements

The minimum number of vehicle parking and service spaces to be provided within the development site for new development and extensions to existing development is to comprise the total of the following:

• The total number of spaces as set out in Table 1 below.

• Plus the number of on-street parking spaces lost as a direct result of the development due to access and traffic facilities requirements.

…

Shop top housing

For retail and/or commercial patron parking is not to be restricted or obstructed (for example behind roller doors).

…

Residential parking

The following are applicable in respect of residential car parking areas:

…

• Tandem parking will only be permitted where it can be clearly demonstrated that vehicles so parked are directly associated to a single apartment and that such vehicles do not restrict or impede the parking, manoeuvring or access of other vehicles.

…

11. The relevant requirements for different development types specified in Table 1 are:

• Medium density housing (3 or more dwellings) and residential component of shop top housing:

1 bedroom: 1 per dwelling

2 bedroom or more: 2 per dwelling

Separate visitor parking:

1 per 3 dwellings rounded up

Provision for: garbage collection, removalist vans, and emergency vehicles

• Retail premises (not including shopping centre developments):

1 per 30sqm (GFA)

Parking spaces to be accessible to the public.

Adequate space for delivery vehicles.

Provision of accessible parking spaces for people with disabilities appropriately signposted must be at the rate of 3% of required car parking spaces or part thereof, minimum 1 space.

12. Provision is made for Variations, as follows:

Changes in Use

For change of use and developments within existing commercial centres consideration may be given to a variation to the minimum parking and service facilities requirements subject to the outcomes of this control being achieved and adequate justification being provided.

…

Off-set of On-site car parking requirements

Parking requirements may be offset by:

Contribution to a section 94 plan (where applicable) for car parking, or;

The provision of additional on-street parking facilities over and above existing provisions within the public road reserve or proposed road reserve (provided the additional on-street parking facilities can be accommodated within the road reserve adjacent to the site and not the detriment of the streetscape environment and authorisation provided by Council as the road authority under section 138 of the Roads Act 1993) and on the basis that the off-set of on-site car parking only applies to the visitor parking component of any residential development.

13. The DCP adopts all definitions in the LEP, and includes additional definitions (section A1.9). The term “other development” is defined by reference to a list of development not relevant in this appeal, “and includes any other land use or development not identified elsewhere in this DCP”. The additional definitions do not include a definition of “shop top housing”.

Evidence

14. Submissions were made on site by Ms Ros Marsh, President of the Avalon Palm Beach Business Chamber, and Mr Malcolm Long, resident of a residential flat building on Barrenjoey Road at the rear of the site. Ms Marsh’s submission raised concerns as to height, overdevelopment in the precinct, loss of village character, parking, garbage in the rear lane, and design. Mr Long raised concerns as to parking, height, overshadowing and noise.

15. Copies of written submissions made to the Council during its assessment of the application are at tab E of the Council’s bundle of documents (ex 1). Those submissions raised concerns similar to those raised on site, including the height of the proposed development, overshadowing, impact of traffic including on Edmund Hock Lane, reduction in customer parking because of shop top housing in the village, parking issues in Avalon village centre, and inconsistency with a beachside village shopping style.

16. Expert evidence was provided on behalf of the applicant by Mr Ross Fleming (town planning) and Mr John Coady (traffic engineering), and on behalf of the Council by Ms Gina Hay (town planning) and Mr Tim Rogers (traffic engineering). The experts conferenced and provided a joint report (ex 2), and gave oral evidence.

17. In their joint report the experts agreed that based on floorspace area and building function the proposed development would require 10 parking spaces, being 5 retail spaces for 150sqm floor area at the rate of 1 space per 30sqm; 4 residential spaces, for two 3 bedroom units requiring 2 spaces each; and one visitor space (rounded up). They agreed that in the 1950s land was dedicated along the Old Barrenjoey Road frontage for parking (2.5 spaces), and that therefore the site has a credit for 2.5 spaces; that means that the site has a shortfall of 3.5 spaces if the resident visitor parking requirement is rounded up to 1 space (ex 2, paras 2.3-2.5).

18. Mr Coady prepared a Traffic and Parking Assessment (5 December 2013) to accompany the development application (ex D). The Traffic and Parking Assessment stated that the proposed alterations and additions reduce the existing retail floorspace on the ground floor and increase the building yield of the site by 2 x 3 bedroom residential apartments, and in those circumstances the only additional demand generated by the proposed alterations and additions concerns the two new residential apartments. At the time the existing building was constructed there was no requirement for on-site parking; and there is an abundance of parking available in the parallel and 90 degree parking spaces and the large public carparks on the corner of Avalon Parade and Bellevue Avenue and off the northern end of Old Barrenjoey Road. Although vehicles park informally in the area at the rear of the building, parking in this location is not suitable for customers of the existing retail shop who park in the on-street parking spaces or public carparks, and this will continue because no change is proposed to the retail floorspace on the site. There is no space on the site to accommodate a visitor parking space, and accommodating that visitor parking requirement on-street or in a public carpark would be satisfactory and appropriate in the circumstances. The Traffic and Parking Assessment concluded that the traffic generated by the two residential apartments, which was the only additional traffic generation potential of the site, is a minor traffic generation potential.

19. Mr Rogers undertook a survey of existing parking supply and demand on Thursday 10 September 2015 (ex 2, Appendix A) and found that parking in Avalon was at practical capacity during the middle of the day, with 529 spaces and 501 occupied, a 95% occupancy rate. He acknowledged that this was a limited survey and did not include peak times such as weekends and holidays; the purpose was not to provide a comprehensive analysis of parking conditions in Avalon, but rather a snapshot of the parking situation outside of peak periods (ex 2, para 3.2). In his opinion any shortfall in on-site parking would increase demand for on-street parking in an area where parking is at practical capacity (ex 2, para 3.3).

20. Mr Coady did not agree. He was of the opinion that to the extent that there is a shortfall in on-site parking, that shortfall comprises provision for workforce parking generated by the small shop, and because of the size of that shop it is unlikely to exceed one parking space which will need to be accommodated elsewhere, most likely on-street in the fringe area of the village centre where timed parking restrictions do not apply. The street most likely to be used for workforce parking is Bellevue Avenue, and the member of the workforce would simply drive along Bellevue Avenue until they find one of the vacant spaces there. Mr Rogers’ survey did not commence until 10.30am, when on-street parking accumulations in Bellevue Avenue between Avalon Parade and Sanders Lane were only 78%, and on-street parking accumulations would be lower in the morning when under normal circumstances a member of the workforce might be expected to be searching of an on-street parking space (ex 2, para 5.2).

21. In Appendix B to the joint report Mr Coady provided a Parking Schedule, from which he concluded that there is no parking shortfall. Mr Coady’s reasoning (ex 2, paras 5.6-5.15) was as follows. The only evidence of the parking requirement imposed on the existing retail shop at the time of the original development was a contribution in lieu of 2.5 parking spaces in the form of dedication of a 6.1m strip of land along the frontage of the site, and while there is space at the rear, in the absence of any evidence of a requirement for that to be provided it should not be included, so the parking requirement imposed on the operation of the existing shop is 2.5 spaces. As calculated in the DCP, the parking requirement for the existing shop is 6.4 spaces, and so the existing shortfall is 1.9-3.9 spaces depending on whether the existing 2 spaces at the rear are included; because on-site parking provision was not a requirement imposed at the time of initial development, the shortfall calculated in accordance with the current version of the DCP is 3.9 spaces. The calculation for the proposed development is 9.7 spaces, being 5 for the shop, 4 for the 2 apartments, and 0.7 for a visitor (rounded up to 1); so that the appropriate parking requirement for the proposed development is 9.7 spaces. The proposed development will be served by 6.5 spaces, being the 2.5 spaces provided by dedication of land, and 4 tandem spaces at the rear of the shop. The shortfall is 3.2 spaces (or 3.5 spaces if the resident visitor parking requirement is rounded up).

22. In Mr Coady’s opinion it is appropriate to take into account the shortfall in the parking requirement imposed on the existing shop compared to the requirement for that shop calculated in accordance with the DCP in order to calculate the shortfall, because the subject application is for alterations and additions to the existing retail shop on the site and not for a redevelopment of the site; to ignore the parking shortfall of the existing development would pretend that it does not exist, and that would not be commonsense; and in circumstances where the application is merely for alterations and additions to an existing site development it is inequitable to require today’s applicant to bear the burden of any deficiency created by approval of the existing development of many years ago, so that today’s applicant should be responsible only for the additional parking demand that the development application generates particularly given the relatively small scale of the proposed development. That approach requires that any shortfall in the parking provision for the existing site development (which he concluded was 3.9) should offset the shortfall in the parking provision for the proposed development (which he concluded was 3.2).

23. Notwithstanding his conclusion that there is no numerical shortfall, Mr Coady accepted that the proposed development makes no provision for workforce parking generated by the retail shop, because the 2.5 spaces provided as an in lieu contribution are now subject to a 2 hour parking restriction during business hours making them unsuitable to accommodate normal workforce parking demand: those spaces can accommodate resident visitor demand; and the 4 tandem spaces at the rear are allocated for resident parking (ex 2, para 5.17). It is not necessary to make specific provision for workforce parking because of the small size of the shop, so demand is unlikely to exceed one parking space; reducing workforce parking provision is an appropriate measure to reduce parking demand in commercial centres and is part of a sustainable parking policy; and the additional parking demand is not likely to exceed one parking space, which would not provide adequate or appropriate grounds for refusal of consent (ex 2, para 5.18).

24. In oral evidence Mr Coady agreed that he had not undertaken an analysis of parking for the retail component of the proposed development; he did not see this as essential as he has visited and had no problem getting a space in Old Barrenjoey Road. He would not ordinarily conduct a survey if the issue is about one parking space, and he was considering the residential component of the proposed development. There is no parking shortfall for the retail, and in fact it is in credit because of the reduction in GFA; there is no increase in the retail and so no need to provide parking in addition to what was required in the first place.

25. Mr Rogers stated that he had done a survey because the residents had raised the issue of parking and he wanted to understand that issue. His survey was a snapshot, and shows that even in a non-peak period there is high demand for parking in the town centre. Once you are at an occupancy level of 95%, people will circulate to find parking. He considered that as a result of the proposed development the loss of the existing two spaces at the rear will mean displacement to the surrounding area. Mr Rogers did not consider that there is adequate justification for a variation in the parking requirements of the DCP. There would be displacement of parking into an area of existing high demand. Mr Rogers agreed that if there is no requirement for resident visitor parking, there would be a reduction in parking requirement of 1.6, and with the loss of two spaces at the rear the shortfall is 0.6.

14. Ms Hay considered that the space at the rear of the site could be used for 2 parking spaces which, while in all probability would be used by staff, could be used by customers if parking for a longer timeframe than the street parking; as part of the proposed development those spaces would be lost and parking displaced into the surrounding streets (ex 2, para 3.4). Ms Hay considered that the proposed development would set an undesirable precedent as there are a number of other shops along Old Barrenjoey Road that could develop in a similar manner; the cumulative impact of such development would be severe and would further exacerbate the existing constrained parking situation (ex 2, para 3.5). The only way to achieve parking compliance is to reduce the number of dwellings proposed to one; a single apartment would require two spaces which would permit the shop to retain two existing spaces, which would ensure that the existing parking situation is maintained and not made worse despite the intensification of the site (ex 2, para 3.7).

15. In his contribution to the joint report Mr Fleming referred to a consent granted by the Council for the adjoining site at 64 Old Barrenjoey Road (DA N0718/10) which in effect doubled the commercial floorspace with the requirement for off-street parking assessed solely on the provision of additional first floor space as proposed, and not on the totality of the floorspace proposed; and to a consent granted for 49 Old Barrenjoey Road (DA N0466/14) involving the gutting of a former bank building and refurbishment for ground floor retail and mezzanine commercial space with no provision for off street parking, on the basis that there was no additional floorspace. In both those instances the ground floor levels were adjusted or refurbished to accord with current flood planning levels. In his opinion those decisions contradict the approach to the present application of assessing the totality of the floorspace involved as opposed to an assessment of the additional floorspace involved (ex 2, para 4.2). Mr Fleming considered that the Council’s practice in consideration and determination of applications in the Avalon commercial centre lacks consistency and clarity in the interpretation and implementation of the DCP. Mr Fleming did not consider that any precedent would be created: this is a form of development permitted by the zoning; any future development proposed on similar lot sizes would be the subject of consideration of a development application; and there is no detail of the precedent involved in terms of the number of sites and the likelihood and opportunity for those sites to be developed (ex 2, para 4.6).

16. In oral evidence Ms Hay stated that she did not consider the 2.5 spaces achieved through the dedication of land to be sufficient because those spaces are timed at one hour; she accepted that her agreement that there should be a credit for 2.5 spaces is not based on the DCP, but on an application of planning principles. Ms Hay accepted that the present use of the area at the rear of the site for parking is not pursuant to any enforceable obligation, and that the applicant could cease doing so. Ms Hay agreed that the consent for 64 Old Barrenjoey Road was to change a “retail” use to a “commercial” use and add a top floor, however she could not recall the detail of the GFA. Ms Hay agreed there is a shortfall of 3-4 spaces for that development, and accepted that the Council approval is consistent with the application of the DCP to permit a credit for existing development. On her understanding there was no increase in GFA for 49 Old Barrenjoey Road.

17. Ms Hay accepted that these consents reflect an inconsistent approach to the DCP requirements. Ms Hay accepted that the proposed development complies with all other requirements, and that there is no opportunity to provide additional parking on the site because of flooding. Avalon is an outer suburb, serviced by 1 or 2 bus routes, and if there is no parking people would still drive but park in residential streets. Few workers would use public transport because it is not adequate, and they would displace other parking. Ms Hay considered that while in some circumstances it would be appropriate to give a credit for the existing shortfall, as with the consent for 64 Old Barrenjoey Road, it is not appropriate in the circumstances of this application.

18. Documents relating to the consents granted for 64 Old Barrenjoey Road and 49 Old Barrenjoey Road, referred to by the experts, are in evidence (ex E, tabs 10, 11). The consent for 64 Old Barrenjoey Road was for alterations and additions to existing commercial premises including a new first floor and use of the building as a real estate agency; the Statement of Environmental Effects states that there was a “detached metal car port” at the rear (p27); and four car parking spaces in a tandem formation were proposed (p 28). The accompanying Traffic and Parking Assessment calculated the parking requirement for the additional floor area provided by the proposed alterations and additions to be 3.8 spaces, rounded up to four, applying the DCP requirement of 2.5 spaces per 100sqm GLA for commercial premises, to be allocated to workforce parking (p 53). The consent for 49 Old Barrenjoey Road approved alterations and additions to an existing commercial premises (the former Westpac building) to create four ground level retail and restaurant tenancies and one upper level office tenancy. The Statement of Environmental Effects stated that the existing use generated a parking requirement of 16 spaces, and the proposed use also generated a requirement of 16 spaces, and concluded that “the proposed change of use will have no impact on the parking requirements for the development” (p 91).

Consideration

31. The applicant submits that the application is consistent with the objectives of the aim of the LEP and the objectives of the B2 zone. The application is for “shop top housing” which as defined is concerned with the residential component of the development. Even if that is not correct, the application is to change the “retail” use to “shop top housing” and as a consequence the relevant provisions in the DCP are those relating to variations, and the requirement in the DCP is for “adequate” parking. The existing retail space is not being demolished and so the application should be considered as “alterations and additions”. The Council’s real concern is the absence of parking for the retail use, however that is not correct as there has been a dedication of land which provides 2.5 on-street parking spaces. There is no record of any other parking requirement in the Warringah Council records, which confirm that that council’s policy to deal with parking was by dedication of the land. Even if it be assumed that there was a requirement for the 2 spaces at the rear, the reduction in parking spaces is 1.4 which results in a shortfall of 0.6. Section B6.6 of the DCP requires consideration of what is the parking demand generated by the proposed development: in this instance the shop will continue, and generates a demand of 0.6; and there is no expert assertion that there is an unacceptable impact on the locality for that shortfall in parking. If parking is displaced it is likely it will go to unrestricted areas which are residential, whereas the objections have come from occupants of the units in close proximity to the town centre. Mr Coady’s assessment is that there is no additional demand. In terms of precedent, while the Council has raised that contention, the opinion expressed in the joint report is not supported by any evidence before the Court. In the circumstances of this application there is no development consent requiring parking at the rear, and a reduction in retail GFA which reduces demand; there has been dedication of land; no issue with visitor parking; and no evidence that there are other properties in similar circumstances. The examples of 64 Old Barrenjoey Road and 49 Old Barrenjoey Road demonstrate a proper and appropriate application of the DCP. The matters raised by the objectors were raised in submissions to the Council and were assessed by the Council in its report under s 79C of the Act.

32. The Council submits that the application is not for “alterations and additions” or for extensions or for a residential use, but for “shop top housing”, and that is the basis on which the application must be assessed. Without the retail component the residential addition would not be permissible, and so the development must embrace and rely upon the retail use because that is a critical component. The assessment of parking for the retail use on the basis that it has been reduced from 191sqm to 150sqm is that the requirement is reduced by one space. The development, which is for shop top housing, requires an “adequate” number of spaces; and Table 1 dissects the components into residential and retail, with the variation provisions. Only the residential component has been considered in this application, and the retail component has only been considered to the extent that there is a reduction in GFA. The history is a distraction, because on the applicant’s case, while the development is shop top housing, the retail component has not been assessed. The development requires 9-10 spaces, and there is an agreed allowance for 2.5 spaces. In 1956 the Council was conscious of the need to provide parking. As a practical matter the existing 2 spaces at the rear should be considered even if there was no requirement initially to provide them. The emphasis on a credit of 2.5 spaces and the history does not assist in undertaking an assessment in 2015. There is no provision for retail parking other than those 2.5 spaces, and no parking study provided for any retail space. Mr Rogers’ survey was never intended to be detailed and it is for the applicant to undertake a parking survey for the shop top housing proposal. The proposed development does not meet the requirements either on a numerical basis or by meeting the outcomes. The Council acknowledges that addition of one dwelling would be acceptable. The loss of 2 spaces at the rear and no provision of retail spaces is not acceptable on planning grounds, as the only outcome is displacement to surrounding streets, and the attempt to rely on the 1950s is not relevant to the panning assessment. The determinations for 64 and 49 Old Barrenjoey Road do not demonstrate abandonment of the DCP requirements, as 64 Old Barrenjoey Road was an extension of an existing use while for 49 Old Barrenjoey Road no additional floorspace was proposed.

Provision of parking

33. It was common ground that at the time of construction of the existing building there was no requirement for the provision of off-street parking. It was common ground that basement carparking including stacked carparking is not practicable because the site is flood prone.

34. The first issue raised in the Council’s contentions requires consideration of the provisions of part B6.6 of the DCP, there being no relevant parking requirement in the LEP. In the context of this application, part B6.6 of the DCP sets out numerical standards for determining parking requirements for specified forms of development (Table 1), with provision for Variations in specified circumstances. The objective of these provisions is stated in the Outcomes as “an adequate number of parking and service spaces that meets the demands generated by the development”.

35. In Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151 Moore AJ noted (at [61]) the guidance as to consideration of provisions of a DCP by the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167, in the form of three propositions: that while the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered; that the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly if there are no issues relating to compliance with a local environmental plan; and that a provision of a DCP directly pertinent to an application is entitled to significant weight in the decision-making process, but is not in itself determinative. Moore AJ went on to consider s 79C(3A) of the Act, noting (at [68]) that its effect mandated taking a flexible approach to the matters subject to dispute between the parties in that appeal, and (at [69]) that this provision modifies the position that has been followed since Zhang, so that the issue was whether the primary objective of the relevant numerical requirement could be achieved on the approach adopted by the development proponents.

36. Section 79C(3A) provides:

(3A) Development control plans

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

37. The task is to determine how the provisions of the DCP, which is a mandatory relevant consideration under s 79C(1)(a)(iii) of the Act, should be applied to the development the subject of this appeal. If, on the application of the numerical standards, there is a shortfall in the number of parking spaces provided, Zhang would not require refusal simply because of that shortfall. Section 79C(3A)(b) would require a flexible application of those standards, allowing reasonable alternative solutions that would achieve the objects of the relevant standards.

38. It was common ground that while the DCP would require that residential component of shop top housing provide separate visitor parking at the rate of 1 per 3 dwellings rounded up, that is, 0.7 spaces rounded up to 1 space, the provision of timed on-street parking means that visitor parking is not required.

39. The experts agreed, and the Council accepts, that the dedication of land on Old Barrenjoey Road in 1956 (ex E, tab 2) provides a credit for 2.5 parking spaces. The dedication of land in front of the site and further along Old Barrenjoey Road reflected Warringah Council policy, identified in a council Town Planning Committee report of 1956 (ex 2, tab 6) to establish “attractive neighbourhood shopping groups in which provision has been made for off pavement angle parking by the dedication of at least 20 feet wide strip in front of the shops to Council for road widening” (ex 2, p 15). That report continues (p 16):

Council is very conscious of the necessity for providing the greatest possible area for parking and is approaching the problem along the following lines:

(1) In new shopping precincts by insisting on the owner dedicating a 20 feet wide strip, which Council constructs as a parking bay.

(2) In existing shopping areas by widening the existing pavement as far as possible.

(3) At points of concentration, such as beaches, resorts, etc, by acquisition, reclamation or treatment of such areas as are available.

(4) At other points of concentration, such as hotels, clubs, churches, etc by insisting, as far as possible, on the provision of suitable parking areas.

40. There was debate between the experts as to whether this was an acknowledgement that there was at that time a problem with parking; based on the discussion in the report it reflects at least a concern that in the absence of a rail link there would need to be parking provided in the areas identified. The DCP provides for Variations in the form of an off-set for on-site car parking requirements (paragraph [12] above), recognising an offset for parking requirements for a contribution to a s 94 plan for car parking, or provision of additional on-street parking facilities over and above existing provisions. While there is no applicable s 94 contributions plan, and the dedication of land in 1956 was not linked to any particular demand such as the visitor parking component of a residential development, the agreed approach of applying a credit for 2.5 spaces for the dedicated land in recognition of the historical dedication for provision of additional on-street parking facilities is analogous to, and consistent with, the approach adopted by the DCP. I accept that agreed approach.

41. The experts disagreed as to whether the proposed development should be regarded as “new” development or extensions, or as alterations and additions, for the purposes of calculation of parking requirements. Mr Fleming and Mr Coady were of the opinion that it is “alterations and additions”; Ms Hay and Mr Rogers disagreed. In my view it is artificial to have regard only to the residential component of the proposed development, as submitted by the applicant. The proposed development is permissible as “shop top housing”, which, as defined in the LEP (and thus for the DCP), is a form of development that incorporates both a residential component and a ground floor commercial or retail component. That is one of the identified uses to which the controls in part B6.6 apply. Table 1 applies to “new development and extensions to existing development”, and addresses the requirements for the residential component of shop top housing, and distinguishes between business and office premises (2.5 per 100sqm GFA), and retail premises (1 per 30sqm GFA). While the existing building is not being demolished (as was the situation in Auspacific Equity Investments Pty Ltd v Pittwater Council [2004] NSWLEC 281), and a (smaller) retail component is to be retained in the existing ground floor building, the carrying out of the development as proposed will result in a new use for the site, as “shop top housing” which incorporates both a retail and a residential use. The proposed development involves a substantial extension to the existing building, to create the two additional storeys. The reference in the DCP to “new” development may be intended to apply to development of a vacant site or redevelopment of a site where existing structures are to be demolished; if on that reading of the DCP the proposed development is not “new” development, in the construction of two additional storeys it is “extensions” to existing development; and accordingly, Table 1 is the starting point for determination of the number of parking spaces required.

42. Applying Table 1 in its terms, the proposed development requires 4 residential car spaces for 2 dwellings of three bedrooms, and 5 retail spaces for 150sqm GFA, a total of 9 spaces. I accept the agreed position that in the circumstances there is no requirement to provide parking on-site for resident visitors; the proposed development provides the 4 spaces required for the residential component; and is short by 2.5 spaces for the retail component once the credit for 2.5 spaces is applied. The requirement for 1 space per 30sqm GFA is not separated into workforce or customer requirements; the requirement that parking spaces must be accessible to the public would suggest that some provision for customers is intended. I accept the agreed position that the on-street parking provided through the dedication of land in 1956 is appropriate for retail customers; the issue is, therefore, the provision of parking for the retail workforce.

43. Mr Coady’s analysis proceeded by reference to a calculation of the shortfall of the parking requirement imposed on the existing shop at the time of its initial development, compared to the parking requirement calculated for that use under the DCP. In his opinion that shortfall should be taken into account, because the application is for alterations and additions to the existing retail shop on the site and not for a redevelopment of the site; to ignore the parking shortfall of the existing development would not be commonsense; and today’s applicant should be responsible only for the additional parking demand that the development application generates. None of those factors are expressed in the DCP. Table 1 requires a focus on the type of use, and scale, of the development the subject of the application. While in assessing applications for other sites the Council may have determined parking requirements by reference to the additional floorspace, as appears to have been the case for 64 Old Barrenjoey Road, that has no basis in the DCP controls. Applying those controls, there is a shortfall of 2.5 spaces for the retail use of the site.

40. If, however, it is appropriate to have regard to the existing shortfall of parking spaces, applying the DCP the existing retail use at 191sqm would require 6.4 spaces; with a credit of 2.5 spaces the existing shortfall is 3.9 spaces. However, if the existing shortfall is to be taken into account, then the loss of the existing 2 spaces at the rear should also be taken into account. While it can be accepted that the parking requirement for the retail use is reduced because of the reduction in GFA, and there is no additional retail demand generated, a practical consequence of the carrying out of the proposed development would be the removal of the 2 parking spaces presently available for that use, whether or not there was ever a requirement for those spaces to be provided on the site when first approved some 50 years ago.

41. While specifying numerical standards, the DCP provides for flexibility in application. Two of the four circumstances for Variations are quoted at paragraph [12] above. The second, being offsets for parking requirements, is applied in this instance by analogy in the form of the agreed credit for 2.5 spaces. The first permits consideration of a variation to the minimum requirements, for “change of use and developments within existing commercial centres”, both of which are applicable in this application. However, the scope for variation is qualified, first, “subject to the outcomes of this control” being achieved, and secondly, “adequate justification being provided”.

42. The issue is whether an “adequate” number of parking spaces are proposed to be provided, and whether “adequate justification” has been provided for the shortfall of 2.5 spaces for the retained retail use. In his contribution to the joint report Mr Coady accepted that the proposed development makes no provision for workforce parking generated by the retail shop. The Traffic and Parking Assessment provided with the development application (ex D) did not include any assessment of workforce parking requirements. The only evidence quantifying parking demand and availability is the parking survey undertaken by Mr Rogers, which he accepted was a snapshot, and which shows an occupancy rate of between 85% to 95% between 10.30am to 2.30pm on a weekday. Mr Rogers described that as demonstrating high demand; he accepted that his survey did show availability of untimed parking in Bellevue Avenue.

43. I accept the agreed expert evidence that any parking provided at the rear of the site for the retail use would be unlikely to be used for customer parking given the general prevalence of on-street parking, and is more likely to be used by workers at the retail use. Approval of the proposed development would replace that workforce parking with parking for the new residential use. Mr Coady was of the opinion that because of the small size of the shop the workforce parking demand is unlikely to exceed 1 space; the focus of Mr Rogers’ evidence was on the loss of the 2 retail spaces at the rear which he considered would result in displacement to the surrounding area. In oral evidence Mr Rogers agreed that there is a shortfall of 0.6 of a space, being the reduction in demand of 1.6 from the reduced floorspace, and the loss of the 2 spaces at the rear.

44. There is no issue with provision of parking for the residential component of the proposed development, which meets the numerical standards in Table 1; with resident visitor parking, which while it does not meet the numerical standard is, on the expert evidence, appropriately provided for in the available on-street parking, which was the subject of the dedication of land in 1956; or with customer parking for the retail use, which is also appropriately provided for in the on-street parking. While a calculation based on Table 1, taking into account a credit for 2.5 spaces, would result in a numerical shortfall of 2.5 spaces, based on the expert evidence the shortfall is in parking provision for the workforce of the retained retail use. Mr Coady’s estimate of one worker, based on the size of the retail premises, was not challenged; and Mr Rogers ultimately accepted a shortfall of 0.6 of a space. While the Traffic and Parking Assessment was deficient in not considering parking for the continued retail use, on the evidence available to the Court in the form of Mr Rogers’ survey and the expert evidence, although parking is in high demand there is some availability of parking in streets not subject to time restrictions during the week. I agree with Mr Coady that that parking would likely be used by the retail workforce. The submissions made objecting to the proposed development identified concerns with access on Edmund Hock Lane, which was not identified as an issue in the expert evidence; parking issues with shop top housing; and general parking problems in Avalon. While there is a shortfall in meeting the numerical standards required in part B6.6 of the DCP, having regard to the evidence before the Court as to the provision of parking for the residential, residential visitor, and retail customer users of the site, and the availability of parking to meet the likely demand from the retail workforce, I am satisfied that the proposed development provides reasonable alternative solutions to those standards and achieves the objective of provision of adequate parking for the various elements of the proposed development. On that basis, while there is a numerical non-compliance, that would not be a proper basis for refusal of this application.

Precedent

49. The parties agreed as to the approach to be adopted to the Council’s second contention, that granting consent to the proposed development would set a precedent that could be applied to a large number of other sites in the locality which when taken cumulatively would result in a significant and detrimental impact on the locality with regard to parking; however, they disagreed as to the outcome in the circumstances of this application. In Goldin & Anor v Minister for Transport (2002) 121 LGERA 101 Lloyd J determined an appeal from a decision of the then Senior Commissioner who had dismissed appeals in four separate applications for construction of structures on the waterfront of four properties in a street in Castlecrag. The Senior Commissioner had noted that although the notion of precedent "is treated with considerable caution" by the Court, "in this instance the pressure to achieve a further 13 shoreline facilities, given the existence of 25 lots that could be seen as benefiting, seems likely to be an inevitable consequence of approvals in this location". In addressing a ground of appeal that it was an error of law for the Senior Commissioner to have determined the matter on its potential precedent, Lloyd J considered the relevant authorities, commencing with the decision of Sugerman J in Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177, who had held (at 182) that applications must be considered on their own merits, and that it would be unduly onerous to refuse an application, unobjectionable on its individual merits, "on the mere chance of probability that there may be later applications sufficient, if approved, to produce in their totality some undesirable condition". At [31] Lloyd J noted that the authorities established that the precedent effect of a particular proposal is a valid consideration. Those authorities included the decision of the Court of Appeal in BP Australia Ltd v Campbelltown City Council (1994) 83 LGRA 274, holding that the primary judge had not erred in giving weight to "the risk of establishing a precedent readily invokable by prospective developers of the residue of the undeveloped 'island' land". Lloyd J concluded:

34. In the present case the Senior Commissioner did not err in law by taking into consideration the fact that approval of the applications would be a precedent. That was not an irrelevant consideration. It was a relevant consideration on the facts and circumstances of the case as found by the Senior Commissioner, namely: that the proposed developments were not themselves unobjectionable, having, as the Senior Commissioner found, an undesirable visual impact on a largely undeveloped shoreline; and that there was more than a mere chance or possibility that there may be later undistinguishable development applications of the same class - or, as the Senior Commissioner found, "would lead inexorably to a further three over time" and "pressure to achieve a further 13 shoreline facilities" - also described by the Senior Commissioner as "likely to be an inevitable consequence".

50. The applicant submits that the only evidence in support of the chance or possibility of other applications being made is the statement by Ms Hay at para 3.5 in the joint report that the proposal if approved would set an undesirable precedent “as there are a number of other shops along Old Barrenjoey Road that could develop in a similar manner”, and that the cumulative impact of further such development in Avalon Beach “would be severe and would further exacerbate the existing constrained parking situation”. In the particular circumstances of this application, there is no development consent requiring parking at the rear; a reduction in retail GFA which reduces demand; dedication of parking; no issue with visitor parking; and no evidence that there are other properties in similar circumstances. There is nothing to stop the Council from later calling a halt to additional applications, and there is no evidence here even of a possibility of other applications.

51. The Council submits that this proposed development is objectionable in itself, and although there are no precise examples of other similar sites, if there are other sites that are similar there is a sufficient probability that an approval of this application would be the first matter argued to justify a similar outcome.

52. I accept that if there were to be a number of applications seeking, and obtaining, approval of extensions or redevelopment of other sites in the locality without providing on-site parking consistent with the DCP requirements, there could be a cumulative impact on availability of parking in Avalon. On the expert evidence, and on the resident submissions, there are issues with parking in Avalon village centre. However, in contrast with the situation in Goldin, there is no evidence before the Court to support the proposition that there are other sites in the locality where there is a likelihood of a similar application being made. On the limited evidence before the Court, it could be said that there is diversity in existing development in the locality, for example, the adjoining property at 64 Old Barrenjoey Road which had a carport before consent was granted in 2011 to an additional floor with provision of 4 parking spaces, and the former bank building at 49 Old Barrenjoey Road which would not appear to have provided any on-site parking, despite a shortfall of 16 spaces. Whether or not the present application could be described as “unobjectionable” on its merits, the evidence does not support a finding of a likelihood of future undistinguishable development applications. In any event, any such applications would have to be considered on their merits in the context of the provisions of the DCP which permits variations in appropriate circumstances. The concern for precedent and potential cumulative impact on the locality would not be a basis for refusing consent.

Resident objections

53. The matters raised by the objectors, both in written and oral submissions, are noted above. The issue of parking is addressed above in response to the Council’s contentions. The other issues raised by the objectors were addressed in the assessment by the Council of the development application under s 79C of the Act.

54. The assessment report (ex 2, tab 5) assessed the development application the subject of this appeal by reference to the requirements of the LEP and the DCP, and the compliance table noted compliance with all those requirements other than off-street parking, solar access, adaptable housing, waste facilities, front building line, building envelope, and development mix. Those non-compliances were addressed in the report. The report notes that given the size and orientation of the site, compliance with internal solar access requirements would be difficult, and the proposal is acceptable given that available sunlight will be direct sunlight to a reasonable proportion of the decks and living rooms. Elevational shadow diagrams show that the units on Edmund Hock Lane will not be impacted by shadow from the development. The proposed development meets the DCP requirements for private open space. The request to vary the DCP standard for provision of adaptable housing and accessibility is supported, on the basis that there are 2 units, the proposal does not include a lift and is not required to, and the increase in construction costs associated with ensuring that one unit is adaptable would outweigh the benefit of additional housing in Avalon Village locality.

55. In relation to character, the report notes the comments of Council’s urban designer that the ground floor adopts the proportion of the adjacent shops and the upper floors are not considered excessive in scale when seen from public places, and states that the proposal meets the height requirement, provides good articulation to Old Barrenjoey Road at all levels and reasonable articulation to Edmund Hock Lane, is not excessively high and bulky, and will not be out of place in the surrounding area. The report acknowledged, in response to objections that the proposal is out of keeping with the existing character of this part of Avalon and its village atmosphere, that it would be the only 3 storey building along this section of Old Barrenjoey Road, there being larger shop top housing schemes further to the south along Old Barrenjoey Road. Notwithstanding that, the report considered that the proposal reflects the seaside village atmosphere of Avalon Beach consistent with the statement of desired future character in the DCP, noting that the height of the proposal has been modified since the original application was refused and that reduction with the greater than required setback to the residential levels will ensure that the proposal is not readily perceived as being higher or out of scale with the prevailing form of development in the locality. The numerical non-compliances with front boundary setback requirements in the DCP were considered acceptable given that the proposal is infill development above the existing shop. The non-compliances with the DCP building envelope requirements were considered acceptable, as the proposal meets the outcomes of the control. A variation of the DCP development mix was acceptable given that the proposal is only for 2 units.

Conclusion

56. The Council assessment of the proposed development under s 79C concluded that the proposal is for shop top housing which is a type of development permitted in the locality, and is a reasonable development of the site notwithstanding minor non-compliances with the building envelope and front building line controls in the DCP. I accept that assessment of the proposed development against the applicable controls in the LEP and DCP. Ms Hay agreed in oral evidence that the proposed development is consistent with the objectives of the B2 Local Centre zone, other than to note in relation to public transport that Avalon is poorly served by public transport and people will still need to drive. I accept that evidence. I am satisfied that the proposed development is consistent with the objectives of the zone and the LEP, in particular in providing residential uses above street level in a way that is compatible with the characteristics and uses of the site and its surroundings.

57. For the reasons above, I am satisfied that notwithstanding non-compliance with the numerical standards in the DCP for provision of parking, the proposed development provides adequate parking consistent with the objective of those controls, and that there is available on-street parking to meet the shortfall. While the Council’s concern for the precedent that might be set if this application is approved, and the cumulative impact of approval of other similar developments on parking in the locality, is understandable, the evidence before the Court does not provide a basis on which that concern could justify a refusal of this development application. Any future similar development proposed in the locality would have to be considered on its merits.

58. The proposed conditions respond to issues raised in the resident submissions and the Council assessment, and include condition B28 specifying requirements for garbage enclosures and management of residential and commercial waste and recycling, and condition B34 addressing the Council’s issue with construction of the rear fencing so as to allow passage of floodwater.

59. Based on the evidence before the Court I am satisfied that it is appropriate to grant consent to the proposed development subject to the conditions as proposed by the parties, with the deletion of conditions G6 and G7, which provide advice as to review and appeal rights which is not applicable in the circumstances.

60. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 468/2014 for construction of two 3 bedroom apartments above an existing ground floor shop unit with parking for four vehicles on Lot 3, DP 226498, 66 Old Barrenjoey Road Avalon Beach, is approved subject to the conditions in Annexure A.

3. The exhibits are returned except for exhibits A, F, 3 and 4.

Linda Pearson

Commissioner of the Court

10425 of 2015 - Annexure A (98.1 KB, pdf)

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Decision last updated: 04 December 2015