Levy v Waverley Municipal Council

[2008] NSWLEC 1101

Land and Environment Court

of New South Wales

CITATION:	Levy v Waverley Municipal Council [2008] NSWLEC 1101
PARTIES:	APPLICANT Isaac Levy RESPONDENT Waverley Municipal Council
FILE NUMBER(S):	11187 of 2007
CORAM:	Moore C
KEY ISSUES:	Development Consent :- Conditions of consent Parking
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	19 and 27 February 2007
EX TEMPORE JUDGMENT DATE:	27 February 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr M McMahon, solicitor M E McMahon & Associates RESPONDENT Mr S Patterson, solicitor Wilshire Webbb Staunton Beattie

JUDGMENT:

THE LAND AND

ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

27 February 2008

11187 of 2007 Levy v Waverley Municipal Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER : Mr and Mrs Levy live in a Californian bungalow in North Bondi – a dwelling which from its appearance was erected in the period prior to the Second World War. At the present time, the house has a garage at its rear on the western side accessed by a narrow driveway from Murriverie Road. Mr and Mrs Levy have obtained consent from Waverley Council for alterations and additions to a house to add a family room extension and storage basement but were refused permission for a carport structure in front of the building.

2 They now seek the consent of the Court to a revised version of the proposed car parking in the front setback. This revised version of the parking no longer requires a carport structure but does propose the demolition of part of the northern facade of the front porch of the house and the insertion of a car parking space at an angle effectively utilising the present driveway with a minor demolition of the front fence of less than 1 m in extent.

3 A variety of matters are raised by the Council in opposition to this proposal. For the main, they come from the provisions of the Waverley Development Control Plan and the parts of that plan dealing with dwelling house development (Part D1) and land use and transport (Part I1).

4 Before turning to the merits of the proposal, it is appropriate to provide a little more detail on of the garage and driveway that exist on site at present. The existing garage at the rear of the house is to be demolished and the significant portion of its space incorporated in the new family room. The driveway, if the car parking spaces as presently proposed were not to be permitted, will remain as it is. That driveway is 2.55 m wide from the boundary fence to the face of the house and, on the inspection, observed to be capable of accommodating up to four cars parked in a horizontally stacked arrangement. The present parking and driveway slopes somewhat (but not excessively) from the front of the site towards the garage.

5 What is proposed is effectively creating one car parking space along the present alignment of the driveway extending to some 1.6 m behind the front wall of the front room on that side of the house. That space which would be 2.55 m wide and it would be sufficiently long to comply with the provisions of 5.7.4 of Part D1 of the DCP which requires that carports and hardstand parking areas have minimum internal dimensions of 5.5 m by 2.5 m per vehicle.

6 If the present proposal used to be permitted, an additional car parking space will be created which will be 4.8 m in length and 1.9 m in width. The northwestern portion of that car parking space (and, as that is depicted on the diagram made available, it shows that possibly the north western portion of any 85th percentile vehicle parked on that space) intrudes into the reversing line for the vehicle space along the alignment of the present driveway.

7 Having set that factual context and noting that the demolition of the porch is proposed to be of its facade and not of its roof, I turn to the consideration of the other provisions of the development control plan that, in addition to the dimensions of this space, are of import in the proceedings.

8 I do so in the context of the obligations set the by the Court of Appeal's decision in Zhang v Canterbury City Council (2001) 115 LGERA 373 that the provisions of the DCP are to be considered as a fundamental element in, or a focal point to, my decision-making process. The provisions of the DCP directly pertinent to the application are entitled to significant weight in my decision making process but are not in themselves determinative.

9 However, if the proposal does not meet the DCP’s requirements, I may still grant consent, given a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79C of the Act, if there are reasons to render it acceptable.

10 Here, there are a number of significant non-compliances with the DCP – one of these to which I have already referred is the required dimensions of a car parking space contained in the 7.5.4 of the DCP. In Part I1 of the DCP, a number of matters are dealt with of a philosophic nature which demonstrate that this is a plan, contrary to many other plans dealing with these topics, which is designed to provide a limit on parking and to stimulate a more ecologically appropriate attitude to public transport. This is consistent with the objectives contained in the plan in the parking provision context discussed in Part I1 of the DCP under 2.0 and particularly the introduction at 2.1.

11 The DCP provides a maximum permitted provision of parking spaces for residential dwellings with two to three bedrooms (which the current case) of one such space. The present proposal seeks to replace what is a de facto provision of three or four car spaces with a de jure provision of two such spaces.

12 The DCP also makes it expressly clear that Council prohibits the demolition of any part of an existing building for the purposes of provision of car parking. The façade of the porch of the present building will need to be demolished for the provision of the eastern proposed car parking space.

13 In the applicant’s statement of environmental effects, the author sets out a number of matters in support of parking in the front setback – one of which is that the present arrangement with the narrow driveway provides no capacity to turn the vehicle in the appropriate direction for its next movement. The present proposal does not do so either. The proposal would require reversing from the site as would using the present driveway spaces.

14 In effect, what is sought to be done is to relocate one of the existing de facto parking spaces into the front setback with demolition of portion of the house.

15 The DCP also provides that all parking should be behind the building line at the front of the dwelling. In this case, the formalised parking (as opposed to the present informal parking) would be noncompliant with this not merely for the angle of the eastern car parking space with its smaller dimensions than the DCP requires and its intrusion into the porch area; but also with respect to the other car parking space proposed to use part of the driveway

16 Although the present proposal is undoubtedly a significant improvement on the original carport structure that was sought to be erected in the front setback, it has nonetheless significant non-compliances with a range of measures contained in the DCP.

17 I am satisfied that, although the applicant desires to have parking at the front of the house and more conveniently located near the front door, there are no compelling reasons why the now proposed parking element of the application should be permitted contrary to those provisions of the DCP, and it is therefore not approved. The appeal is dismissed.

Tim Moore
Commissioner of the Court