McLennan v Woollahra Municipal Council

[2009] NSWLEC 1224

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
McLennan v Woollahra Municipal Council [2009] NSWLEC 1224

PARTIES:
APPLICANT
Scott McLennan

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):
10244 of 2009

CATCHWORDS:
DEVELOPMENT CONSENT :- appeal against condition of consent, access to off-street car parking space, landscaped areas, requirements of development control plan.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979;
Woollahra Local Environmental Plan 1995;
Paddington Heritage Conservation Area Development Control Plan 2008

CORAM:
Bly C

DATES OF HEARING:
3 July 2009 and 9 July 2009

JUDGMENT DATE:
10 July 2009

LEGAL REPRESENTATIVES

APPLICANT
Mr P Kelso (Solicitor)
SOLICITOR
Bartier Perry

RESPONDENT
Miss M Hawley (Solicitor)
SOLICITOR
Lindsay Taylor Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

10 July 2009

10244 of 2009  Scott McLennan v Woollahra Municipal Council

JUDGMENT

Introduction

1. On 20 April 2009 the council granted development consent for alterations and additions to the existing attached dwelling house at 29 Hopetoun Street Paddington.  Condition C1(b) of that consent requires the amendment of the plans associated with that approval be amended so as to delete the proposed rear parking space that is to have access off Hopetoun Lane. 

1. The applicant has now appealed to this Court against Condition C1(b).

Planning controls

1. The site is zoned Residential 2(a) under Woollahra Local Environmental Plan 1995 and in this zone dwelling houses are permissible with development consent. 

1. Being situated within the Paddington Heritage Conservation Area the Paddington Heritage Conservation Area Development Control Plan 2008 is applicable.  Relevantly applicable car parking provisions of the DCP are contained within Part 4.2.6.

Advertising

1. Prior to the granting of consent the council advertised the proposal and two submissions were received: one from The Paddington Society; and one from the neighbour at 27 Hopetoun Street.  The Paddington Society was concerned to ensure that the provisions of the DCP (including car parking) are complied with.  The neighbour was concerned in relation to possible impacts that might arise during construction, appropriate use of materials and possible overshadowing.

1. Leaving aside car parking, I understand that the council officer’s town planning report that recommended approval of the application and the conditions of consent have dealt with all these matters.

Contentions

1. According to the respondent's Statement of Facts and Contentions the respondent says that the condition should be retained mainly because the proposed vehicle access does not comply with Controls C1, C6 and C10 in Part 4.2.6 of the DCP and would be inconsistent with objectives O6, O9 and O13.  These provisions now essentially involve the following matters that were pressed during the hearing.

   The proposal does not allow an 85th percentile vehicle to access the proposed car space without the loss of on street parking generally opposite the proposed vehicle entry.  This would be inconsistent with the applicable objectives that, whilst encouraging the provision of off-street parking, require compliance with council's controls and two ensure that on street parking is not adversely affected.  Particular reference is made to Australian Standard 2890.1-2004 (vehicle swept paths) and Drawing RF2 Appendices A and B in the DCP. 

2. The council's contentions specifically exclude concerns in relation to site landscaping subject to a condition of consent requiring, consistent with the DCP, a minimum of 8% of the site area (ie 9.3 sq m) being available for deep soil landscaping.  This matter was subsequently enlivened when it was discovered that the swept paths of vehicles entering and leaving the parking area would affect some of the proposed landscaped area, significantly reducing the available deep soil landscape area.  Hence the objectives of the DCP would not be met.  These objectives include the provision of: planting at ground level to assist on-site drainage; usable private open space; and adequate deep soil areas capable of sustaining medium to large vegetation.

1. The applicant's Statement of Facts and Contentions asserts that the condition should be deleted, essentially for the following reasons:

   Hopetoun Lane is a service Lane with many rear lane accesses, garages and parking spaces already approved and in use.
   Access to the car space is satisfactory taking into account the infrequent nature of parking and Hopetoun Lane opposite the site
   The car space complies with the dimensional requirements of the DCP.
   The swept path analysis shows that an 85th percentile vehicle can enter and leave the car space if no vehicle is parked opposite the garage door (in the Lane) and otherwise there is acceptable manoeuvring.
   The deep soil landscaped area represents 6.7% (ie 7.7 sq m) of the site area that largely complies with the DCP requirement.

The evidence

1. In relation to the car parking accessibility issue I was assisted by the following traffic expert/engineers:

   Mr A Morse - applicant
   Mr F. Wright - council
   Mr Y Wise – council

2. When the hearing began on-site I heard evidence from these experts.  I also heard from on neighbour who lives opposite the site to the east across Hopetoun Lane.  He said that he supports the proposal and intends making a similar application to the council for he car parking space on his property with access off Hopetoun Lane.

Preliminary conclusion

1. During the hearing I was invited to express my opinion in relation to the manoeuvrability and car parking issue in order that the applicant might seek to amend the proposal in response to the landscaping concerns.  In response I essentially explained that, taking into account the experts' and other evidence and submissions given on site and subsequently that, notwithstanding the difficulties associated with vehicular access that I would be inclined to approve the application.  Critically, this was subject to the landscaping arrangement being amended so as to exclude the swept path of vehicles entering and leaving the parking space but otherwise meeting the landscaped area requirements of the DCP.

Landscaped areas

1. A revised design has now been prepared that provides areas that slightly exceed the required 9.3 sq m of deep soil landscaping.  I have now considered this plan and am satisfied that it meets relevantly applicable the objectives of the DCP and that the proposed plantings in these areas are likely to be successful.

Car park access

1. Returning now to the car park access question there are several reasons why I find this to be satisfactory.  First, the proposal effectively complies with Control C1(c) of the DCP in so far as it refers to Appendices A and B.  That is, absent parking in Lane opposite the site, and 85th percentile vehicle can enter the parking space a single movement and leave in two movements. 

1. Second, I accept that it would be very difficult perhaps impossible for an 85th percentile vehicle to enter and leave the parking space if there are cars parked in the lane opposite the site.  However, there are numerous existing similar garages and parking areas in the lane that are equally affected.

1. Third, there is a possibility or likelihood of an application being forthcoming for vehicular access off the lane for properties opposite the site that would, not unreasonably in my opinion, eliminate parking opportunities that otherwise restrict vehicular access to the subject site.

1. Fourth, the car space complies with the dimensional requirements of the DCP. 

1. Finally, given the second point above I agree with the Council that there should be a condition of consent that limits the use of the parking space to a vehicle smaller than the 4.9 m 85th percentile vehicle, but not as small as 4.45 m.  Plainly smaller vehicles are more likely to be able to manoeuvre into and out of the car parking space when cars are parked opposite in the lane. In this regard I accept that a condition limiting the length of vehicles to 4.6 m would be appropriate taking into account the evidence of Mr Morse that such a vehicle could enter and exit the car space with “relative ease”.  In effect this condition means that the applicant/landowner is precluded from seeking to have parking restrictions imposed to prevent parking in lane opposite the site.  Such a condition goes with the land and I have not been persuaded that it need be imposed by way of a deferred commencement condition requiring the registration of an s88B instrument on title.

Conclusions

1. The objectives in Part 4.2.6 of are the DCP that deal with on-site parking seek to encourage the provision off off-street car parking where feasible and to ensure that access to such parking meets relevant standards.  They also seek to ensure that on-street parking is not adversely affected.  On balance I am satisfied that these are met.  Also, as discussed above I am satisfied that the landscape objectives of the DCP are now met.

Orders

1. The orders of the Court are therefore:

   1.The appeal is upheld

   2.Development consent (No 713/2008/1) for alterations and additions to the existing dwelling house at 29 Hopetoun Street Paddington is amended as follows:

   Condition C1(b) is deleted.
   Condition I is amended by inserting after condition I1, the following:

   I2. The use of the "rear yard car space" shown on Drawing No: A04 Revision C is restricted to vehicles with a length not greater than 4.6 m

   3.         Exhibit C is retained.

___________________
T A Bly
Commissioner of the Court

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