Nixon v Waverley Council

Case •

[2019] NSWLEC 1653

•

30 January 2020

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Nixon v Waverley Council [2019] NSWLEC 1653
Hearing dates: 25-26 November 2019
Date of orders: 30 January 2020
Decision date: 30 January 2020
Jurisdiction:Class 1
Before: Chilcott C
Decision:

The Court orders that:
(1) The Applicant is granted leave to amend its plans.
(2) The appeal is upheld.
(3) The Applicant’s development application DA-306/2018 is determined by the grant of consent, subject to the condition attached at Annexure A.
(4) Exhibits are returned, except exhibits A, B and 1.

Catchwords: DEVELOPMENT APPLICATION – Car space; semi-detached dwelling pair – symmetry of pair already disrupted – urban design –character ­– streetscape and visual impacts considered – application of s 4.15(3A) of the EP&A Act – Applicant’s proposal achieves objects of controls with which it otherwise would not comply ­– consideration of precedent.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Waverley Local Environment Plan 2012
Cases Cited: Finney and anor v Waverley Council [2015] NSWLEC 1527
Goldin & Anor v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 [2002] NSWLEC 75
Segal and Another v Waverley Council [2005] NSWCA 310; 64 NSWLR 177
Texts Cited: Waverley Development Control Plan (Amendment 5) 2012
Category:Principal judgment
Parties: Douglas Nixon (Applicant)
Waverley Council (Respondent)
Representation:

Counsel:
A Hemmings (Applicant)
J Ede (Solicitor) (Respondent)

  Solicitors:
Hones Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s): 2019/80417
Publication restriction: No

Judgment

  1. COMMISSIONER: Douglas Nixon (the Applicant) has appealed the refusal by Waverley Council (the Respondent) of his development application DA-306/2018 seeking consent for alterations and additions to an existing semi-detached dwelling, including the partial demolition of, and alterations to, a verandah and front facade to accommodate a hard stand car parking space (the Proposed Development) at 28 Barclay Street, Waverley (the Subject Site).

  2. The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act), and the appeal is heard under the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

  3. The dwelling on the Subject Site is already the subject of a development consent for alterations and additions that include internal reconfigurations and a first floor addition, including provision of a dormer window fronting Barclay Street, and a swimming pool.

  4. The Applicant now seeks consent for the construction of a single car space within the front setback of the Subject Site, including:

  1. partial demolition of the verandah and front façade of the semi-detached dwelling on the Subject Site;

  2. construction of a new footing under the front bedroom of the dwelling;

  3. removal of soft landscaping in the front setback;

  4. alterations to the front fence to provide a sliding timber gate.

  1. The Parties agree that the Subject Site is not located within a heritage conservation area, is not subject to flooding and is not affected by acid sulphate soils. The dwelling on the Subject Site is not a listed heritage item.

  2. The Court undertook a view of the Subject Site and its surrounding residential area prior to the commencement of the appeal. No objectors sought to make submissions in relation to the Proposed Development during the view.

  3. Following completion of the view, the Parties confirmed that a conciliated outcome was not possible to resolve contentions between them, and as required under s 34AA of the LEC Act the matter proceeded to hearing.

Statutory Considerations

Environmental Planning and Assessment Act 1979

  1. The objects of the of the Environmental Planning and Assessment Act 1979 (EP&A Act) are as follows:

(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,

(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,

(c) to promote the orderly and economic use and development of land,

(d) to promote the delivery and maintenance of affordable housing,

(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,

(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),

(g) to promote good design and amenity of the built environment,

(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,

(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,

(j) to provide increased opportunity for community participation in environmental planning and assessment.

  1. Section 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),

that apply to the land to which the development application relates,

…

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

  1. Section 4.15(3A) of the EP&A Act further provides that:

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.

Waverley Local Environment Plan 2012

  1. Development on the Subject Site is also subject to the provisions of Waverley Local Environment Plan 2012 (WLEP), and the following provisions of that instrument are of relevance in this appeal:

  1. Clauses 2.1 and 2.3, under which the Subject Site is zoned R2 Low Density Residential, and the objectives of which are to:

  • provide for the housing needs of the community within a low density residential environment.

  • enable other land uses that provide facilities or services to meet the day to day needs of residents.

Waverley Development Control Plan (Amendment 5) 2012

  1. It was common ground between the Parties that development on the Subject Site is also subject to the provisions of Waverley Development Control Plan (Amendment 5) 2012 (WDCP), the purpose of which is stated to be as follows:

“This DCP provides strategies, objectives and development guidelines for the assessment of Development Applications (DA) and complements the provisions of Waverley Local Environmental Plan 2012 (WLEP 2012).”

  1. Given the geography of the Waverley LGA, matters of car parking are the subject of numerous controls through a number of sections of WDCP.

  2. The following provisions of WDCP are of most relevance in this appeal:

  1. Part B8 includes general provision concerning transport in the Waverley LGA. It notes that:

“Car parking is one of the most critical planning and transport issues in Waverley. Wherever possible, Council strongly encourages the use of alternative modes of transport such as walking, cycling and public transport and continues to work towards providing better transport connections to the area.”

  1. Part B8 also provides strategies for consideration in the assessment of development applications, including the following strategies:

“The provision of car parking on‐site may not be appropriate in all locations or circumstances and approval will only be granted where the site and locality conditions permit.   

Car parking must be designed to complement the design of the building and streetscape to which it relates and incorporate a range of appropriate materials and design.

Where site conditions allow, car parking structures should be located behind the front building line. In some circumstances, car parking structures in front of the building line may not be appropriate for streetscape or design reasons.  

Driveways and vehicular access should be designed to minimise the loss of on‐ street parking wherever possible.”

  1. Part B8.4 states that:

“The provision of parking should satisfy the parking demand for current and future residents but recognise the need to balance car parking access and urban design outcomes. This Part should be read in conjunction with the Austroads Traffic Management Guides and all relevant Australian Standards.”

  1. This part of WDCP provides the following relevant urban design objective and controls for car parking within the Waverley LGA:

“Objective

To ensure the provision of off‐street parking is subject to considerations of urban design, streetscape and heritage conservation.

Controls

(a) Where off street parking is not characteristic of the street, vehicular access from the street is not permitted.

(b) Properties which have two frontages should have only one vehicular crossing to minimise pedestrian conflict.

(c) Applications involving on‐site parking spaces shall indicate in the street analysis how the proposal maximises the retention of on‐street parking, and retains and improves pedestrian and cyclist amenity. The street analysis must show:

(i) a comparison between the current and proposed on‐street parking;

and

(ii) adequate pedestrian and cyclist accessibility.

(f) Car parking and vehicular access must not dominate the streetscape. Landscaping is to be used to soften the impact of such structures/areas.

(g) Car parking and driveway design is to preserve mature and significant trees and vegetation on the site and in the surrounding streetscape.

(i) Entry gates and structures for car accommodation should be an open design to allow for improved security by way of street surveillance and to reduce any impact on the streetscape.

(l) Access ways and driveways are to enable vehicles to enter the parking space in a single movement, and to leave the space in a maximum of two turning movements.

(m) The templates provided in Australian Standards must indicate the paths swept by manoeuvring vehicles and must be used by applicants to design access to parking and loading facilities. A minimum clearance of 300mm between the swept path and any building and obstruction is to be maintained.”

  1. Part C1 of WDCP, concerns Residential Development in relation to dwelling houses and some other forms of low density residential development. It includes the following specific provisions which are of relevance in this appeal:

  1. Section 1.4 concerning streetscape and visual impact, which provides the following objective and controls:

“Objectives

(a) To encourage and facilitate lower density residential accommodation of a high architectural and aesthetic standard, that acknowledges and responds to the architectural style, scale, materials and character of the existing built environment.

Controls

(c) Development must not dominate the streetscape, particularly when viewed from a public place such as parks, reserves, beach or the ocean.

(d) New development as well as alterations and additions to existing dwellings are to maintain the established character of the building in terms of significant landscaping. Existing ground levels and significant landscaping is to be maintained.”

  1. Section 1.6 concerning semi-detached dwellings & terrace style development, includes:

  1. the following general objectives:

“(a) Any alterations and additions to single dwelling, dual occupancy, terrace, and semi-detached dwelling developments need to visually read as an inclusive part of the existing dwelling from the streetscape.

(b) Materials and detailing of design elements such as roof features, garages and car ports is to be of a high quality and reference existing architectural features.”

  1. a specific objective and a control within section 1.6.1 concerning Built Form. This section states that “semi-detached dwellings exhibit a wide variety of stylistic forms ranging from mid Victorian to contemporary styles. Consideration of additions to a semi-detached dwelling needs to begin with identification of and maintenance of the paired building’s style, form and detail”. The objective and control are:

“Objective

(a) To maintain the original style, form and detail of semi-detached dwellings in order to provide cohesion between paired buildings.

Control

(d) Alterations to front verandahs are to be minimal and to maintain the existing verandah form, detail and finish and the relationship of the verandah to the front verandah of the adjoining semi-detached dwelling.”

  1. Section 1.11 concerning car parking, which includes:

  1. the following relevant strategies and objectives:

“Strategies

The provision of car parking on-site may not be appropriate in all locations or circumstances and approval will only be granted where the site and locality conditions permit.

Car parking must be designed to complement the design of the building and streetscape to which it relates and incorporate a range of appropriate materials and design.

Where site conditions allow, car parking structures should be located behind the front building line. In some circumstances, car parking structures in front of the building line may not be appropriate for streetscape or design reasons.

Driveways and vehicular access should be designed to minimise the loss of on-street parking wherever possible.

Car park access is to be provided from secondary streets or lanes where possible.”

“Objectives

(a) To provide convenient and accessible parking that is appropriately designed and located.

(b) To achieve a high standard of urban design and retain the visual quality of lower density residential accommodation, streetscapes and landscapes.

(c) To protect the amenity and safety of pedestrians.

(d) To ensure that car parking accommodation does not dominate or adversely impact on the existing built or landscape character of the street.

(e) To encourage the use of alternative modes of transport in areas well serviced by public transport.

(f) To ensure on-street parking supply is protected by minimising impacts of additional vehicular kerb crossings.”

  1. Section 1.11.2, concerning the location of car parking, and which states that for existing development, car spaces should be sited having regard to the following hierarchy

“(i) Hardstand, carport or garage located at the rear of the site with access from a rear lane;

(ii) Hardstand, carport or garage located at the side of the dwelling behind the building alignment; or

(iii) Hardstand car space forward of the front building line. Figure 10 Hierarchy of preferred car parking locations.”

  1. Section 1.11.2(d) which states that a hardstand (in the form of wheel strips) or carport forward of the building line may be permitted where (inter alia):

“(i) There is no rear access;

(ii) The site is of sufficient width where the car space will not

dominate the existing building (i.e. does not exceed 45% of the

width of the site frontage);

(iii) It is no greater than a single car space;

(iv) The distance between the building and the front property

boundary is a minimum of 5.4m;

(v) Public views would not be adversely affected;

(vi) There is a predominance of this form of off street car parking in the immediate vicinity of the site;”

  1. Section 1.11.3, concerning the design of car parking, which requires, inter alia, as follows:

“(a) All car parking should be designed to complement the style, massing and detail of the dwelling to which it relates.

(b) Car parking is to be sympathetically integrated into the design of residences and to be secondary in area and appearance to the primary residence and related site.

(c) No element of the street façade/frontage of a building, including verandahs and window awnings are to be removed or demolished in order to accommodate car parking.

(i) Where gates are proposed they should have an open design to allow for improved security by way of street surveillance and are not to open over the footpath, or public nature strip or pedestrian path to the front door.”

  1. Section 1.11.4, concerning dimensions of car parking, as follows:

“(a) Hardstand spaces, carports and garages should have minimum dimensions of 5.4m x 2.4m per vehicle.

(b) All car spaces are to accommodate the vehicle within the site without the vehicle or vehicle appendages overhanging the public domain. Internal sliding or hinged gates are to be provided to hardstands/carports to ensure enclosure of the vehicle within the site.”

Contentions

  1. At the commencement of the hearing, the Applicant sought leave to rely on amended plans, and leave was granted without objection.

  2. The Applicant’s amended plans:

  1. provide for a car space, in the form of two concrete wheel strips, with a permeable surface between the strips, of 5.4m in length and 2.4m in width, as required under section 1.11.4 of Part C1 of WDCP;

  2. require that a portion of the front south east corner of the house, approximately 1.1m wide and 700mm deep, and including a portion of both the front verandah and a front bedroom, to be removed in order to provide the required 5.4m car space length;

  3. continue to require the construction of a new footing under the front bedroom in the dwelling;

  4. would also require that the brick and concrete corner of the verandah and two posts on the corner supporting the verandah roof, to be reconstructed approximately 1.1m west of their current position;

  5. would require that the length of the front timber balustrade also to be reduced by 1.1m;

  6. continue to require changes to the front fence to provide a sliding timber gate.

  1. As a consequence of the amended plans the Parties confirmed that a number of the contentions between them had been resolved. These included:

  1. the quantum and design of landscaping to be provided by the Applicant within its Proposed Development;

  2. the design and materials of the proposed front timber fence and gate.

  1. The principal contentions remaining in this appeal concerned, first, the potential character and urban design impacts, and, second, the potential streetscape and visual impacts, of the Proposed Development.

  2. The Respondent also said that the Applicant’s Proposed Development, if approved, would create an undesirable precedent that might give rise to further applications seeking consent for car parking spaces within the front setbacks of properties in the vicinity of the Subject Site.

  1. Consequently, the principal questions requiring resolution in this appeal are:

  1. are the potential character and urban design impacts of the Proposed Development acceptable?

  2. are the potential streetscape and visual impacts of the Proposed Development acceptable?

  3. will the proposed development establish an undesirable precedent for future development in the locality?

  1. During the hearing the Court was assisted in its consideration of these questions by evidence from the following expert planning witnesses:

  1. Mr Tony Moody, for the Applicant; and

  2. Ms Judith Elijah, for the Respondent.

Are the potential character and urban design impacts of the proposed development acceptable?

  1. The principal character and urban design requirements for the Proposed Development are provided within WDCP Part B8.4 (Urban Design), and WDCP Part C1 section 1.6.1 (Built Form in relation to Semi-detached Dwellings and Terrace Development), the objectives and controls of which were respectively identified above at [14(3)] and [14(4)(b)(ii)].

  2. My assessment of these potential character and urban design impacts of the Proposed Development will follow the following two part process:

  1. first, I will consider the evidence of the expert planners concerning the character and urban design impacts of the Proposed Development;

  2. second, based on my consideration of the evidence of the expert planners, I will then assess the Proposed Development’s compliance or otherwise with the controls identified above at [22].

The evidence of the expert planners concerning character and urban design

  1. Within a supplementary report tendered as evidence at the hearing, the expert planners, Mr Moody and Ms Elijah agreed that the Applicant’s proposed concrete wheel strips would not, in isolation of other proposed works, create any adverse impact. I understand that this agreement applies to potential character and urban design impacts, amongst other potential impacts.

  2. They further agreed that the following elements of the existing semi-detached dwelling (including the first floor additions approved by the Respondent Council) would be retained, should the Court be minded to approve the Applicant’s amended plans:

  1. the top ridge line of the roof;

  2. the approved roof form;

  3. the skillion extension of the roof on the front façade including the guttering;

  4. the gable on the front façade;

  5. the front door and front windows;

  6. the front fence, less the opening in that fence required for entry to the Applicant’s proposed car space.

  1. Notwithstanding these agreements, Mr Moody and Ms Elijah differed in their assessment of the potential character and urban design impacts of the Proposed Development, as follows:

  1. Ms Elijah, for the Respondent Council said that:

  1. although changes had already been approved by the Respondent Council to the first floor of the dwelling on the Subject Site, including changes to the roof form and chimney, and the insertion of a dormer window into the roof of the dwelling, it was her opinion that:

  1. the pair of semi-detached dwellings at 26 and 28 Barclay Street remained ‘symmetrical’ because the approved changes, in particular the first floor dormer window, could be replicated on the adjoining pair;

  2. the approved changes were consistent with the objective in section 1.6.1, as they maintained the original form, style, and detail of the semi-detached dwelling, and provided cohesion between the paired buildings.

  1. if the Proposed Development were approved, the buildings would no longer present as a pair of semi-detached dwellings because the proposed shift in the location of the corner post of the front verandah would disrupt the presentation of the semi-detached pair;

  2. she agreed with the Applicant’s submission that the alterations proposed to the verandah were ‘minimal’.

  1. Mr Moody, for the Applicant, said that despite the changes identified above by Ms Elijah at [(a)] and [(b)];

  1. the Applicant’s proposed alterations to the verandah are minor in scale and not significant to the maintenance of a cohesive relationship between the dwelling on the Subject Site and its adjacent pair;

  2. the relationship of the verandah on the Subject Site and its adjacent pair relies more strongly on features such as the relative plane of the verandahs rather than on their relative length. Mr Moody said that the relationship of the verandah front planes would not change as a result of the Proposed Development;

  3. the corner post of the verandah is a minor element within the front façade of the building, and that the dwellings would continue to be read as a semi-detached pair for reasons other than the proposed shift in the verandah corner post;

  4. the presence of a parked car in the front setback of the Subject Site would not disrupt the architecture of the building, nor would it disrupt the cohesion of the pair of dwellings, because certain other elements of the building that are of greater consequence in this regard would remain unchanged (see above at [24]).

  1. Having considered the evidence of the expert planners, I prefer the evidence of Mr Moody in relation to the potential character and urban design impacts of the Proposed Development, and I agree with him that these impacts would be minor, for the following reasons:

  1. the works that have already been approved by the Respondent Council, have:

  1. provided consent for changes to the roof form and chimney;

  2. provided consent for the insertion of a dormer window on the first floor; and

  3. as a consequence, already substantially disrupted the symmetry of the semi-detached pair at 26 and 28 Barclay Street;

  1. as a consequence of [27(1)], I do not agree with the opinion of Ms Elijah, that the objective of section 1.6.1 (see above at [14(4)(b)(ii)]) has been achieved by the Respondent Council’s approval of the alterations to the first floor;

  2. as stated by Mr Moody, and based on my findings above at [(1)] and [(2)], I accept that:

  1. the proposed changes to the verandah, including the proposed shift in the position of the corner post, would have a minor impact of the symmetry on the semi-detached dwelling pair, which owes more to other factors in the design of the dwellings including the roof line and roof form, both of which are already disrupted;

  2. to the extent that the dwellings will continue to be read as a semi-detached pair, this will be for reasons other than the proposed shift in the verandah corner post; and

  3. the presence of a parked car in the front setback would not disrupt the architecture of the building, nor lessen the architectural cohesion of the pair of dwellings.

Compliance of the Proposed Development with the objectives and controls of section 8.4 of part B, and of section 1.6.1 Part C of WDCP

  1. Having considered the evidence of the expert planners in relation to character and urban design impacts, my assessment of the proposed Development’s compliance with the more specific objectives and controls of Part B8.4 and section 1.6.1 of Part C1 of WDCP is as follows:

  1. as concerns the requirements of Part B8.4, the Parties advised, and I accept, that the relevant controls pertaining to the assessment of potential urban design impacts in this appeal are controls (a), (c), (g), (i), (l) and (m) (see above at [14(3)]). In relation to these controls my assessment is as follows:

  1. off-street parking is a feature of residences within Barclay Street, including both in garages as well as in hard stand areas within the front setbacks of some houses. I conclude that the proposed development does not breach control (a);

  2. the proposed development will create one off-street parking space, but will result in the loss of one on-street parking space as a consequence of the need for a vehicle crossover to be constructed to facilitate access to the proposed on-site space. The Proposed Development will not impede pedestrian and cyclist amenity in the street access along the footpath will be maintained, and the use of the street by cyclists will not be impeded. I conclude that the proposed development does not breach control (c);

  3. the Proposed Development will not require the removal of any mature and significant trees, and will be the subject of a landscape plan, including proposals for vegetation in the front set-back, that is acceptable to the Respondent. I conclude that the proposed development does not breach the urban design requirements of control (g);

  4. the entry gate across the driveway to and from the Applicant’s proposed car parking space will include a sliding, motor driven, slat fence which will, in my assessment, not create any greater impediment to street surveillance than would be the case if that space contained a fixed front fence. I conclude that the proposed development does not breach the urban design requirements of control (i);

  5. it was common ground between the Parties that the Applicant’s Proposed Development would enable a vehicle to enter and leave the Subject Site in a manner that was compliant with the requirements of controls (l) and (m) of Part B8.4.

  1. as concerns the requirements of section 1.6.1 in Part C1 of WDCP:

  1. control (d) of that section provides that:

  1. alterations to a front verandah should be minimal, and in respect of this control the Applicant’s Proposed Development requires an alteration to 1.1m of the verandah’s eastern edge, and the relocation of the verandah’s supporting posts by the same amount, which is the minimum alteration required to provide a car parking space of 5.4 m in length, and I accept that this change is ‘minimal’;

  2. the verandah’s form, detail and finish should be maintained, and in respect of this, while accepting that the length of the verandah will be shortened by the minimum length required to provide the Applicant’s proposed car parking space, I accept that the essence of its style and presentation will not be changed. I conclude that the verandah’s form, detail and finish will otherwise remain unaltered.

  1. based on my assessment provided above at [(a)], the Applicant’s proposed development does not breach control (d) in section 1.6.1 of Part C of WDCP, and I am satisfied that:

  1. the cohesion between the dwelling at 28 Barclay Street and its pair at 26 Barclay Street would, in essence, be maintained in relation to the verandahs, particularly in circumstances where consent has been granted to the Applicant to undertake works at the first floor level which do not, in my assessment, maintain symmetry between the two dwellings; and,

  2. the verandah’s relationship to the front verandah of the adjoining semi-detached dwelling will also be maintained.

  1. As a consequence of my considerations above at [28], I conclude that the objectives and controls of Part B8.4 (Urban Design), and Part C1 section 1.6.1 (Built Form in relation to Semi-detached Dwellings and Terrace Development) of WDCP are satisfied and that, as a consequence, the potential character and urban design impacts of the Proposed Development, as they are addressed by these controls, are acceptable.

  2. I am also satisfied that, because the objectives and controls of Part C1 section 1.6.1 are satisfied, the Proposed Development will achieve the general objectives of section 1.6 of Part C1 of WDCP (see above at [14(4)(b)]).

Further character and urban design considerations

  1. There are also certain objectives and controls within section 1.11 of Part C1 of WDCP that are of relevance to the potential character and urban design impacts of the Proposed Development. However, the objectives and controls of section 1.11 are principally of relevance to the potential streetscape and visual impacts of the Proposed Development.

  2. Consequently, for reasons of coherence within the judgment, I will address these further potential character and urban design impacts alongside my consideration of streetscape and visual impacts of the Proposed Development (see below at [33] to [50]).

Are the streetscape and visual impacts of the proposed development acceptable?

  1. The principal streetscape and visual impact controls of relevance to the Proposed Development are provided within Section 1.11 of Part C1 of WDCP which concerns car parking, and includes the following objective:

“To ensure that car parking accommodation does not dominate or adversely impact on the existing built or landscape character of the street.”

  1. Within section 1.11 of Part C1 of WDCP:

  1. Section 1.11.2 (see above at [14(4)(c)(ii)]), provides a hierarchy for provision of car parking in the area covered by WDCP. Under the provisions of section 1.11.2(d), a car space located forward of the building line, whilst the least preferred option within the hierarchy, is nevertheless permitted in certain circumstances.

  2. Section 1.11.3 (see above at [14(4)(c)(iv)]) provides objectives and controls in relation to the design of car parking; and

  3. Section 1.11.4 (see above at [14(4)(c)(v)] provides guidance on the dimensions of car parking spaces.

  1. As identified above at [24], the expert planners agreed that the Applicant’s proposed concrete wheel strips would not, in isolation of other proposed works, create any adverse impact, which, in addition to their application to the potential character and urban design impacts of the proposed Development, I also take to apply to its potential streetscape and visual impacts.

  2. Noting this, I will address the provisions of each of the individual sections of WDCP identified above at [34], as they apply to other aspects of the Proposed Development, in turn.

Compliance of the Proposed Development with the controls in section 1.11.2 of WDCP

  1. As noted above at [34(1)], under the provisions of section 1.11.2, and in particular section 1.11.2(d), of WDCP Part C1, a car space located forward of the building line is permitted in certain circumstances. Section 1.11.2(d) identifies six such circumstances that must be satisfied in order that a hard stand such as that proposed by the Applicant might be permitted.

  2. Those six circumstances, together with the responsiveness of the Proposed Development to those circumstances, under which a car parking space might be permitted forward of a building, are as follows:

  1. that there is no rear access available, and in this appeal there is no rear access available to the Subject Site;

  2. that the site is of sufficient width where the car space will not dominate the existing building by it not exceeding 45% of the width of the site frontage. In this appeal the expert planners agreed that the Proposed Development complies numerically with this control;

  3. that the proposed car space is no greater than a single car space, which is the case for the Proposed Development;

  4. that public views should not be adversely affected, and in the current appeal:

  1. Ms Elijah expressed concern that the public views of the dwelling on the Subject Site and its adjoining pair would be adversely affected by the Proposed Development, in particular in relation to the cut out of the front verandah and front bedroom required for the proposed hard stand car space. Notwithstanding this, Ms Elijah also agreed that:

  1. the views of the potential cut out would be intermittent from the opposite side of the street;

  2. the timber fence of the adjoining, upside property and 30 Barclay Street would block the view of the cut out for a pedestrian walking down Barclay Street;

  3. the cut out would not be visible from the adjoining pair dwelling;

  4. that the proposed vegetation included in the Applicant’s landscape plan would provide some screening to the cut out.

  1. Mr Moody said that:

  1. the verandah cut out would have minor visual impact in its own right;

  2. any view of the cut out by a passer-by would be transitory and insignificant in terms of the overall view of the Subject Site as a consequence of the mitigating effect of the Applicant’s proposed fence and landscaping;

  3. even with the proposed re-positioning of the verandah corner post the building on the Subject Site and the adjoining building will continue to be read as a pair.

  1. having considered the evidence of the expert planners, and having taken a view of the Subject Site at the commencement of the hearing, I am satisfied that:

  1. the Proposed Development will not adversely affect public views for reasons provided by Mr Moody in his testimony, which I adopt;

  2. as agreed by Ms Elijah, views of the potential verandah cut out would be intermittent, and the existing and proposed fencing, as well as the Applicant’s proposed landscaping, will mitigate any potential public view impacts.

  1. that there is a predominance of this form of off-street car parking in the immediate vicinity of the Subject Site, and in relation to the current appeal I am satisfied that this is the case, based on:

  1. the evidence in the hearing, including an analysis of car parking facilities in the area tendered as evidence by the Applicant; and

  2. my view of the Subject Site and its immediate vicinity undertaken at the commencement of the hearing.

  1. that the distance between the building and the front property boundary be of a minimum of 5.4m. This is not the case for the Proposed Development as the distance between the building and the front property boundary is approximately 4.5m.

  1. In summary, it is my assessment that the Applicant’s Proposed Development satisfies five of the six circumstances required such that a hard stand might be permitted forward of the building line on the Subject Site.

  2. Notwithstanding my assessment above at [39], the Applicant’s Proposed Development provides an alternative solution to address the remaining unsatisfied circumstance identified in section 1.11.2(d) of WDCP Part C1. This alternative involves the partial removal of the front verandah and a portion of one bedroom, which the Applicant submits achieves the objects of section 1.11 (see above at [14(4)(c)(ii)]), consistent with the provisions of s 4.15(3A) of the EP& A Act.

  3. My assessment of the Applicant’s Proposed Development in terms of its achievement of the objects of section 1.11 of WDCP Part C1 s provided below at [47] to [49], and because I am satisfied that it does achieve those objects, for the reasons provided, I am also satisfied that the Applicant’s proposed Development is compliant with the provisions of section 1.11.2 of WDCP Part C1.

Compliance of the Proposed Development with the controls in section 1.11.3 of Part C of WDCP.

  1. The Parties advised, and I accept, that the relevant controls in section 1.11.3 of WDCP Part C1 with which the Applicant’s Proposed Development must comply are controls (a), (b) (c) and (i).

  2. I am satisfied that controls (a), (b) and (i) of this section are satisfied, but that control (c) is not satisfied for the following reasons, which, in part, draw on my assessment of the evidence and my consideration (above) of other provisions of WDCP:

  1. the car parking is designed to complement the style, massing and detail of the dwelling to which it relate (as required under control (a) because:

  1. the proposed style and detail of the fence to the proposed car space are consistent with that of the existing street presentation of the Subject Site, and of its adjoining pair;

  2. the Applicant’s proposed landscaping plan is acceptable to the Respondent, and, as confirmed by the evidence of the expert planners, with which I agree, will assist to mitigate any view impacts of the Proposed Development;

  3. the dimensions of the proposed hard stand car space are such that they satisfy the requirements of control (ii) of section 1.11.2(d), and, as a consequence, satisfy objective (d) of section 1.11 of Part C of WDCP, confirming that the proposed car space does not dominate the existing built or landscape character of the street, and which, in my opinion, is satisfactory to demonstrate that it complements the massing of the dwelling on the Subject Site;

  4. the Proposed Development does not involve the construction of any above ground structure to challenge the massing of the dwelling on the Subject Site.

  1. the car parking is sympathetically integrated into the design of the residence and will be secondary in area and appearance to the primary residence and the adjoining pair, which is a related site, as required under control (b), for the same reasons as provided above at [1];

  1. the design of the proposed gate/fence will be consistent with the fence that would otherwise occupy the area proposed for the gate to the car space. Further, it will provide for surveillance of the street and will not open over the footpath, public nature strip or pedestrian path to the front door of the Subject Site, as required under control (i).

  2. the Applicant’s proposed design for its car space requires the removal of a part of the verandah to accommodate the parking of a car on the Subject Site, and so is in contravention of control (c) of section 1.11.3 within WDCP Part C1 which provides that:

“No element of the street façade/frontage of a building, including verandahs and window awnings, are to be removed or demolished in order to accommodate car parking.”

  1. However, consistent with my consideration above at [40], and as identified above at [10], the provisions of s 4.15(3A) of the EP&A Act, require that a consent authority, or the Court on appeal, must be flexible in applying the controls of a DCP and must allow a reasonable alternative solution that achieves the objects of those controls for dealing with those aspects of the Applicant’s Proposed Development.

  2. The consideration of the Applicant’s Proposed Development’s achievement of the relevant objects of control (c) in section 1.11.3 of WDCP Part C1, are the same as those identified above in relation to section 1.11.2. Those requirements are considered below at [47] to [49], and because I am satisfied that it does achieve those objects, for the reasons provided, I am also satisfied that the Applicant’s proposed Development is compliant with the provisions of section 1.11.3 of WDCP Part C1.

Compliance of the Proposed Development with the controls in section 1.11.4 of

  1. I am satisfied that the Applicant’s proposed development is compliant with the provisions of section 1.11.4 of Part C1 of WDCP because:

  1. the Applicant’s proposed hard stand car space does have minimum dimensions of 5.4m x 2.4m per vehicle;

  2. the Applicant’s proposed car space will accommodate a vehicle within the Subject Site without the vehicle or vehicle appendages overhanging the public domain; and

  3. the Applicant has proposed the use of an internal sliding gate that will ensure the enclosure within the Subject Site of any vehicle using the space.

Consideration of the Proposed Development’s achievement of the objects of section 1.11 of WDCP as required under s 4.15(3A) of the EP&A Act.

  1. The objectives of section 1.11 of Part C1 of WDCP apply to both control (iv) of sections 1.11.2(d) and control (c) of section 1.11.3, and were identified above at [14(4)(c)].

  2. Having considered the evidence before me in this hearing, and having undertaken a view of the Subject Site with the Parties, it is my assessment, that the Applicant’s Proposed Development represents an acceptable alternative solution because, consistent the provisions of s 4.15(3A) of the EP&A Act, it achieves with the objectives of section 1.11 of WDCP in the following ways:

  1. it provides convenient and accessible parking that is appropriately designed and located, for reasons provided above at [28] and [46], consistent with objective (a);

  2. it achieves a high standard of urban design, as evidence by my findings above at [29], consistent with the first limb of objective (b);

  3. it retains visual quality of lower density residential accommodation, streetscapes and landscapes, as evidence by my findings above at [35], [37] and [43], and consistent with the second limb of objective (b);

  4. it protects the amenity and safety of pedestrians as the design of the Proposed Development provides the required dimensions for a car parking space and it includes a sliding gate/fence that will ensure enclosure of the vehicle within the Subject Site, consistent with the provisions of section 1.11.4 of Part C of WDCP, and also consistent with objective (c);

  5. it does not dominate or adversely impact on the existing built or landscape character of the street as evidenced by my conclusions above at [29], consistent with objective (d);

  6. in replacing one on-street car space with one off-street car space, it continues to encourage the use of alternative modes of transport to the extent that is currently achieved by the existing development on the Subject Site. As a consequence, in my assessment, to the extent that it is able, it achieves objective (e). I note that while the general area of the Subject Site is serviced by public transport, in the form of buses, I am not satisfied that the availability of that public transport in the vicinity of the Subject Site is such as to warrant it being characterised as “well serviced”, which term is used in defining the applicability of control (e).

  7. it does, in my assessment, minimise impacts of additional vehicular crossings by requiring the addition of one crossing in respect of the singular hard stand car parking space proposed by the Applicant, which will see one on street car parking space replaced by one off street car parking space.

  1. I conclude that:

  1. notwithstanding its non-compliance with two controls within section 1.11 of Part C1 of WDCP, the design of the Applicant’s proposed car parking space is an acceptable alternative solution that, in my assessment, achieves the objects of that section of WDCP, consistent with the provisions of s 4.15(3A) of the EP&A Act.

  2. As a consequence of my conclusion above at [(1)], and my earlier conclusions (see above at [41], [45] and [46]) that the Applicant’s proposed Development is consistent with the controls in sections 1.11.2, 1.11.3 and 1. 11.4 of WDCP Part C1, the potential streetscape and visual impacts, and remaining potential character and urban design impacts, of the Proposed Development are acceptable.

Will the proposed development establish an undesirable precedent for future development in the locality?

  1. The Respondent had contended that the Proposed Development, if approved, would create an undesirable precedent that may lead others in the area to seek a similar approval for further hard stand car parking spaces within their front setbacks.

  2. In my assessment, the specific circumstances of this case are such that any approval of the Applicant’s Proposed Development would not establish an undesirable precedent for future development in the locality for the following reasons that are specific to the current appeal and which are unlikely to be present in the circumstances of other lots in Barclay Street or in its vicinity:

  1. this appeal concerns an application for introduction of a single car parking space for one part of a semi-detached dwelling house in relation to which the Respondent Council has already granted consent for significant alterations and additions, specifically in relation to to its first floor presentation;

  2. Council’s existing approval for alterations and additions to the first floor presentation of the dwelling on the Subject Site has already, in my assessment, disrupted the symmetry of the dwelling with respect to its adjacent semi-detached pair;

  3. the relatively minor nature of the works proposed by the Applicant in relation to the proposed car parking space would not, in my assessment, provide any further significant disruption to the symmetry of the pair of dwellings;

  4. the design of the Proposed Development, taken together with its unique setting within its particular portion of Barclay St, have facilitated an outcome that:

  1. has acceptable character and urban design impacts;

  2. is consistent with the character of the dwelling on the Subject Site, and with the nature of car parking arrangements in the vicinity of the Subject Site;

  3. successfully mitigates potential streetscape and visual impacts of the Proposed Development through a unique combination of factors that means that all works associated with the Proposed Development are unlikely to be viewed by pedestrians and others passing the Subject Site in other than a transitory fashion. These mitigating factors include:

  1. a mixture of existing fencing arrangements on adjoining sites;

  2. the proposed fencing and landscaping plans for the Subject Site;

  3. the specific topography of the Subject Site and its immediate vicinity.

  1. the nature of parking arrangements in Barclay Street is eclectic, containing as it does, a mixture hard stand car parking within front and side setbacks, together with garages that are both stand alone in some circumstances, and integrated with the design of dwellings in others, and the Proposed Development will sit comfortably within this eclectic mix of car parking arrangements.

  1. I also note that I have already concluded that the Applicant’s Proposed Development will not have unacceptable impacts in relation to character, urban design, streetscape and landscape, and, as such, is not, in my assessment, objectionable in itself, a factor which has been identified by the Court as relevant in the consideration of a precedent submission in an appeal (see Lloyd J at [28] in Goldin & Anor v Minister for Transport Administering the Ports Corporation and Waterways management Act 1995 [2002] NSWLEC 75).

  2. I conclude that the approval of the Applicant’s Proposed Development will not create a precedent such that it would form a basis for the Court to refuse consent to the Applicant for its Proposed Development.

  3. The Respondent, in its closing submissions, said that the Applicant’s Proposed Development should not be approved for reasons that included that it might be read as inconsistent with at least one other decision of the Court by a Commissioner in the matter of Finney and anor v Waverley Council [2015] NSWLEC 1527 (Finney).

  4. I do not embrace that submission because:

  1. in my assessment, each application should turn on its individual merits, and the merits of this appeal differ from those considered by the Commissioner in Finney, including in relation to the locations, site topographies and other circumstances of the two appeals; and

  2. I note the decision of Tobias JA (Beazley JA and Basten JA agreeing) in Segal and Another v Waverley Council [2005] NSWCA 310; 64 NSWLR 177, in which His Honour stated (at [56]) that, notwithstanding the desirability of consistency in administrative decision making:

“It follows from the above discussion that Commissioner Watts was neither obliged to accept the Council's submission that consistency in administrative decision-making required him to follow the decision of Commissioner Moore, nor was he obliged to refer to that decision in order to then distinguish it on its facts or to otherwise opine that it was wrong. This is not to say that it was not desirable for Commissioner Watts to have referred to that decision given the somewhat unique circumstances under which the two decisions were made: on the contrary, his doing so may well have avoided the present appeal. Nevertheless, it cannot be said that he committed an error of law in failing to refer to it.”

Conclusions

  1. Having considered the submissions of the Parties, and the evidence of the experts, I am satisfied that:

  1. the potential urban design and character impacts of the proposed development are acceptable for reasons provided above at [29], [37] and [43];

  2. the potential streetscape and visual impacts of the proposed development are acceptable for reasons provided above at [37], [43] and [46];

  3. the Applicant’s Proposed Development is an alternative solution that, notwithstanding its non-compliance with control (iv) of section 1.11.2(d) and control (c) of section 1.11.3 of Part C1 of WDCP, achieves the objects of section 1.11 of WDCP, and so is acceptable under the provisions of s 4.15(3A) of the EP&A Act for reasons provided above at [48];

  4. the Applicant’s proposed development will not establish an undesirable precent for future development in the locality for reasons provided above at [51].

  1. Consequently, I conclude that the Applicant’s proposed development is in the public interest and should be approved.

Orders

  1. The Court orders that:

  1. The Applicant is granted leave to amend its plans.

  2. The appeal is upheld.

  3. The Applicant’s development application DA-306/2018 is determined by the grant of consent, subject to the condition attached at Annexure A.

  4. Exhibits are returned, except exhibits A, B and 1.

……………………….

M Chilcott

Commissioner of the Court

Annexure A (405 KB)

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Decision last updated: 30 January 2020

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Cases Citing This Decision

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Segaert v Waverley Council [2020] NSWLEC 1658