O'Connell v Waverley C

[2005] NSWLEC 478

Land and Environment Court

of New South Wales

CITATION:

O'Connell v Waverley C [2005] NSWLEC 478

PARTIES:

APPLICANT
Malcolm O'Connell

RESPONDENT
Waverley Council

FILE NUMBER(S):

10477 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Construction of a garage - ancillary works - parking - landscaping - view lossses.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

19/08/2005

EX TEMPORE JUDGMENT DATE:

08/19/2005

LEGAL REPRESENTATIVES:

APPLICANT
Ms Vicky La, solicitor

RESPONDENT
Mr G. Hartley, solicitor
of Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

19 August 2005

10477 of 2005 Malcolm O’Donnell v Waverley Council

JUDGMENT

1 The appeal was lodged against council’s refusal of a development application for construction of a garage at the front of the property, and ancillary works including a landscaped terrace above the garage, at No. 130 Warners Avenue, Bondi Beach. The full details of the proposal are contained in the Statement of Basic Facts, which I rely on.

2 A number of issues were identified initially for the appeal which can be summarised as follows:

• parking in terms of the new garage requiring a new footpath crossover, which effectively reduces on street parking;
• landscaping reduction due to the new garage replacing existing open space area; and
• view losses.

3 For the appeal, the parties agreed to Mr P Drew being the Court appointed expert for planning and he has prepared a detailed assessment of the proposal, which results in his conclusion that the proposal merits conditional consent.

4 The application has also been assessed by the council planning officers, who state that the application has been notified and there are no public submissions received and consequently the DBU have recommended the proposal for conditional consent.

5 After further consideration of the matter the parties have presented consent orders to the Court.

6 By reference to Mr Drew’s comprehensive assessment of the proposal which includes a summary of the prevailing LEP/DCP controls relating to urban design streetscape and other design considerations I am satisfied the proposal is permissible with consent.

7 With regard to the parking issue Mr Drew says:

6.3 Council’s parking permit scheme permits up to three permits per dwelling reducible by each off street parking space available at a property where the two cars are registered for the property and if two off-street parking spaces were available there being no additional permits available to this resident of the unit. As a consequence of this development therefore there will be two less cars occupying on-street spaces.

6.4 The proposal will result in the loss of a single on street space yielding a nett reduction in demand for on street spaces. Given residents obtaining preferential access to these spaces it is logical to conclude that there will be a nett improvement in access to on-street spaces will be a principal benefit to local residents.”

6.5 I do not support the conclusion that the proposal will exacerbate the parking problem for residents of the area and on the contrary the proposal will lead to an improvement in the availability of on-street parking for local residents.

8 On the basis of the parties agreement to the consent orders, I accept Mr Drew’s conclusion that the proposal now represents a reasonable balance between on-street parking and on-site parking. Therefore this issue is not such as to warrant refusal of the application.

9 Likewise with the necessity to construct the extra footpath crossover, Mr Drew has assessed that and says that:

“the existing footpath in front of 130 Warners Avenue, is concreted and there is a good line of site up and down the footpath no alteration of this will occur as a result of the development.
The local environment and additional danger proposed by new vehicle crossing is very small and negligible in the urban environment of Bondi Beach. I do not consider that the number of children passing the site is so significant nor the likely safety issue so adverse as to outweigh the urban design and parking supply merits arising from the development. This matter does not, in my view, warrant refusal of the subject application.”

10 I accept these conclusions as fair and reasonable in this case.

11 Again he deals with the initial issue of the loss of 1 car space in the area where parking is said to be at a premium and his conclusion is that the loss of one car space, metered or otherwise, in this case will actually improve access to scarce on-street parking. The proposed tandem car garage relies on a single car width crossing as opposed to the less desirable alternative of double width side by side crossing. The proposed development is therefore considered to be consistent with the effective functioning of the residential preferential parking scheme and the relevant design considerations of 4.1 of DCP 14 which states:

“On-street parking supply is protected by minimising impacts of additional vehicle crossings.”

12 In the absence of any challenge, I accept Mr Drews conclusion as reasonable.

13 Regarding the other issues in terms of the loss of open space landscaping, again Mr Drew’s opinions are unchallenged. He says at 6.19:

6.19 The grassed area and plant bed to be removed as part of the proposal cannot be considered a notable deep soil area within the locality as it is small, situated on the southern side of the building and will therefore be considered unlikely to ever provide a suitable environment for canopy trees. Furthermore the open space is hardly visible from the street and provides a negligible contribution to water infiltration to the water table.

6.20 Whilst I would agree that deep soil areas are rare in this locality the proposal will provide for useful and accessible outdoor recreational space and will not detract from significant deep soil areas in the locality. I would not refuse this application for this reason.”

14 Accordingly, I accept this opinion as reasonable, considering the balance between the amenity of the proposed terrace, which is to be landscaped and which will improve the streetscape amenity.

15 Having considered the evidence, and the various submissions, which includes support for this proposal by council’s DBU, I note Mr Drew’s final conclusions,

8.4 There are several identifiable merits associated with this development proposal including enhancing access for other residents to scarce on-street car parking spaces. This point is noticeable as there appears to be some apparent tension between the parking policy supplied to occupants of new development which is very restrictive and that given to occupants of older development which is far more generous. Given the subject situation falls within the latter group the merit of this proposal with regard to reducing demand for on-street parking is an important point that in my view favours approval of the subject proposal.

8.5 The proposal is appropriate for the site and will provide a positive outcome and I believe it is in the public interest as evidenced by council policies and merit of the proposal. I support the approval of the subject proposal.

16 I then rely on these conclusions to grant the following consent orders.

1. The appeal is upheld.
2. Development application DA 428/04 for alteration and additions including new garage and terrace at 4/130 Warners Avenue North Bondi is approved subject to conditions in annexure A.
3. No order as to costs.
4. The exhibits may be returned except for Exhibit 1, 3, A, Folio 17, 18 of Exhibit 2.

______________________

R Hussey

Commissioner of the Court

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