Panoyan v Woollahra Municipal Council

[2011] NSWLEC 1081

Land and Environment Court

New South Wales

Medium Neutral Citation:

Panoyan v Woollahra Municipal Council [2011] NSWLEC 1081

Hearing dates:

3 February 2011

Decision date:

03 February 2011

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

Appeal No: 10680 of 2010

1. The appeal is upheld.

2. The application under s 96 of the Environmental Planning and Assessment Act to modify development consent (638/2008) for 90 Windsor Street, Paddington, is approved. The consent is modified as set out in Annexure A.

3. The exhibits, except Exhibits 2, 4, A, C and D, may be returned.

Catchwords:

APPEAL:- s 96 application. Adequacy of car access.

Legislation Cited:

Environmental Planning and Assessment Act, 1979

Category:

Principal judgment

Parties:

APPLICANT
Lee Panoyan

RESPONDENT
Woollahra Municipal Council

Representation:

APPLICANT
Mr G Green, Solicitor

RESPONDENT
Mr J Merlino, solicitor
APPLICANT
Pikes Solicitors

RESPONDENT
Lindsay Taylor Lawyers

File Number(s):

10680 of 2010 and 10844 of 2010

Judgment

1. COMMISSIONER: These are two appeals against the refusal by Woollahra Municipal Council of applications under s 96 of the Environmental Planning and Assessment Act 1979 to amend development consent (DA 638/2008) for alterations and additions to an existing dwelling at 90 Windsor Street, Paddington.

1. Appeal number 10844 of 2010 relates to the s 96 application (DA 638/2008/3) which seeks to amend the consent as follows:

Replace metal balustrade with glass balustrade to the rear elevation of the first floor rear wing and replace cement rendered painted rear elevation with timber cladding to the rear elevation of the first floor wing.

1. Appeal number 10680 of 2010 relates to the s 96 application (DA 638/2008/2) which seeks to amend the consent as follows:

Air-conditioner condenser unit relocated above second bedroom and provide an onsite parking space.

1. The works sought by both applications have been carried out.

1. The site, its locality, the history of the applications and the planning controls are in the Statement of Facts and Contentions.

1. A conciliation conference under s 34 of the Land and Environment Court Act was held on site on 19 January 2011. No agreement was reached and the parties greed to the Court disposing of the proceedings under s 34(4)(b)(i) and that the site visit and evidence on site are evidence in the proceedings.

1. The majority of the issues between the parties have been resolved through amendments, which include treatment of the glass balustrade, painting of the timber cladding and deletion of the air-conditioning unit. The only matter in dispute relates to the provision of parking on site and conditions sought to be imposed by council.

1. In their joint report on traffic, Mr Y Wise, for the council, and Mr M Logan, for the applicant, agree:

....the vehicle crossing access driveway can be constructed to comply with the requirements of council's Standard Drawing, RF2B, and the relevant guidelines in the Australian Standard AS/NZS 2890.1.2004. This can be dealt with by a Conditions of Consent.

1. The only outstanding issue between the experts relates to the encroachment of the parking space into the adjoining property at 88 Windsor Street and the provision of landscaping within this area.

1. The width on title of 90 Windsor Street is 3.05m. The survey (Exhibit B) indicates that the fence of 92 Windsor Street encroaches into 90 Windsor Street and that 90 Windsor Street then encroaches into the 88 Windsor Street.

1. Mr Wise is concerned that compliance with the 3 m width requirement of AS/NZS 2890.1.2004 is dependent upon the encroachment with 88 Windsor Street. He is also concerned that a 200mm landscape strip is located within this encroachment, which reduces the effective parking width required by the Standard.

1. Mr Logan considers that the encroachment is not a parking matter provided the 3 m width is maintained. Further, he states that the landscaping does not restrict access to and from the vehicle and could be planted with bushes no higher than 150 mm.

1. Council has proposed a condition (C.1.f), which requires that the vehicle shall only be parked on the site subject to it being wholly contained within the boundaries of the site. The applicant has also proposed the additional requirement that the car parking space shall maintain a width of 3 m for the life of the development. Further, the adjoining owner of 88 Windsor Street has agreed to the lodgement of the s 96 application and to the landscape strip within their property (Exhibit C).

1. I am satisfied that the proposed vehicle can be located wholly within the site and that a minimum dimension of 3 m can be maintained. The title of the land is 3 m wide and the physical width of the site is 3 m, with the encroachments. The car space can therefore be provided on site and comply with the requirements of the Australian Standard.

1. I accept Mr Logan's evidence that the landscaping within the 3 m width does not interfere with access to the vehicles and there is no reason that it should be deleted. The site visit clearly demonstrated that a B85 vehicle can satisfactorily access the site and that the vehicle can also be accessed.

1. The only other condition in dispute (C.1.g), relates to the provision of a landscape strip at the southwest end of the parking space. The strip is required for the site to comply with the landscaping requirements for the site under the DCP and is therefore retained.

Orders

1. The orders of the Court in relation to Appeal No. 10844 of 2010 are:

(1)   The appeal is upheld.

(2) The application under s 96 of the Environmental Planning and Assessment Act 1979 to modify development consent (638/2008) for 90 Windsor Street, Paddington, is approved. The consent is modified as set out in Annexure A.

(3)   The exhibits, except Exhibits 3, 5 and E, may be returned.

1. The orders of the Court in relation to Appeal No. 10680 of 2010 are:

(1)   The appeal is upheld.

(2) application under s 96 of the Environmental Planning and Assessment Act 1979 to modify development consent (638/2008) for 90 Windsor Street, Paddington, is approved. The consent is modified as set out in Annexure A.

(3)   The exhibits, except Exhibits 2, 4, A, C and D, may be returned.

Annelise Tuor

Commissioner of the Court