Parker Logan Property Pty Ltd v Woollahra Municipal Council

[2017] NSWLEC 1349

Land and Environment Court

New South Wales

Medium Neutral Citation:	Parker Logan Property Pty Ltd v Woollahra Municipal Council [2017] NSWLEC 1349
Hearing dates:	12 May 2017
Date of orders:	05 July 2017
Decision date:	05 July 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is upheld. 2. DA 429/2016/1 for the demolition of the existing buildings and the construction of a residential flat building at 252 -256 Old South Head Road, Bellevue Hill is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1 and A.
Catchwords:	DEVELOPMENT APPLICATION: demolition of the existing buildings and the construction of a new residential flat building - unsatisfactory disabled parking design – construction hours
Legislation Cited:	Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 2014
Texts Cited:	Australian Standard AS2890.1-1993 Australian Standard AS4299-1995 Australian New Zealand Standard ASNZ2890.1:2009
Category:	Principal judgment
Parties:	Parker Logan Property Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: Mr A Boskovitz, solicitor (Applicant) Ms J Hewitt, solicitor (Respondent)   Solicitors: Boskovitz & Associates Solicitors (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2016/369363
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of DA 429/2016/1 for the demolition of the existing buildings and the construction of a residential flat building at 252 -256 Old South Head Road, Bellevue Hill (the site).

2. The council filed a Statement of Facts and Contentions that stated that the application should be refused for the following reasons:

• excessive floor space ratio,

• inadequate side setbacks,

• impact on existing significant tree,

• poor urban design, and

• unsatisfactory disabled parking design, and

• inadequate parking assessment.

3. Following the submission of amended plans, the council was satisfied that the contentions in the Statement of Facts and Contentions were satisfactorily addressed with the exception of the unsatisfactory disabled parking design. The council maintained that the disabled parking was unsatisfactory for the following reasons:

"6.The proposal does not provide adequately designed disabled parking spaces.

Particulars

Council's traffic engineer has raised the following concerns in relation to the design of the proposed two disabled parking spaces:

With reference to architectural drawing titled 'Basement Floor Plan' a number of design deficiencies have been identified with regard to the disabled parking spaces in terms of the following requirements of AS/NZS2890.1 2009, clause 2.2:

• 2400mm wide x 5400mm long for a dedicated space.

• A shared area of 2400mm wide x 5400mm long on one side of the dedicated space.

• Bollard shall be provided in the position as specified in Fig. 2.2 and 2.3."

4. The hearing was conducted on this contention and a condition seeking to extend the council’s normal construction hours.

The site

5. The site consists of three separate allotments, each containing a single storey dwelling-house. Single garages are located immediately adjacent to the street frontage on the 252 & 256 Old South Head Road allotments.

6. The consolidated site provides for a 50.495m south-eastern frontage to Old South Head Road, a 24.4m south-western side boundary, a 24.7m north-eastern side boundary and a stepped north-western (rear) boundary with a total length of 47.2m. The combined site area is 1182sqm.

7. The site rises approximately 5m from the street frontage to the rear boundary and there is a significant Tallowwood tree on the site which is now to be retained.

8. The area is characterised by a mixture of single dwelling-houses and residential flat buildings of varying forms and age.

Relevant planning controls

9. The site is within Zone R3 Medium Density Residential under Woollahra Local Environmental Plan 2014. The proposal is permissible with consent in this zone.

10. Woollahra Development Control Plan 2015 (DCP 2015) applies to the site. Chapter E1 of DCP 2015 provides requirements for Parking and Access. Clause E 1.4.2 provides the residential parking generation rates for residential flat buildings.

11. Clause E1.9.5 Parking Spaces for People with a Disability provides that accessible parking spaces must be provided at a rate in accordance with Part D3.5 of the Building Code of Australia. Also, council may require additional parking spaces for people with disabilities above the rate stated in Part D3.5 of the BCA, as a condition of consent.

12. Clause E1.10.2 states that in implementing DCP 2015, the following Australian Standards apply for the design of parking and loading facilities, unless otherwise specified relevantly states:

• AS/NZS2890.1 Part 1: Off-street car parking:

• AS/NZS2890.6 Part 6: Off-street parking for people with disabilities.

13. The footnote to cl E1.10.2 states that “the most recent version of the Australian Standards should be used”.

14. The BCA is relevant. Part D3.5 states:

D3.5 Accessible carparking

Accessible carparking spaces -

(a) subject to (b), must be provided in accordance with Table D3.5 in-

(i) a Class 7a building required to be accessible; and

(ii) a carparking area on the same allotment as a building required to be accessible; and

(b) need not be provided in a Class 7a building or a carparking area where a parking service is provided and direct access to any of the carparking spaces is not available to the public; and

(c) subject to (d), must comply with AS/NZS 2890.6; and

(d) need not be designated where there is a total of not more than 5 carparking spaces, so as to restrict the use of the carparking space only for people with a disability.

Disabled parking space

The evidence

15. The car parking level of the proposed development (Exhibit A, Sheet S342100 Basement Floor Plan) provides for 22 car spaces consisting of three visitor car spaces and 19 resident car spaces. Two spaces marked “1” and “13” at either end of the row of parking in the basement are identified as accessible parking spaces. These spaces are the same size as most other spaces plus each has an additional width, or shared area, adjoining the basement wall for an overall dimensioned width of 4.2m. The council maintains these spaces do not comply with the requirements for an accessible parking space as they only provide a car space of a width of 4.15m including the dedicated car space and shared area.

16. The joint expert report of traffic and parking by Ms Qian Liu, for the council and Mr Ramy Selim, for the applicant, address the question of the suitability of the disabled car parking spaces. The experts agree that:

• off-street parking design in the plans associated with the adaptable units, at 4.15m in width, satisfies the minimum dimensions specified in cl 3.7.1, cl 3.7.2 and cl 3.7.3 (minimum 3.8 m in width) of AS4299-1995.

• AS 4299-1995 provides design guide for adaptable housing while AS/NZS 2890.6:2009 is the primary design standard on off-street parking for people with disabilities - both standards are relevant.

• the design of the off-street parking associated with the adaptable units should aim to provide best practice to enable wheelchair access to the driver or the passenger.

17. Ms Liu states that cl 3.7.3 of AS4299-1995 refers to AS2890.1-1993 as being superseded. AS2890.1-1993 sets out the minimum requirement for disabled car spaces at 3.2m. AS4299-1995 adopts a more stringent width requirement at 3.8m. The most recent AS/NZS2890.6-2009 has evolved from the previous standards to include the provision of shared areas adjacent to dedicated parking spaces for people with disabilities. The shared areas now provide for new technology associated with the loading and unloading of wheelchairs and occupants by means of ramps or platform hoists fitted to the side or rear of the vehicle. The 3.8m width requirement in AS4299-1995 does not allow adequate access through such side ramps or platform hoists fitted to the side of the vehicle.

18. Ms Liu also states that pursuant to cl D3.5 of the BCA, accessible car parking spaces in a Class 7A building are required to be accessible, according to specification A1.3 of the BCA. The Australian Standard that is referred to in cl D3.5 is AS/NZL2890.6:2009. Ms Liu accepts that the provision of a shared area would result in a further loss of on-site parking spaces by one space, however it is acceptable to reduce the on-site visitor space by one to provide the shared area for each accessible space. The overall departure from council's maximum parking requirement would be four spaces. The impact from this further shortfall is considered minor by Ms Liu given the availability of local on street parking supply, the availability of alternative transport modes and the visitor parking demand being short-term. The overall parking shortfall of four spaces is considered acceptable in the circumstances.

19. Mr Selim states that the proposed adaptable car spaces comprise of a 2.4m wide car space with an additional adjacent shared area of 1.75m, which is 0.65m short of the requirement of a 2.4m shared area as per AS2890.6:2009 (Figure 2.2) however, the proposed overall width of 4.15m is considered to be functional for use as an adaptable car parking space.

20. Mr Selim states that AS2890.6:2009 allows for a shared area of 2.4m x 2.4m to be provided at the end or front of the dedicated parking space for rear unloading/loading of a wheelchair (Figure 2.3) and states, in cl A2.2, that this rear/front shared area is commonly shared with the parking aisle. The proposed adaptable car spaces provides for this rear/front shared area within the parking aisle, thereby providing a facility for rear mechanical unloading and loading of a wheelchair, which is very common in the majority of modified vehicles. In relation to the modified vehicles with side mechanical loading facilities for wheelchairs, Mr Selim notes that this type of facility is more expensive and therefore less common than vehicles with rear loading devices and roof mounted hoists for wheelchairs. Therefore, the provision for rear loading/unloading of wheelchairs to be more common and hence the proposed adaptable car parking spaces are considered to be adequate, as they provide for rear loading/unloading.

21. Mr Selim also states that that the two adaptable car parking spaces are for the sole use of residents who would reside in the two adaptable residential units and are not designed for the purpose of use as a public accessible car space. The residents of the two adaptable units would be aware of the available width of the adaptable car spaces and the provided facility for rear mechanical unloading and loading of a wheelchair, if required. On this basis, Mr Selim concludes that the proposed width of 4.15m for the two adaptable car parking spaces for exclusive resident use is considered to be adequate.

22. Mr Selim notes that compliance with the council’s position would result in the loss of a further off-street visitor car parking space. This is an unnecessary loss of an off-street car parking space in a development which fronts a State Road such as Old South Head Road and does not provide a benefit to residents and members of the public in the surrounding area. This unnecessary loss of an off-street car parking space can be avoided, given that the reasons previously stated.

23. Mr Boskovitz, for the applicant, submits that cl E1.9.5 of DCP 2015 contains the council's requirement for accessible parking. The clause makes reference to Part D3.5 of the BCA. The BCA provides for different classes of development at cl A3. In his submission, the proposed development is a Class 2 building under cl A3. A Class 2 building is defined as:

'a building containing 2 or more sole occupancy units each being a separate dwelling.'

24. Table D3.5 outlines the accessible parking requirements and does not require a building defined as Class 2 building to incorporate accessible parking spaces. Mr Boskovitz submits that it is clear that the controls do not contemplate the provision of accessible parking in buildings such as the proposed development. On the basis that DCP 2015 requires that a development comply with the required accessible parking rates as outlined in Part D3.5 of the BCA, Mr Boskovitz concludes that no accessible parking is required.

25. Further, Mr Boskovitz submits that on the basis that Council can require additional accessible parking spaces above the rate in through Part D3.5, he submits that as the BCA does not require any accessible parking spaces for this type of development, that it would be unusual to require more fully accessible car parking.

Findings

26. The starting point for the provision of accessible parking is DCP 2015. Clause E1.9.5 Parking Spaces for People with a Disability provides that accessible parking spaces must be provided at a rate in accordance with Part D3.5 of the Building Code of Australia. The submission of Mr Boskovitz that as the building is classified as a Class 2 building under the BCA then it does not need to incorporate accessible parking spaces must be rejected. Part A3.3 of the BCA requires each part of the building to be classified separately. I accept Ms Liu’s evidence that the proposed building has a multiple classification of Class 2 and Class 7a. Pursuant to cl D3.5 of the BCA, parking spaces in a Class 7a building are required to be accessible. In addition, Specification A1.3 of the BCA, the Australian Standard that is referred to in cl D3.5 is AS/NZS2890.6:2009.

27. While Mr Selim sought to firstly, rely on AS2890.1-1993 and AS4299-1995 where the accessible car parking would be acceptable and secondly, to suggest the variation to ASNZ2890.6:2009 was acceptable as the spaces were “functional for use as an adaptable car parking space”. Both attempts to support the proposed configuration should be rejected. As Ms Liu states, the additional side width represents the latest thinking associated with the loading and unloading of wheelchairs and occupants from the side or rear of a vehicle. Mr Selim’s statement that the side loading type of facility is more expensive and therefore less common than vehicles with rear loading devices and roof mounted hoists for wheelchairs was not supported by any evidence and even if evidence was provided, I would find it difficult to be convinced that this would be a sufficient reason to vary the standard in AS/NZS2890.6:2009.

28. The reliance on the most up to date standard cannot be reasonably challenged and if there is any doubt, then the footnote to cl E1.10.2 of DCP 2015 specifically requires this to be done.

Construction hours

29. Condition E4 states:

E4 Hours of Work –Amenity of the neighbourhood

a) No work must take place on any Sunday or public holiday,

b) No work must take place before 7am or after 5pm any weekday,

c) No work must take place before 7am or after 1pm (3pm) any Saturday,

d) The following work must not take place before (8am) 9am or after 4pm any weekday, or before 9am or after 1pm any Saturday or at any time on a Sunday or public holiday;

i) Piling;

ii) Piering;

iii) Rock or concrete cutting, boring or drilling;

iv) Rock breaking;

v) Rock sawing;

vi) Jack hammering; or

vii) Machine excavation,

e) No loading or unloading of material or equipment associated with the activities listed in part d) above must take place before (8am) 9am or after 4pm any weekday, or before 9am or after 1pm any Saturday or at any time on a Sunday or public holiday.

f) No operation of any equipment associated with the activities listed in part d) above must take place before 9am or after 4pm any weekday, or before 9am or after 1pm any Saturday or at any time on a Sunday or public holiday

g) No rock excavation being cutting, boring, drilling, breaking, sawing , jack hammering or bulk excavation of rock, must occur without a 15 minute break every hour.

This condition has been imposed to mitigate the impact of work upon the amenity of the neighbourhood. Impact of work includes, but is not limited to, noise, vibration, dust, odour, traffic and parking impacts.

30. The applicant seeks to extend the hours as shown in bold in the above condition on the basis that the development will be finished in a shorter time with the longer hours proposed.

31. While the extended hours could shorten the time for construction, I am not satisfied that it the encroachment into the normal construction hours is appropriate. I accept that the extended hours are likely to intrude into the times where the amenity of adjoining residential properties is likely to be adversely impacted by additional construction noise.

Orders

32. The orders of the Court are:

1. The appeal is upheld.

2. DA 429/2016/1 for the demolition of the existing buildings and the construction of a residential flat building at 252 -256 Old South Head Road, Bellevue Hill is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 1 and A.

____________

G Brown

Commissioner of the Court

16.369363 (C) gtb (834 KB, pdf)

Decision last updated: 05 July 2017