Penny Lee v North Sydney Council - [2004] NSWLEC 6

Land and Environment Court

of New South Wales

CITATION: Penny Lee v North Sydney Council [2004] NSWLEC 6

PARTIES:
APPLICANT
Penny Lee
RESPONDENT
North Sydney Council

FILE NUMBER(S): 11164 of 2003

CORAM: Watts C

KEY ISSUES:
Development Application :- Whether car parking should be permitted in the front yard

LEGISLATION CITED: North Sydney Local Environmental Plan 2001, (NSLEP2001)
North Sydney Development Control Plan 2002, (NSDCP2002)
Environmental Planning and Assessment Act 1979, ss79C, 97

CASES CITED:

DATES OF HEARING: 16/01/2004

EX TEMPORE
JUDGMENT DATE : 01/16/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr R Creighton, agent
RESPONDENT
Mr A Panuccio, solicitor
instructed by North Sydney Council

JUDGMENT:

11164 of 2003

Watts C

16 January 2004

Penny Lee
Applicant
v

North Sydney Council
Respondent

Judgment

1 . This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the refusal by North Sydney Council (the council) of a development application to construct a new car parking space, 1.8m high front fence and facade on land at No 21 Park Avenue, Neutral Bay.

2 . The hearing was held on site and at the council.

The land
4 The land is situated on the eastern side of Park Avenue between Ernest Street and Military Road. It is rectangular in plan shape, and has a frontage to Park Avenue of 5.33m, a depth of 35.815m / 35.845 and an area of 183.4m2 and is largely level with a 2m step down at the rear.
5. Erected on the land is a single-storey semi-detached brick dwelling that shares a common wall with No 23 Park Avenue. A garage below the garden level is located at the rear with access from a laneway that is part of the Big Bear Centre and which connects with Ernest Street. A garden area has been established at the rear beside the bare concrete roof of the garage.
6. Nearby single-storey attached dwellings of a similar style and vintage to that on the land predominate. On the same side of the street, Nos 15 and 23 Park Avenue have on-site car parking located in front gardens.

Relevant planning controls

North Sydney Local Environmental Plan 2001, (NSLEP2001)
7. Under the provisions of the NSLEP2001 the land is zoned Residential A2 and the proposal, as ancillary to a dwelling house, is permissible with consent. The land is within the North Cremorne Planning Area.
8. Clause 14 of the NSLEP2001 states that development consent must not be granted unless the consent authority is satisfied that the proposed development would be in accordance with and promote the character of the neighbourhood within which the development is carried out.
9. The North Cremorne Neighbourhood Area Character Statement Schedule 2 of NSLEP2001 applies.
10. Clause 20 of NSLEP2001 requires a landscaped area should be 50% of the site area.

North Sydney Development Control Plan 2002, (NSDCP2002)
11. NSDCP2002 in Exhibit 2 provides for more detailed planning controls than those in the NSLEP2001.
12. Relevant is cl 7.4(i) of NSDCP2002 Location of car parking; Vehicular access (cl 7.4(j) of NSDCP2002); Front fences (cl 7.3(g) of NSDCP2002); and Front gardens (cl 7.4(n) of NSDCP2002).

The proposal and its history
13. Development application No 377/02 was originally lodged with the respondent council on 5 July 2002. The council requested further information including a SEPP 1 objection to the landscaped area standard of the NSLEP2001. This was received on 7 August 2002.
14. It is proposed to construct a new car parking space, front fence and facade on land at No 21 Park Avenue, as shown on plans numbered 204/1 and 204/2, dated 19 April 2002, drawn by J Gretan in Exhibit B. [Note: The plans show the proposed car space would accommodate a small car such as a ‘Honda Civic’. Mr North said the proposed car space would be 2.3m wide and 3.75m and 4.15m long to the front edge of the verandah, or to the wall of the house 5.3m and 5.65m.]
15. Prior to the development application being lodged a petition signed by the applicant and 35 other residents sought safety measures for residents and pedestrians using Park Avenue. The petition included:

Front gates of houses on Park Avenue should not open onto footpath and obstruct pedestrian access;
Cleared vegetation to be removed immediately and not left on footpath;
Flashing hazard lamps to be fitted to trailers parked long term in Park Avenue; and
Provision of more streetlights.

Notification
17. The application was notified on 12 July 2002 to nearby owners and occupants and one (1) submission was received from the Parks Precinct that expressed sympathy with the circumstances of the family involved and requested a site meeting.
18. Mr C Taylor, the council’s aged and disability worker stated, [Note: Exhibit 6]:

Access for some frail aged residents could be difficult as the footpath/street are narrow;
An accessible parking space would assist access for the frail aged to the premises at No 21. However it would not guarantee accessible parking for the household at No 21 at all times. I am not supportive of private accessible parking areas on public streets;
A driveway would significantly improve access for people who were frail or with limited mobility. It would also provide some parking for carers from Home and Community services; and
This matter was discussed at the last Access Committee held on 8 August 2002 where it was recommended that a site meeting be held.

.

In relation to parking and vehicular crossing as shown on Dwg 204/1, the following needs to be addressed:

The parking space for disabled parking is to have a minimum width of 3.2m and length of 5.4m to AS 2890.1. This means that there shall be no physical obstruction within this space
The width of the vehicular crossing shall be reduced to a length of 3.8m from wing to wing. The crossing as indicated on the above plan, takes up the whole frontage of the property. This is undesirable as it reduces the number of on-street parking spaces.

The council’s decision

The hearing
21. The appeal was filed on 22 September 2003 and is a deemed refusal.
22. At the hearing the court heard evidence on behalf of the respondent council from:

Mr A Nixey, Senior Assessment Officer, North Sydney Council;

Mr P C North, architect.

The issues

1. Whether the proposal fails to satisfy clause 14 of North Sydney Local Environmental Plan 2001 (NSLEP) in that the development is not in accordance with the character of the neighbourhood and would therefore be incapable of approval under NSLEP.

2. Whether the proposal is unacceptable having regard to its non-compliance with the landscaped control contained in clause 20 of NSLEP.

3. Whether the Applicant's objection made under State Environmental Planning Policy No 1 - Development Standards , (SEPP1) properly identifies and addresses the breach of clause 20 of NSLEP.

4. Whether the Applicant's SEPP1 objection should be upheld.

5.

Whether the proposed car parking space and front fence would have a detrimental impact upon the character and appearance of the streetscape having regard to

("NSDCP"), as it relates to the following clauses:

i.

Location of car parking (cl. 7.4(i) of NSDCP);

ii.

Vehicular access (cl. 7.4(j) of NSDCP);

iii.

Front fences (cl. 7.3(g) of NSDCP);

iv.

Front gardens (cl. 7.4(n) of NSDCP).

6.

Whether the proposed car parking space is unacceptable as it does not satisfy the minimum dimension requirements of Australian Standard 2890.

The evidence and findings

Whether car parking should be permitted in the front yard
26. Mr Nixey was of the opinion that the proposal would cause detrimental visual impact in the streetscape. In particular, he considered that the proposed 1.8 m high front fence and the significant reduction in the garden setting of the dwelling on the land would impact upon the character and appearance of the streetscape of Park Avenue.
27. He accepted that other properties in Park Avenue have been provided with car parking spaces and high front fences and these would be contrary to the present controls of the council, that seek to achieve better development in landscaped settings.
28. Mr North took a different tack, based on his understanding of the application. He referred to the plans in Exhibit B and stated that by inserting a car parking space and landscaping, there would be an increase the amount of landscaped area at the front of the dwelling. He indicated that the ground of the front area would be paved with isolated pavers or stepping stones, with native grass in grass cell, grown between the flagstones, even under the car space,. He said that the front verandah would be restored to its original Federation style and the picket front fence to 1.8m would be similar to others in the street. He had calculated that out of 18 properties in the street 12 had front fences to 1.8m in height. He concluded that the proposal should not be refused consent on the basis of issue 1 as it would be in character with the neighbourhood.
29. I accept the evidence of Mr Nixey that the proposal for a car parking space in the front setback of the dwelling would downgrade the appearance of the street and would not leave, as much area for planting as presently exists. I am convinced that the pavers proposed by the applicant would be not an acceptable solution and in time might be replaced by continuous paving. This would be especially so if disabled access is sought.
30. In terms of the calculation of landscaped area I prefer the evidence of Mr Nixey that the landscaped area would be reduced if the proposed car parking space were allowed. I am satisfied that with the original front fence in place, the front area could be considered a landscaped area. The brick pavers are set on sand and planting exists to the sides making it an area for the use and enjoyment of the occupants of the dwelling.
31. The difference in approach of the applicant revolves around whether there is an increase in the amount of landscaped area or not. I prefer the evidence of Mr Nixey that it is likely to be reduced if the proposal were permitted. I consider there would be greater scope for landscaping the front area if there were no car parking space.
32. In order to achieve the council’s goal of reducing the impact of fencing in the streetscape, a lower than 1.8m high fence would be appropriate and this would only be possible if no car was parked in the front setback. Otherwise the car would dominate the frontage of the property.
33. I am satisfied that the proposal would not promote characteristic landscaping and streetscapes, would diminish the amount of useable private open space for the enjoyment of residents, would reduce the extent and potential for a landscape buffer between adjoining properties, and reduce the possibility of promoting substantial landscaping, including trees.
34. I would refuse the application for reason of non-compliance with the objectives of cl 20 of the NSLEP2001.
35. Based on the evidence of Mr Nixey the proposal would also fail to meet the Location of car parking (Exhibit 2 cl 7.4(i) of NSDCP2002); Vehicular access (Exhibit 2 cl 7.4(j) of NSDCP2002); Front fences (Exhibit 2 cl 7.3(g) of NSDCP2002); and Front gardens (Exhibit 2 cl 7.4(n) of NSDCP2002).

SEPP1 objection
36. The applicant filed a amended SEPP1 objection to the 50% landscaped area standard of the NSLEP2001, [Note: Exhibit A pp 8, 9 and 10].
37. The amended SEPP1 objection was based on the calculation of the existing landscaped area being 1.3% of the site area and the proposed being 12.9% of the site area. However, Mr North who had prepared the SEPP1 objection maintained that the objection should still be upheld even if the Court found that these calculations were incorrect and more in line with those of Mr Nixey, for the council.
38. The evidence of Mr Nixey was that the proposed front car parking space would reduce landscaped area on the land by 5.1% (8.8m2) from currently 17.9% to proposed 12.8%. This he pointed out would be significantly deficient of the 50% required by cl 20 of NSLEP2001 for sites of the size here under 500m2.
39. The amended SEPP1 objection was based on the landscaped area objectives of the NSLEP2001 contained in cl 20. Specifically to:

(a) promote characteristic landscaping and streetscapes, and

(b) provide useable private open space for the enjoyment of residents, and

(c) provide a landscape buffer between adjoining properties, and

(d) maximise retention and absorption of surface drainage water on site, and

(e) ...

(f) promote substantial landscaping, including trees which will grow to a minimum height of 15metres and

(g)

...

(h)

...

40 . The applicant maintained that objective (a) of NSLEP2001 would be met by removing the existing unsympathetic front verandah infill and reinstating the Federation street frontage; by removing the excessive amount of hard paved area at the front; erecting a front fence consistent in height and materials to those of neighbouring properties.

41 . The applicant contended that objective (b) of NSLEP2001 would be met by providing open space at the front of the property on either side of the proposed car space.

42 . The applicant maintained that other relevant objectives would also be met at least in part by the proposal.

43 . Mr Nixey did not agree and in respect of objective (a) he stated that to provide a car space in the middle of the front area would negate any gains in providing additional landscaping. He was of the opinion that a car parking space in the front would diminish the area available for useable private open space for the enjoyment of residents.

44 . He was of the opinion that there might be engineering solutions to providing rear lane access thus the need of the applicant for direct access could be addressed. In Exhibit 5 p 7 he stated that “…stair lift or other adaptation may provide a solution to the current owners in this instance”.

45 . He was of the opinion that landscaped area available for use and enjoyment especially with the original fence in place, could be soft landscaped at any time. He referred to a photograph taken before the front fence had been removed, that showed more soft landscaped area than paving, with trees overhanging the paved area. If there were no car parking permitted in the front area, he maintained, the area could be soft landscaped more extensively, but once approved for parking it would be unlikely to revert to landscaping. He considered this reduction in landscaped area to be ‘unacceptable’.

46 . He concluded that the amended SEPP 1 objection to cl 20 of NSLEP should not be upheld as the applicant has not adequately justified non-compliance with the standard or proved that compliance with the standard would be unreasonable or unnecessary in the circumstances of the case. He considered the objection to be not well founded.

Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001

Hooker Corporation Pty Limited v Hornsby Shire Council

.

..it seems to me that SEPP1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection well founded? In relation to the fourth question, it seems to me that one must look to see whether a development, which complies, with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.

The 50% landscaped area requirement of the NSLEP2001 is a development standard;
The underlying purpose of the standard is as set out above and in cl 20 of the NSLEP2001;
Compliance with the development standard [of 50% of the site area] would be consistent with the aims of the Policy, and in particular compliance with the development standard would not tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. To reduce the limited amount of landscaped area by inserting a car parking space in the front yard would cause greater deficiency in landscaped area and would be unreasonable in the circumstances of this case, on the evidence of Mr Nixey. I prefer that evidence, to the evidence of Mr North and I am inclined to the view that even though the front area was brick paved on sand it could still be considered as landscaped area. It is an area greater than 1.5m in width and has side landscaping and until recently had been screened by a high front fence and private;
Compliance with the landscaped area standard would not be unreasonable or unnecessary in the circumstances of the case;
The objection is not well founded.

49 . As the objection is not well founded I must refuse the application on this ground as well.

Orders
51. My orders are:

The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.
The State Environmental Planning Policy No 1 objection to the landscaped area standard in the North Sydney Local Environmental Plan 2001 is not upheld.
Development application No 377/02 originally lodged with the respondent council on 5 July 2002 and amended on 7 August 2002 to construct a new car parking space, 1.8m high front fence and facade on land at No 21 Park Avenue, Neutral Bay, is refused consent.
The exhibits with the exception of Exhibits 7 and B are returned.

Commissioner of the Court

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Penny Lee v North Sydney Council [2004] NSWLEC 6

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CITATION:	Penny Lee v North Sydney Council [2004] NSWLEC 6
PARTIES:	APPLICANT Penny Lee RESPONDENT North Sydney Council
FILE NUMBER(S):	11164 of 2003
CORAM:	Watts C
KEY ISSUES:	Development Application :- Whether car parking should be permitted in the front yard
LEGISLATION CITED:	North Sydney Local Environmental Plan 2001, (NSLEP2001) North Sydney Development Control Plan 2002, (NSDCP2002) Environmental Planning and Assessment Act 1979, ss79C, 97
CASES CITED:
DATES OF HEARING:	16/01/2004
EX TEMPORE JUDGMENT DATE :	01/16/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr R Creighton, agent RESPONDENT Mr A Panuccio, solicitor instructed by North Sydney Council