Robinson, Kirk v Leichhardt Council
[2007] NSWLEC 16
•16 January 2007
Land and Environment Court
of New South Wales
CITATION: Robinson, Kirk v Leichhardt Council [2007] NSWLEC 16 PARTIES: APPLICANT:
Kirk Robinson
RESPONDENT:
Leichhardt CouncilFILE NUMBER(S): 10716 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application - Subdivision :- Pedestrian and vehicular safety in lane and stacked car parking condition LEGISLATION CITED: Leichhardt Local Environmental Plan 2000, (LLEP)
Leichhardt Development Control Plan 2000, (LDCP)
Environmental Planning and Assessment Act 1979, ss79C and 97DATES OF HEARING: 11/12/2006
DATE OF JUDGMENT:
16 January 2007LEGAL REPRESENTATIVES: APPLICANT:
Mr I Hemmings, barrister, instructed by
Mr B Watts, solicitor
SOLICITORS:
Baker Ryrie Rickards TitmarshRESPONDENT:
Ms J Walsh, solicitor
SOLICITORS:
Pike Pike & Fenwick
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
16 January 2007
10716 of 2006 - Kirk Robinson v Leichhardt Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Leichhardt Council (the council) of a development application to alter and add to an existing residential flat building of seven (7) dwellings to reduce the number of dwelling units to three (3) and to strata subdivide at Lot B, DP 420842, being No 40 Cove Street, Birchgrove.
2 I visited the land in company with the parties on the morning of the hearing and I heard from local residents, some of whom supported the development.
3 I have concluded that the application should succeed.
The land
4 The land is situated to the west of the junction of Cove and River Streets, at Balmain. It has a street address to Cove Street and partly fronts an unmade section of that street, adjacent to the Parramatta River. The land is largely rectangular in plan and the length of the northeastern boundary to Cove Street is 24.28m, of the southeastern boundary to River Street is 16.765m, the rear splayed boundary is 18.25m and the land is 350.3m2 in area.
5 Erected on the land is a three-storey building that accommodates seven (7) dwelling units. The building was originally a two-storey brick dwelling and has had numerous additions over the years.
6 No on-site car parking is presently provided. A large Eucalyptus is located at the northern corner of the land. The survey indicates that the site slopes one metre from its frontage with River Street at 18.44m AHD to the rear of the site at a level of 17.46m AHD.
7 The area is residential and is characterised by a mix of single-storey and two-storey dwellings and two-storey and three-storey townhouses.
8 To the northeast is the unmade section of Cove Street. The residential flat complex known as Mariner's Cove is located across Cove Street at Nos 2-6 Louisa Road, Birchgrove. This comprises a number of two-storey red brick residential flat buildings with a basement garage accessed from Cove Street.
9 To the southeast the land fronts River Street that not much more than a lane about 4.4m wide. On the opposite side of River Street is No 36 Cove Street. This dwelling is a two-storey timber and fibro dwelling that has the appearance of a single-storey dwelling with attic level fronting Cove Street and two storeys to the rear, with a single storey skillion side addition to River Street. The single-storey addition of this dwelling is built onto the River Street frontage and a set of gates that gives access to the rear of this property would be located directly opposite the entrance to the proposed stacked parking area at No 40 Cove Street. The rear section of No 36 Cove Street comprises a sandstone wall to River Street - this wall is setback about 1.8 metres from the side of that dwelling.
10 To the northwest and southwest (side and rear): There is a residential flat complex known as Nos 18-20 River Street. This development is about five-storeys in height and steps down the slope to the Parramatta River. The aspects of the development that are visible from River Street include the double garage, hardstand parking areas, entrance gate and vestibule and landscaping. Views of Parramatta River are available from River Street over the adjacent property.
Relevant planning controls
Leichhardt Local Environmental Plan 2000, (LLEP)
11 Under the provisions of the LLEP the land is zoned Residential and the proposal is permissible with consent. Under cl 18(3) of LLEP alterations and additions to approved dwellings, are permissible development.
12 The land is located in a heritage conservation area under the LLEP and is located within the Birchgrove and Ballast Point Heritage conservation area under Draft Local Environmental Plan 2000 (Conservation and Heritage Provisions). The land is located within 40 metres of the Parramatta River and involves works to a residential flat building; therefore the proposal was formerly integrated development under the Rivers and Foreshores Improvement Act 1948, (RFI).
13 River Street is uncoloured on the zoning map to the LLEP and cl 38(1) and (2) of the LLEP provides:
- Development on public roads - clause 38
(1) A person must not carry out development on a public road shown uncoloured on the Zoning Map, or part of such a road lawfully closed, without the development consent of the consent authority.
(2) The consent authority may grant its consent under subclause (1) only for a purpose that may be carried out either with or without development consent on land adjoining that road.
14 Clause 19(2) of the LLEP relates to floor space:
- Except where the development is carried out in accordance with clause 23(1), consent must not be granted to the carrying out of residential development on land within a density area if it will result in the floor space ratio exceeding the ratio shown for the density area .
15 In this part of Balmain the FSR is 0.7:1.
16 Clause 19(3) of the LLEP deals with landscaped area and states:
- Except where the development is carried out in accordance with clause 23(1):
- Landscaped area means the part of a site area at ground level:
(a) not occupied by any building above or below ground, and
(b) not overhung by part of a building with a clearance of less than 2.4 metres, and used for recreation, lawns, gardens and substantial planting. It does not include balconies, driveways and parking areas, but includes decks where they have a direct connection to ground level and are no higher than 500 millimetres above ground level.
17 The objectives of the LLEP are in:
· Clause 13 - General Objectives.
· Clause 15 - Heritage Conservation Objectives.
· Clause 17 - Housing Objectives.
18 Clause 16(8)(iv) of the LLEP deals with specific controls and in particular the conservation area:
- Consent must not be granted for the demolition, reconstruction, adaptation or erection of a building, the carrying out of a work, or the subdivision of land, within a conservation area unless the consent authority has made an assessment of the extent to which the carrying out of the development would affect the heritage significance of the conservation area, with particular regard to:
(a) the heritage significance of any building, work, relic, tree or place, archaeological site or potential archaeological site or aboriginal site that would be affected, and the contribution it makes to the conservation area, and
(b) the compatibility of the proposed development with the conservation area, including the size, form, scale, orientation, siting, materials, landscaping and details of the proposed development.
19 The following State Environmental and Regional Planning Policies are relevant:
· State Environmental Planning Policy No 1 - Development standards;
· State Environmental Planning Policy No 55 - Remediation of land;
· Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005; and
· Draft State Environmental Planning Policy (Application of Development Standards) 2004.
Leichhardt Development Control Plan 2000, (LDCP)
20 The LDCP is relevant in the consideration of the proposal:
· Part A2.0 - Urban Framework Plans
· Part A3.0 - Principles of Ecologically Sustainable Development
· Part A4.0 - Urban form and design
· Part A5.0 - Amenity
· Part A6.0 - Site Analysis
· Part A7.0 - Heritage Conservation
· Part A8.0 - Parking standards and controls
· Part A10.6.6 - Birchgrove/Elkington Park Distinctive Neighbourhood, Rozelle.
21 The relevant distinctive area controls to the proposal include:
- Ensure that any development does not overwhelm the capacity of adjacent laneways, any development utilising laneways should include provision for upgrading of laneways to current engineering standards. Conserve and complement the established streetscape with regard to setbacks, street trees and general lack of driveway crossings.
22 The desired future character statements include:
- New/expanded driveway crossings shall be discouraged. Driveway crossings will only be supported where they are servicing single width garages and they do not involve excavation of sandstone features.
23 Other parts of the LDCP that are relevant include:
· Part B1.1 - Site layout, subdivision and design
· Part B1.2 - Building form, envelope and siting
· Part B1.3 - Car Parking
· Part B1.4 - Site drainage and stormwater control
· Part B1.5 - Elevation and Materials
· Part B1.6 - Front Gardens and Dwelling Entries
· Part B3.5 - Acoustic Privacy.
24 The following development control plans also apply to the proposed development:
· Development Control Plan No 36 (Notifications);
· Development Control Plan No 38 (Waste Minimisation, Removal and Storage).
25 The land is located within the Birchgrove and Ballast Point Heritage Conservation Area under the Draft Leichhardt Local Environmental Plan 2000 (Conservation Areas and Heritage Provisions).
The proposal and its history
26 Development application No D/2005/456 was lodged with the respondent council on 30 September 2005 to alter and add to an existing residential flat building [currently comprising seven (7) dwelling units] to provide three (3) dwelling units on the subject land and to strata subdivide.
27 The proposal involved a double garage with car stacker for four vehicles accessed from River Street. Although the desired future character statement discourages double width car parking this did not remain an issue and the council approved the development and deleted the double garage and car stacker for reasons of pedestrian and vehicular safety.
28 The proposal would have a gross floor area of 411.87m2, on a site of 350.3m2, and would thus have a FSR of 1.17:1 and in breach of this control. A SEPP 1 objection was submitted with the application for this non-compliance. This was not an issue in the appeal.
29 Also, the proposal would not comply with cl 19(3)(a) of the LLEP as less than 40% of the site is landscaped area. The proposal does comply with cl 19(3)(b) of the LLEP as more than 10% of the site area is soft landscaping.
30 The council officers calculated that the existing use of the land has a landscaped area of 124m2. The proposal would reduce this to 100.76m2, because the rear deck of the ground floor is slightly above 500mm in excess of existing ground level. This is because ground level means the level of the ground at 24 October 2000. The council proposed that Condition 5(a) be attached to require the level of part of this deck to be dropped by 300mm, so that it lies within 500mm of ground level, and can be included as landscaped area. This would mean that the current amount of landscaped area provided would not alter. More than 25% of the landscaped area would be natural surface available for soft planting. With the amendments to the plans and as the already developed and would be improved in some respects by the proposal landscaping was not in issue.
Notification
31 The present application was notified to nearby owners and occupants from 7 December 2005 to 21 December 2005 and the council received three (3) letters of objection and one letter of support.
32 The application was referred to the Housing Policy Branch of the Department of Planning under SEPP 10 on 30 September 2005. A condition of consent is proposed requiring the applicant to contribute to low-cost housing in the area.
33 On 7 October 2005 the council requested additional information from the applicants. The council sought a detailed plan distinguishing those part of the building to be retained from those part/s proposed for demolition, showing all walls, floors and roof in plan and elevation, and a structural engineer’s report. The engineer’s report was to certify that the existing structures would support the proposed additions and detailing methods of construction to be used to ensure that the part/s of the building shown to be retained is/are retained.
34 The Department of Planning requested that the applicant supply further information in regard to SEPP 10 and on 28 November 2005.
35 The applicant supplied this information, and on 12 November 2005, the applicant submitted two copies of amended plans and additional information that addressed the information requested by the council.
36 The council’s architect/planner advised on 6 December 2005 that he does not support the proposal. He considered that the three-storey scale was not compatible with the local context and the street frontages are harsh and bulky.
37 On 17 February 2006, the council wrote to the applicant expressing its concern over the amount of demolition proposed, the style, massing and bulk of the proposal, its incompatibility with the prevailing character of the area and non-compliances with the ‘Town Plan’ (LLEP and LDCP).
38 Meetings were held between the applicant and the council's assessment officer on 14 March 2006 regarding amended plans that were submitted on 17 May 2006.
39 The amended plans were notified from 31 May 2006 to 14 June 2006 and the council received three (3) letters. One writer withdrew a previous objection; one reiterated the previous objection and one provided support that had not previously commented on the application.
40 The Department of Planning indicated that the Director-General was prepared to give concurrence to the application subject to conditions:
1 The registered owners’ (‘owners’) voluntary initiative by correspondence dated 20 April 2006 to include a one-off monetary contribution of $21,257.38 (‘the contribution’) for the purpose of mitigating the loss of low-cost rental accommodation proposed by the DA shall be realised as follows:
(a) the owners shall enter into a Deed of Agreement (‘Deed’) with the South West Inner Sydney Housing Cooperation Ltd (SWISH) at the owners' expense;
(b) the terms of the Deed shall be met prior to issuing the Construction Certificate;
(c) the Deed shall specify the following terms:
(i) the contribution is to be paid by the owner to SWISH and;
(ii) the contribution shall be paid by the owner to SWISH in one complete payment.
2. The owners shall provide documentation to Council by way of signed correspondence from SWISH on official SWISH letterhead and receipts that:
(a) the Deed has been entered into between SWISH and the owner; and
(b) the terms of the Deed have been met.
3. Upon compliance with the matters listed in 1 and 2 above, the Construction Certificate may be issued subject to any conditions, not relating to the determination of SEPP 10 concurrence, Council has imposed.
41 On 11 July 2006 the report to the Building and Development Committee recommended the application be approved and the committee resolved that:
- …the item be deferred to the next Balmain/Rozelle Ward Committee meeting on 8 August 2006 for the provision of additional information, including perspective drawings of the development illustrating the proposed screen and provision of a more detailed traffic/pedestrian safety report relating to the car stacker.
42 An internal memorandum was received from the council’s road safety officer advising she did not believe the proposal posed a risk to pedestrians given that the garage entrance would be set back 1.655m from the boundary and the garage door would be at least 6m wide.
43 A supplementary report went to the Building and Development Committee meeting held on 8 August 2006 recommending that the application be approved.
44 A petition containing 39 signatures was presented at the council meeting on 15 August 2006 requesting that the council “…consider the adverse effect on local amenity and the safety of pedestrians including many children and to not grant approval to the proposed 4 car stacker in River Street.”
The council’s decision
45 By notice dated 18 August 2006 the council approved the application and included Condition 5(b) that states:
- …the garage and associated car stacker is not approved and shall not be constructed.
The hearing
46 The appeal had been filed on 17 August 2006 against the deemed refusal of the application and the issue became the applicant’s dissatisfaction with the condition deleting the car stacker. The appeal is de novo.
47 At the hearing the court heard evidence on behalf of the respondent council including that from:
· Mr D Provedores, 2/18 River Street, Balmain, in support of the application;
· Dr L Dolan, of 36 Cove Street, Balmain, [Note: Exhibit 4, Fol 115];
· Mr P Jamieson, of 36 Cove Street, Balmain, [Note: Exhibit 4, Fol 115];
· Mr D Speyer, 34 Cove Street, Balmain, [Note: Exhibit 4, Fol 114];
· Mr A Hansen, 6 River Street, Balmain, in support;
· Ms J Ryall, 3 River Street, Balmain, [Note: Exhibit 4, Fol 119];
· Mr Y Kruzmetra, 3 River Street, Balmain, [Note: Exhibit 4, Fol 119]; and
· Mr C T McLaren, consulting traffic engineer.
48 Mr Speyer stated that he was concerned about safety of pedestrians as was Dr Dole. He said there was a blind corner, and the street was 2-way and narrow. The stacker will make noise.
49 Mr Hansen said that he had lived in River Street for 16 years and never seen any incident of near misses. He said it was good to get the vehicles off the street. It would also improve the visibility of drivers for the next-door garage. He said that he is able to see the pedestrians in the lane.
50 Ms Ryall was concerned for the safety of children using the street all the time. She said that she had seen near misses. She queried whether the stacker would be maintained.
51 Mr Jamieson said that over the 30 years he had been at the address the usage and congestion in the lane had increased. He said that a car had struck his daughter and the lane should be closed or limited to 40kph. He said “why make it worse”? He said that he had looked at a stacker in Mary Street, Glebe.
52 Mr Kruzmetra objected for the safety issue. Also he was concerned for the noise of the stacker. Also there is noise when people back out and notify their intentions by sounding the horn. He asked why not have vehicular access off Cove Street instead.
53 On behalf of the applicant evidence was given by:
· Mr A R Joy, consulting traffic engineer.
The issues
54 On 31 August 2006 the applicant filed a statement of issues:
- Whether Condition 5(b) of the Respondent's Notice of Determination of Development Application No D/2005/456, dated 18 August 2006, should be imposed.
Particulars:
Leichhardt Development Control Plan 2000 (Residential Development) requires car parking for development on this site.
55 The provision of stacked car parking was the salient issue.
The evidence and findings
Car stacker - pedestrian and vehicular safety
56 The council’s case was that Leichhardt Development Control Plan 2000, (LDCP) would require on-site car parking for the development of this land. Minimum and maximum numbers of spaces for residential developments are set under cl A8.0 of ‘Parking Standards and Controls’, [Note: Exhibit 4 p 125]. The minimum [and the maximum] requirement for car parking for this proposal would be three spaces for the occupants and one space for visitors. The applicant proposes four spaces for the occupants and no spaces for visitors. There was no issue regarding this provision, however, the council was concerned that with cars entering the site in a forward direction and leaving backwards, pedestrian safety would be compromised as there is no footpath in this part of River Street.
57 The introduction to cl A8.0 of the LDCP states the aim of the clause is, “To ensure that safe and sufficient parking for all modes of transport is provided to meet anticipated demands”, [Note: Exhibit 4 p 125].
58 Under the heading of the ‘rationale’ of the control, it is stated, “The rates in the following table are intended as a generic guide and may need to be adjusted for local circumstances, employee densities, public transport accessibility and reduced car mode share targets, where appropriate”, [Note: Exhibit 4 p 125].
59 The LDCP also requires, “Car parking, access and service areas shall be in accordance with guidelines prescribed by AS2890.1-off street parking”. [Note: Exhibit 4 p 129].
60 The council maintained that the proposed method of parking is not ‘safe’ as it would not meet the requirements of AS2890.1 - off street parking, because vehicles do not enter and leave the land in a forward direction, and sight distances are inadequate. Also, the council considered that approval of the application would be likely to set an undesirable precedent.
61 Mr McLaren stated, “…the proposal results in doubling of potential conflicts.” However, both engineers agreed that the potential conflicts are low at the moment and the doubling would be off a very small base. During the course of the hearing the design of the proposal was amended to provide for better driver sight lines towards the east and the applicant agreed to Condition 5(b) that reads:
- The applicant shall amend the plans showing a 2.5 metre-viewing strip toward the east as marked on the copy of the plans held by the Court in Exhibit B.
62 Mr Provedores, double garage attached to the strata No 2/18 River Street, Balmain, would be abutting the proposed four-car garage. Mr Provedores gave evidence that the proposal to go ahead since he would have a better view of traffic and pedestrians in River Road towards the east. This easing of the sight lines would reduce any potential pedestrian and traffic conflicts that presently exist.
63 Mr Joy was content, “…that the increase [in pedestrian/traffic conflict] is acceptable because it is small in absolute terms, and is partly offset by improved sight distance afforded to the users of the garage in River Street adjacent the site of the proposed garage and stacker.”
64 Mr Joy was also of the opinion, that given the low volume of pedestrian and vehicle traffic, and the limited manoeuvring space for vehicles exiting the garage, in association with the recommended designation of the relevant section of River Street as a ‘shared zone’ the physical constraints surrounding the proposed garage should not present a serious safety hazard for pedestrians.
65 Ms Zaccari, the council’s road safety officer, wrote in a memo to Ms Cowie, the council’s town planner on 25 July 2006, [Note: Exhibit 4 p 121]:
- I inspected the above site of the proposed car stacker for 40 Cove Street, Balmain this morning as requested.
River Street is a narrow street (approx 4.5m) and functions more as a laneway. It is a major link to the walking route that follows the shoreline. It is used by both locals and others that access the Birchgrove area on foot who prefer to avoid the arterial roads on the ridge. This route will be featured in future walking maps to be produced by Council, which aim to encourage more travel on foot or bicycle. Students from Balmain Secondary School Campus routinely use this route also. Four people were using River Street during my visit this morning.
Given that the entry to the garage is going to be set back by 1.655m from the boundary line and have a garage door that is at least 6m wide I don’t expect that the inclusion of a car stacker for 4 vehicles will pose a problem for pedestrians. Because of the narrowness of River Street [drivers of] vehicles accessing the proposed garage will need to slow down to position themselves to be able to access the garage.
66 With the amendments to the plans to provide for a greater sight distance to the east I would expect, I am satisfied that the proposal would be even safer than anticipated by Ms Zaccari. Although, I have given Mr McLaren’s evidence some weight, I am satisfied that any increase in potential conflicts would be somewhat less than doubled and I would not refuse the application for the reasons put by the council and supported by Mr McLaren.
67 I accept that with a 10km/h ‘shared zone’ along River Street from its junction with Cove Street to some distance beyond the subject land to the west the traffic safety would be improved. To my mind, the need for the ‘shared zone’ cannot be wholly attributed to the impact on traffic and pedestrian safety caused by the proposal. Thus I would not make the requirement of a ‘shared zone’ a deferred commencement condition rather I would ask only that the applicant make his/her best endeavours to obtain such a ‘shared zone’ classification. I have added the ‘shared zone’ to Condition 5(c). If those endeavours come to nought, and there is a reasonable explanation for that result, the applicant might wish to modify the consent.
68 I am satisfied that the design as amended may be approved including the four car stacker. For the above reasons, the appeal is upheld with the original conditions re-engrossed.
Conditions
69 The deferred commencement conditions are those that were attached to the original consent as amended in Exhibit 15.
Orders
70 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No D/2005/456 lodged with the respondent council on 30 September 2005 to alter and add to an existing dwelling and to strata subdivide land at Lot B, DP 420842, being No 40 Cove Street, Birchgrove is approved subject to Conditions 1 to 48 together with those conditions from NSW Maritime in Annexure A.
3. The exhibits except for Exhibits B, D, E, F, 1, 14 and 15 are returned.
S J Watts
Commissioner of the Court
sw
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at
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