Rossi v Waverley Council

[2007] NSWLEC 609

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:     Rossi v Waverley Council [2007]  NSWLEC 609

PARTIES:
APPLICANT
Marco Rossi

RESPONDENT
Waverley Council

FILE NUMBER(S):    10421     of       2007

CATCHWORDS:   Development Application :- Alterations and additions, streetscape, on street parking, traffic,

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979

CASES CITED:

CORAM:    Tuor C

DATES OF HEARING: 12/09/2007

EX TEMPORE DATE:   12 September 2007

LEGAL REPRESENTATIVES

APPLICANT
Mr M Craig, SC
Instructed by Ms Power
of Deacons

RESPONDENT
Mr M Staunton, barrister
Instructed by Mr Flaterly
of Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

12 September 2007

10421 of 2007     Marco Rossi v Waverley Council

JUDGMENT

1. This is an appeal against the refusal by Waverly Council (the council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify development consent (450/2006) which granted deferred commencement consent for a new three storey dwelling with basement garage (the development consent) at 12 Notts Avenue Bondi Beach (the site).

1. The application seeks to:

   i.delete the vehicle access via an existing easement over the adjoining property, 8-10 Notts Avenue, and provide a new vehicle access directly off Notts Avenue by excavating under the pedestrian footpath.

   ii.            delete condition 2 which states:

   The proposal shall be amended as follows:
   (a)          The additional horizontal excavation to the front and rear on the basement level is to be deleted as notated in red on the approved plans.
   (b)          The proposed air conditioning plant and associated equipment is not permitted to be roof mounted and shall be sited within the building envelope.

2. And instead excavate to create direct vehicle access to the site and enlarge the basement area by excavating to the rear boundary of the site and install air conditioning equipment on the roof.

1. The amendments will necessitate changes to condition 1 relating to plan numbers and additional conditions agreed between the parties.

The site and its context

1. The site is located on the western side of Notts Avenue, opposite the Bondi Icebergs Club. Notts Avenue is a cul de sac, which connects to the Coastal Walk.

1. The site is approximately 6.5m wide and 22.7m deep with an overall area of 121sqm. It is elevated about 2.8m above street level with a footpath at the same level above a retaining wall.

1. The site is currently vacant and has been partially excavated behind the retaining wall to street level in accordance with the development consent.

1. Adjoining development in Notts Avenue is recent three storey townhouse development. The development consent, although for a single house, is of a similar building envelope to this adjoining development. At the rear of the site is a 12 storey residential flat building (53 Campbell Parade).

The planning framework

1. The site is zoned Residential 2(c2) High Density under Waverly Local Environmental Plan 1996 (LEP 1996). The proposal is permissible with consent.

1. Waverley Development Control Plan 2006 (the DCP) also applies to the site.

The issues

1. The key issues in dispute between the parties can be summarised as whether:

   1.the proposed car access is acceptable in relation to streetscape, traffic safety and loss of on - street car parking.

   2.the additional excavation and floor space will adversely impact on adjoining properties and the streetscape.

   3.the location of the air-conditioning unit on the roof has acceptable visual and acoustic impacts.

2. The parties agreed that, in principle, the structural and construction impacts of the excavation could be resolved. Mr Miller, for the owners of 10 and 14 Notts Avenue, the interveners in the proceedings, submitted that if the other issues were found to be acceptable, further detailed conditions and owners consent would be required for the excavation and structural work, prior to a final consent being granted.

1. The parties agreed that I should therefore provide preliminary findings on the other issues and that, if acceptable, the matter be adjourned for the further work required to satisfy the structural and construction issues.

The evidence

1. The court visited the site and heard evidence from residents, representatives of Bondi Beach Precinct and the adjoining owners.

1. Expert evidence was provided by Mr B Varga, traffic consultant and Mr B Brown, town planner, for the applicant and Mr K Nash, town planner, for the council. A joint report on the structural and geotechnical issues was provided by Mr K Leedow, Mr P Redman and Mr G Young. Mr V Fattoretto, acoustic consultant, provided a Statement of Evidence in relation to the noise impacts from the proposed air conditioning units.

   Car access

2. Mr Brown and Mr Nash agreed that the existing concrete wall that supports the elevated footway is the dominant element in the Notts Avenue streetscape at street level.  There are other garage entries in the concrete wall and the overall visual quality of the built elements in the Notts Avenue streetscape at street level is not high.

1. Mr Nash considered that the new opening and driveway would have a detrimental impact on the streetscape by introducing a new element into the concrete wall, which currently exhibits a degree of consistency in colour, texture and scale.

1. Mr Brown considered the proposal to have a positive impact on the streetscape as most buildings have garage doors or vehicular entries at or near the street alignment. This is part of the character of the immediate area. The openings, in the otherwise blank wall, break up its visual bulk and as the proposal is well designed it will improve the appearance of the wall. 

1. In relation to the safety aspects of cars reversing into or from the site, both Mr Brown and Mr Varga considered this to be acceptable and typical for a single dwelling house providing access for two cars.  They stated that the traffic flows in the street were low with slow traffic speeds.  The commercial activity of the Icebergs Club opposite was not likely to conflict with the minimal traffic using the site. The proposal does not cross the footpath as this is elevated above the street and, in their opinion, will not impact on the safety of pedestrians using the footpath on either side of the road or walking down the street itself.

1. Mr Nash considered that the area was not characteristic of a suburban street due to the presence of the Icebergs Club, which generates high levels of traffic at certain times and the high level of the pedestrian usage of the street as part of the Coastal Walk between Bondi Beach and Bronte Beach and the popular Sculpture by the Sea event. Mr Nash considered that in these circumstances it would be less safe for vehicles to reverse from the site, particularly when compared to the approved development where cars are able to enter and exit in a forward direction due to the turntable in 8-10 Notts Avenue.

1. Mr Brown and Mr Varga considered that the loss of one on-street parking space would be offset by the provision of two spaces on site.  Mr Brown noted clause 5.7.1 of the DCP permitted off-street parking to be provided at the rate of two spaces per dwellings of four bedrooms or more.  Census figures confirm that a dwelling of this size would generate a demand for 1.98 car spaces.  The development approval is for only one space on site. Mr Varga stated that due to the constraints on the size of the access opening through 8-10 Notts Avenue, the number of car spaces on site could not be increased.

1. Mr Nash agreed that it was unlikely that more parking could be provided onsite if accessed via 8-10 Knots Avenue but did not agree that the development would necessarily generate a demand for two car spaces or that there would be no net loss in on street parking between what is approved and what is proposed. Further, Mr Nash stated that even if this were the case the on-street space could be utilised by visitors or other residents in the area when not occupied by a resident of the site.

Findings

1. The objectives of cl 5.7 of the DCP relating to Vehicle Access and Parking are relevantly:

   (a)   To ensure that the design and size of off-street parking facilities does not unreasonably detract from the appearance and quality of the dwelling house or streetscape.

   (b)  To maximise pedestrian and vehicular safety.

   (c)  To minimise loss of on-street car parking.

2. The DCP provides strategies and controls to achieve these objectives.  The key disagreement between the parties was whether the proposal met Strategy 5.7.5 which states that:

   Consideration has been given to the provision of dual access driveways and vehicular crossings to minimise the number of crossings and to maximum on-street parking.  

3. The control to achieve this strategy provides that:

   Vehicular crossings to off-street car parking are located so that they provide access to adjacent properties (refer to Figures 88 and 89).

4. Mr Craig SC, for the applicant, submitted that the Figures 88 and 89 and the control were not referrable to this site because they showed shared vehicular crossings providing access to separate sites, whereas the approval required vehicular access over a site in separate ownership, via an easement.  He submitted that the purpose of the control was not to require vehicular access over sites in separate ownership and that such a control would be unreasonable.

1. For historical reasons, an easement exists over 8-10 Notts Avenue for access. I accept that it is a reasonable planning approach to minimise crossovers and garages which is reflected in the objectives of the DCP. However, I do not accept that the circumstances of this particular site and the public benefits of providing access to the site through 8-10 Notts Avenue outweigh the disbenefits to both properties.

1. The additional garage opening is consistent with the character of the street and, if well designed, may actually improve the unsatisfactory appearance of the concrete retaining wall. In addition, the proposal does not disrupt the pedestrian footpath and clearly meets the objectives of the control as it does not unreasonably detract from the appearance and quality of the streetscape.

1. While entering or leaving the site in a forward direction would be optimal, I do not accept that there would be any unacceptable safety impacts on traffic or pedestrians in the street resulting from two cars accessing a single dwelling house.  Such an arrangement is the norm for dwellings.  The requirement in cl 6.4.2 of the DCP that cars enter and leave in a forward direction is not clearly applicable to single dwellings and is not a normal requirement for such development. 

2. While the Icebergs Club and the high pedestrian use of the street are important factors, and the street is clearly not an ordinary suburban street, there is no evidence that suggests two cars entering and exiting a dwelling will result in unsatisfactory traffic and safety issues. A development with a greater number of cars or a driveway that crossed directly over a pedestrian footpath would clearly not achieve the objective of maximising pedestrian or vehicular safety.

1. In relation to the loss of on-street parking, I accept that the proposal when compared to the approval is neutral as the loss of one on-street space is offset by an additional off-street space. I recognise the on-street space would be able to be used by others at times when it is not occupied by the residents of the site.  However, I do not think that, of itself, this is sufficient reason to refuse the application or to conclude that the proposal does not achieve the objective to minimise the loss of on-street parking.

Excavation and floor space ratio

1. Mr Brown and Mr Nash agreed that the structural issues relating to excavation were dealt with by other experts and that the additional floor space ratio (FSR) did not result in any perceivable increase in the bulk and scale of the development.  The proposed gymnasium is below ground level and below part of the site for which excavation has already been approved.  The proposal increases the depth of the excavation but not the extent of excavation over the site. 

1. Mr Nash noted that the excavation did not meet the requirements of the DCP.  His main concern in relation to the excavation was the loss of existing deep soil landscaping in the triangular area at the rear of the site.  He considered that the landscaped area will provide a landscape buffer between the site and 53 Campbell Parade. 

1. Mr Brown stated that as this landscaping is significantly below the adjoining ground level of 53 Campbell Parade, the presence of the gym and skylight and the loss of landscaping will not make a perceivable difference.

Findings

1. The FSR of the approved development is 2.6:1.  The proposal, through the additional excavation, increases the FSR to 2.9:1.  The FSR control in the DCP is 0.92:1.  The additional excavation is entirely below ground and, of itself, will not increase the overall bulk and scale of the proposal.

1. The Council assessment report of the original proposal noted that:

   the envelope size of many nearby developments, and particularly those beside the proposal, is considered to satisfy the DCP objectives of acceptable bulk and scale, being in character with surrounding development and minimising any adverse effects on the streetscape. 

   As well the non-compliance with the FSR Control is considered acceptable in this instance given the residential 2(c2) zoning, the limited size of the site and the compatibility of the design with the development on either side.

2. I do not agree that because floor space is underground it is automatically acceptable.  If this were the case there would be no reason to include it in the calculation under the control.  However, in the circumstances of this case and in the context of the approved development, the increase of floor space is acceptable as it does not increase the bulk and scale of the development nor result in any increase in intensity of use.

1. The loss of the landscape area, through the introduction of the skylight, is acceptable as this area is some six metres below existing natural ground level in an excavated area approved under the development consent. The area is some 8.75 sqm with a depth of soil of about 400 mm. While the section in both the approved plans and the s 96 plan show trees in this area it is unlikely that its size and soil depth in either scenario would have supported landscaping of any significant size sufficient to be appreciated from adjoining properties. The introduction of the skylight or changes to the landscaped area will therefore not be perceivable from anywhere except bedroom 4 of the development and are therefore acceptable.

   Excavation

2. Clause 5.1.1 of the DCP provides controls that limit excavation to within the footprint of the building and to be not within a 1m setback off the side boundaries.  It also provides that:

   excavation is to be limited to encourage good quality internal environment to areas used for habitable and special use purposes, to minimise impact on the amenity of adjoining premises; and to minimise alterations to the existing or natural topography of the site and immediate area.

3. The excavation, both approved and proposed, is within the footprint of the building but within 1m of the side boundary.  The proposal increases the extent of excavation along the boundary that is within 1m. 

4. The underlying purpose of the setback control would be to limit the impact of excavation on adjoining properties.  The owners to the side are represented as parties in the proceedings and in event that agreement is reached that the excavation impact is acceptable, the non-compliance with the numerical controls would be acceptable.

1. The approved excavation alters the existing topography, although not in a manner that is readily discernable for the public domain or adjoining properties.  Within this context the increase in excavation is acceptable.  The experts also agreed that acceptable amenity to the gymnasium area would be achieved by the proposal as it is essentially a non-habitable room.

Air conditioning unit

1. The experts agreed that the air-conditioning on the roof would not impact on views or be of excessive visual bulk.  Mr Nash’s only concern was to ensure that the proposal would not result in unsatisfactory noise impacts.  He agreed that the proposed conditions resolved this issue but still considered that it is preferable that the air-conditioning unit be placed within the building and that condition 2 should remain.

1. Mr Howe of Unit 5B, 53 Campbell Parade was concerned about the appearance of the air-conditioning unit on the roof which he could view from his property.  He cited the air-conditioning units on 8-10 Notts Avenue as being an “eyesore”.

Findings

1. I agree that the air conditioning units on 8-10 Notts Avenue and other buildings in the area are unsightly.  However, the unit proposed for the building is integrated into the design of the roof and the approved lift overrun.  It appears as an L-shaped wall around, and is of a similar height to, the lift overrun.  As such the air-conditioning unit has an acceptable visual impact.  The experts agree that there is acceptable noise impact and no view loss.  On this basis there is no necessity to maintain Condition 2 requiring that the air-condition unit be within the building.

1. The application in relation to these issues is therefore acceptable.
   

Directions

1.The parties are to file by 14 September an agreed timetable for the further for the preparation of the excavation and structural information, owners consent and conditions of consent and further hearing date, if required.

2.If the matters in Direction 1 are agreed between the parties, the orders will be issued in Chambers and no further hearing date is required.

___________________

Annelise Tuor

Commissioner of the Court