Segaert v Waverley Council

[2020] NSWLEC 1658

Land and Environment Court

New South Wales

Medium Neutral Citation:

Segaert v Waverley Council [2020] NSWLEC 1658

Hearing dates:

19-20 November 2020

Date of orders:

18 December 2020

Decision date:

18 December 2020

Jurisdiction:

Class 1

Before:

Smithson AC

Decision:

The Court orders that:

(1) The Applicants are granted leave to amend its plans.

(2) The appeal is upheld.

(3) Development application DA-255/2019 for a new garage and associated works at 65 Blair Street, North Bondi is determined by the grant of consent, subject to the condition attached at Annexure A.

(4) The exhibits are returned except for Exhibits A, B, C, D, J and 1.

Catchwords:

DEVELOPMENT APPLICATION – New garage at front to replace existing garage at rear – semi-detached pair – controls preference rear garages – loss of verge street tree – proposal will increase onsite open space and landscaping ­– streetscape impacts – application of s 4.15(3A) of the EPA Act – precedent

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Waverley Local Environmental Plan 2012

Cases Cited:

Goldin v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75

Nixon v Waverley Council [2019] NSWLEC 1653

Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Texts Cited:

Waverley Council Street Tree Masterplan 2008

Waverley Development Control Plan 2012 (Amendment No 6)

Waverley Tree Management Policy 2019

Category:

Principal judgment

Parties:

Michelle May Segaert (First Applicant)
Karl William Onslow (Second Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
A Hemmings (Applicant)
J Ede (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2020/65539

Publication restriction:

No

Judgment

1. COMMISSIONER: The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by Michelle Segaert and Karl Onslow (the Applicants) and is against the refusal by Waverley Council (the Council) of development application DA-255/2019.

2. The application is for alterations to an existing development which is situated at 65 Blair Street, North Bondi (the site). The site has an area of 230m² and contains a semi-detached dwelling (semi) which is one of a pair: the other semi in the pair being 67 Blair Street. The pair are one of three adjoining pairs of semi-detached dwellings collectively comprising six dwellings, being 59-69 Blair Street (the semi-detached group). This group is distinguishable from the balance of development in this southern section of Blair Street in that they have dual frontage, with rear access available from Hastings Parade.

3. The proposed alterations, comprising the proposed development, involve removing an existing garage accessed from Hastings Parade, and replacing it with landscaped private open space for use by the Applicants at the rear, and converting the sub-floor area at the front of the existing semi for use as a garage to be accessed from Blair Street. Additional landscaping is also proposed at the front and rear of the site, including in the area currently occupied by the garage and the driveway accessing it, as well as tree planting in the central median of both adjoining streets to compensate for the loss of a verge street tree in Blair Street, referred to during proceedings as Tree E2.

4. The appeal was heard under the provisions of s 34AA of the Land and Environment Court Act 1979 (the LEC Act). It commenced onsite where a view was taken of the semi-detached group, other development in the vicinity of the site on both sides of Blair Street, and development at the rear in Hastings Parade. At the site view, measurements were taken of the distance between street trees planted in the verge in front of the site. The use (or otherwise) of the rear of the semi-detached group for off-street parking was also observed.

5. In this regard, it was noted that, whilst a number of the dwellings in the semi-detached group have driveways to their rear, not all had garages, and not all garages that existed appeared to be used as such.

6. A measurement of the garage on the site indicated it had a width which was agreed by the parties to be inadequate in terms of compliance with the current Australian Standard for garage widths and that it could not therefore reasonably be used for off-street parking by the Applicants. It was also noted that a number of the driveways on Hastings Parade which serve the semi-detached group contained parked cars.

7. Mr Onslow explained that the intent of the application was two-fold: to provide parking for his family on-site as they were currently required to park on-street and had a Council permit to do so; and to expand the limited area of private open space at the rear of the semi by landscaping the current garage area for this purpose. He also advised that the Council occasionally booked he and his neighbours in the semi-detached group if they parked in their driveways.

8. The parties agreed that the site is not located within a heritage conservation area and is not a listed heritage item. The same applies to all of the dwellings in the semi-detached group.

9. There were no objections to the proposed development. A letter of support had been lodged with the application from the second semi in the pair, namely 67 Blair Street.

10. Following completion of the view, the parties advised that a conciliated outcome was not possible to resolve the contentions between them and, as required under s 34AA of the LEC Act, the matter therefore proceeded to hearing.

Statutory Considerations

Environmental Planning and Assessment Act 1979

11. In addition to being required to consider the objects of the EPA Act, of specific relevance is s 4.15(1) which requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) …; and

(iii) any development control plan, and

(iiia) …

that apply to the land to which the development application relates,

…

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

12. Section 4.15(3A) of the EPA Act further provides that:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

Waverley Local Environmental Plan 2012

13. Development on the site is also subject to the provisions of the Waverley Local Environmental Plan 2012 (the LEP). The site is zoned R3 Medium Density Residential in the LEP, with the proposed development permissible with consent.

14. The aims of the LEP at cl 1.2 include:

(f) to enhance and preserve the natural environment through appropriate planning, protecting the integrity of natural systems and by protecting existing trees.

Waverley Development Control Plan 2012 (Amendment No 6)

15. Development on the site is also subject to the provisions of the Waverley Development Control Plan 2012 (Amendment No 6) (the DCP).

16. Several provisions of the DCP were cited as of relevance in this appeal as follows.

17. Part B5, titled ‘Tree Preservation’, at its introduction references the Council’s Waverley Tree Management Policy 2019 (the WTMP) as follows:

“The Waverley Tree Management Policy (WTMP) outlines the requirements for all tree and vegetation related activity. Please refer to the WTMP for additional information relating to the protection of trees and the requirements for applicants.

The objectives and controls in this section apply to trees and vegetation on all land. In the first instance, refer to the WTMP for the relevant requirements. Where there is any inconsistency between the WTMP and this DCP, the WTMP prevails.”

18. The General Provisions at section 5.1 of Part B5 include the following objectives which were contended not to be met:

“(a) To ensure the conservation of trees of ecological, environmental, heritage and aesthetic significance.

(b) To ensure development does not impact on the health of a tree on the site or adjoining properties or street trees.”

19. Part B8, titled ‘Transport’, is also relevant with the following statements comprising part of the introduction:

“Car parking is one of the most critical planning and transport issues in Waverley. Wherever possible, Council strongly encourages the use of alternative modes of transport, such as walking, cycling and public transport and continues to work towards providing better transport connections to the area.

The provision of private (on-site) and public (on-street) parking must be managed in an equitable and environmentally sensitive manner that benefits the community as well as the individual.”

20. Part B8 has the following 4 cited objectives:

“(d) To ensure that parking and access do not dominate or adversely impact upon the character of the streetscape, landscape and the development.

…

(f) To ensure on-street parking supply is protected by minimising impacts of additional vehicular kerb crossings.

…

(j) To provide convenient and accessible parking that is appropriately designed and located.

…

(k) To achieve a high standard of urban design and contribute to the amenity of streetscapes and landscapes.”

21. Section 8.1 of Part B8 is titled ‘Streetscape’ and the relevant objectives and controls referenced in the appeal follow:

“Objectives

(a) To ensure the provision of off-street parking is subject to considerations of urban design, streetscape and heritage conservation.

(c) To balance car parking provision and access with urban design and amenity outcomes.

Controls

(c) Car parking and vehicular access must not dominate the streetscape. Landscaping is to be used to soften the impact of such structures/uses.

(d) Car parking and driveway design is to preserve mature and significant trees and vegetation on the site and in the surrounding streetscape.”

22. Clause 8.2.1 of Part B8 contains objectives and controls for vehicle access, of which the following objectives were cited as being relevant:

“(c) To minimise the impact of vehicle access points and driveway crossovers to retain streetscape continuity and reinforce a high quality public domain.

(d) To ensure vehicle entry points are integrated into building design and contribute to high quality architecture.”

23. The following controls in clause 8.2.1 were also considered relevant:

“(a) One vehicle access point per development (including any access for service vehicles and parking for non-residential uses within mixed use developments) is permitted.

(b) Vehicle access is to be from lanes and secondary streets where available, and not from primary street fronts or streets with major pedestrian activity.

(c) Vehicle access points are to be integrated into the building design.

(d) Vehicle access is to be designed to minimise the impact on the street, site layout and the building façade design.”

24. Clause 8.2.2 of Part B8 is titled ‘Car Parking Provision Rates’ and relevantly includes the following objective:

“(c) To establish controls for parking that reflect the characteristics of the area in terms of urban form, land use and proximity to public transport.”

25. The relevant controls at clause 8.2.2 were advised to be as follows:

“(a) Approval for on-site parking will only be granted where the site and locality conditions permit.

(b) Car parking must be designed to complement the design of the building and streetscape to which it relates and incorporate a range of appropriate materials and design.

(c) Car parking structures are to be located behind the front building line to reduce visual impact upon the streetscape.

(d) Driveways and vehicular access should be designed to minimise the loss of onstreet parking wherever possible.

(e) Car park access is to be provided from secondary streets or lanes where possible.”

26. Part C2 of the DCP is titled ‘Low Density Residential Development’ and includes specific provisions which are of relevance in this appeal.

27. Section 2.8 of Part C2 is titled ‘Car Parking’ and contains the following objectives, as well as referenced controls at clauses 2.8.1 and 2.8.2:

“Objectives

(a) To provide convenient and accessible parking that is appropriately designed and located.

(b) To achieve a high standard of urban design and retain the visual quality of lower density residential accommodation, streetscapes and landscapes.

(c) To protect the amenity and safety of pedestrians.

(d) To ensure that car parking accommodation does not dominate or adversely impact on the existing built or landscape character of the street.

(e) To encourage the use of alternative modes of transport in areas well serviced by public transport.

(f) To ensure on-street parking supply is protected by minimising impacts of additional vehicular kerb crossings.

Controls

2.8.1 Design Approach

(a) Approval for on-site parking will only be granted where the site and locality conditions permit.

(b) Car parking must be designed to complement the design of the building and streetscape to which it relates and incorporate a range of appropriate materials and design.

(c) Car parking structures are to be located behind the front building line to reduce visual impact upon the streetscape.

(d) Driveways and vehicular access should be designed to minimise the loss of onstreet parking wherever possible.

(e) Car park access is to be provided from secondary streets or lanes where possible.

2.8.2 Parking Rates

(a) …

(b) …, a reduced rate (or no parking) may be required in the following circumstances, where:

(i) Parking may have a detrimental impact on the character of the streetscape, heritage item or heritage conservation area, or health of a significant tree...

(iv) The access to the on-site car parking will result in the loss of more than 1 on-street car parking space.”

28. The relevant provisions at clause 2.8.3 are reproduced below as an extract of the DCP given they contain images:

29. The cited provisions of clause 2.8.4 of Part C2 were as follows:

“2.8.4 Design

(a) All car parking should be designed to complement the style, massing and detail of the dwelling to which it relates.

(b) Car parking is to be sympathetically integrated into the design of residences and to be secondary in area and appearance to the primary residence and related site.

(c) No element of the street façade/frontage of a building, including verandahs and window awnings are to be removed or demolished in order to accommodate car parking.

(d) Car parking is to preserve the natural features of the site and incorporate substantial screen planting to both the surrounds and any structure facing the street.

(e) …

(f) Vehicle access is not to remove existing street planting without consent. Any street tree approved for removal is to be replaced with two like mature species or Council-approved alternate species, where practicable in front of the subject site. If only one replacement tree is practicable in front of the subject site, the second replacement tree is to be planted preferably in another Council determined location in the street, or on the site itself…”

30. Several provisions of section 2.9 of Part C2 titled ‘Landscaping and Open Space’ were also considered to be relevant to the appeal, namely:

“Objectives

(a) To enhance the amenity and visual setting of the site, streetscape, and surrounding neighbourhood.

(b) To ensure the provision of open space in a size and arrangement that meets user requirements for recreation, service and storage needs, solar access and is well integrated with living areas.

(c) …

Controls

(a) …

(b) A minimum of 40% of the total site area is to be provided as open space.

(c) A minimum of 15% of the total site area is to be provided as landscaped area.

(d) Each dwelling is to have a minimum of 25m² of private open space capable of being used for recreation.

(e) …

(f) A minimum of 50% of the area between the front of the primary building and the street alignment is to be open space.

(g) A minimum of 50% of the open space provided at the front of the site is to be landscaped area.

(h) …”

Contentions

31. At the commencement of the hearing, the Applicants sought leave to rely on amended architectural and landscape plans as the plans now comprising the application, and leave was granted without objection.

32. The purpose of the amendments was to address the contentions of the Council which can be summarised as follows:

1. The development would result in the loss of Tree E2;

2. The parking should remain accessed from Hastings Parade and a garage was therefore not supported accessed from Blair Street;

3. The proposed development would result in unacceptable building and streetscape impacts; and

4. The development was not in the public interest as it would establish an undesirable precedent.

33. During the hearing, oral expert evidence and joint reports were provided:

• on planning matters, by Mr Tony Moody for the Applicants; and Mr Matthew O’Donnell for the Council;

• on traffic engineering aspects, by Mr Craig Hazell for the Applicants, and Mr Cameron Pike for the Council; and

• on arboricultural matters, by Mr Peter Castor for the Applicants, and Mr Malcolm Coote for the Council.

Loss of street tree E2

34. Tree E2 is a hybrid Sydney Blue Gum and Southern Mahogany located in the Blair Street verge which would need to be removed to facilitate the driveway to the proposed new garage.

35. The aboricultural experts disagreed whether the span of the crown of Tree E2 was likely to be filled by the expansion of the adjoining street trees (E1 and E3) so as to mitigate the loss suffered by its removal.

36. These experts also disagreed as to whether the removal of Tree E2 was contrary to cl 1.2 of the LEP or the provisions of Part B5 of the DCP, although the Council did accept that Tree E2 is not ‘significant’ in terms of objective (a) of Part B5: section 5.1.

37. In terms of the planners’ evidence, both experts agreed that the amended landscape plans provided an improvement compared to the existing landscaping of the site, but they disagreed that Tree E2 should be removed.

The Council’s evidence and submissions

38. The Council argued that Tree E2 was a significant and healthy tree which makes a positive contribution to the streetscape. Its removal would be contrary to Part 1.2 of the LEP which aims to enhance and preserve the natural environment through appropriate planning and protecting existing trees. It was also inconsistent with objectives (a) and (b) in clause 5.1 of Part B5 of the DCP. These objectives include to ensure the conservation of significant trees and that development does not impact on the health of adjoining street trees.

39. As the site currently has vehicle access from the rear off Hastings Parade, this access should be retained and Tree E2 could therefore be retained.

40. The Council submitted that Tree E2 made a positive contribution to the character and canopy cover of the locality, was significant in size, scale and form, and formed part of canopy plantings within the Blair Street streetscape.

38. Mr Coote’s evidence was that Tree E2 was 18-30 years old and had further potential for growth, was in fair health with good form, and did not have significant structural defects. He argued that the tree, together with the grouping of trees in this part of the street, created a small wildlife corridor and provided benefits to property owners and pedestrians through shading.

39. He further argued that Tree E2 made a positive contribution to the established streetscape and the proposed planting of replacement trees as part of the development was insufficient justification for its removal. Any replacement trees would take many years before they could achieve a similar streetscape presence. The only reason the tree was sought to be removed was to accommodate the Applicants’ desire to have access to on-site parking from the front of the site contrary to the requirements of section 2.8 of Part C2 of the DCP.

40. Mr Coote also did not agree with the proposed species to be planted as replacement planting in the Blair Street central median nor with some of the landscaping proposed at the rear.

41. Whilst Mr O’Donnell accepted that the street tree characteristic of Blair Street is mixed and eclectic, and that the southern side of Blair Street is characterised by a variation in tree size, species, and spacing, he argued that Tree E2 makes a significant contribution to the visual catchment in the context of the semi-detached group.

The Applicants’ evidence and submissions

45. Mr Castor disagreed that Tree E2 was significant, healthy or large. He considered it had a short (5-15 year) useful life expectancy, was only in fair health and condition, and had a crown which spread over the carriageway of Blair Street. It was not particularly tall for the species compared to a similar tree adjacent to 49 Blair Street which, at 25m, was almost twice its height.

46. In this regard, the tree was not healthy:

1. because of its close proximity to adjacent Trees E1 and E3 which are Broadleaf Paperbarks also in the street reserve, with which it competes;

2. given its location adjacent to the Blair Street kerb and gutter;

3. as a consequence of recent sewer upgrade trenching works within its tree protection zone; and

4. given the influence of salt laden winds from the south east which have skewed the crown to spread some 10m over the carriageway.

47. Mr Castor referenced the Waverley Council Street Tree Masterplan 2008 (the masterplan), produced in association with the WTMP, which specifies that, for tree planning, selecting the most appropriate species for planting is very much about ‘planting the right tree in the right location’. In this case, the site is located within Zone 2 of the masterplan and Tree E2 is not one of the recommended species for that zone.

48. Having regard to the definition of a ‘significant tree’ in the masterplan, in oral evidence, Mr Coote had also agreed that Tree E2 was not ‘significant’, ‘major’ or ‘dominant’ in terms of the wording of the controls, nor was it a preferred tree species for replacement planting in Zone 2. He also agreed that the species and location of Tree E2 is not ‘the right tree in the right location‘. The tree was likely planted as a result of previous Council policies some time ago and trees such as E2 were no longer favoured by the Council as street trees, as they require maintenance due to branches dropping on private property or adjacent footpath and roadways. He therefore accepted that the tree’s overhang of the carriageway could pose a risk to road users.

49. Mr Coote also accepted that the Council’s policy of planting smaller street trees is now reflected in the masterplan and he agreed with Mr Castor that any replacement tree in the central median could be a Scribbly Gum or another preferred species as listed for Zone 2 in the masterplan.

50. Ms Hemmings submitted that the Council had not had regard to its own tree management policy (the WTMP) or associated masterplan, which exist to give effect to the objectives in the LEP and DCP, and prevail over DCP tree controls. She argued that Mr Coote’s oral evidence confirmed that Tree E2 was inappropriately located in terms of planting ‘the right tree in the right location‘.

51. The Court was also taken to recent examples of developments in the area where the Council had approved trees to be removed to facilitate on-site parking, albeit rear access may not have been available, and asked to note that, in undertaking works on Blair Street at the Seven Ways intersection, the Council itself had removed more substantial street trees than Tree E2.

52. Ms Hemmings also submitted that the DCP does not preclude street tree removal at clause 2.8.4(f) of section 2.8 of Part C2. Rather, it only requires consent for such removal and replacement with approved mature species. In this regard, the DCP references the removal and replacement requirements of the WTMP which the Council had not even addressed. In oral evidence, Mr O’Donnell accepted that the DCP control at Part C2; 2.8.4(f) is not a prohibition on the removal of street trees for the purpose of parking but rather requires a merit assessment. He also accepted that the proposed trees to be planted meet this control.

53. It was further submitted that the Council had considered the removal of Tree E2 in isolation and had not taken into consideration net positive gains from the development in terms of new tree planting, despite this proposed planting being consistent with the masterplan.

54. By contrast, Mr Castor did consider the development as a whole and found it to be consistent with both the LEP and the DCP. It retains 9 existing trees and proposes 6 replacement trees for the removal of Tree E2 which was of minor ecological, environmental or aesthetic value, given its short stature and close proximity to adjacent substantial retained trees. Its removal would promote the growth of these adjoining trees as the current 5m separation is inadequate and is suppressing their growth. The Applicants had agreed to replace Tree E2 with a Scribbly Gum in the central median of Blair Street where there is a ‘gap’ between trees and the ability to view the property from the opposite side of the street.

55. In Mr Castor’s opinion, the street tree characteristic of Blair Street was eclectic with a variety in size, spacing and species of trees. The experts had also agreed that the street trees planted on the southern side of the street, being the side on which the site is located, were not uniformly spaced.

56. In oral evidence, the experts agreed that Tree E2 provides only a minor positive contribution to this character and to the canopy cover in the locality. Mr Coote also accepted that Tree E2 is not the Council’s preferred species for Blair Street and that recent tree plantings are of smaller tree species.

57. Mr Moody also argued that the application results in a range of positive outcomes to the Blair Street and the Hastings Parade frontages. In oral evidence, he noted that Mr O’Donnell agreed Tree E2 does not fall within the definition of a significant tree in the masterplan or for the purposes of the objectives of the DCP and the development does not impact on any trees on adjoining properties or any other trees.

58. He considered that Tree E2 does not make a significant contribution to the visual catchment as it was not of ‘significant size or scale’, as suggested by Mr O’Donnell noting the opinion of the expert arboriculturalists in this regard.

59. Further, the demolition of the existing garage and the conversion of the garage and driveway area for landscaping would create space for a further 4 new trees in the rear frontage, in the rear yard, and in the Hastings Parade verge.

60. In this regard, the planning experts calculated the increased provision of landscaping and open space that would result from the removal of the garage from the rear year and its replacement with landscaped open space, relative to the requirements of the DCP at section 2.9 of Part C2. The percentage of required landscaped area of the site is 15%. Only 7% is currently provided but this would increase to 18.5%, thus becoming compliant. The amount of required private open space of 25m² was already provided but would be improved, and the required area of open space of 40% of the site would improve from a current 22.5% to 34.1%.

61. Finally, the Applicants accepted conditions of consent with respect to tree protection measures and treatment, and the location and species of the replacement trees resulting from the removal of Tree E2, arguing the replacement trees would be ‘the right trees in the right location‘, be consistent with the Council’s current masterplan, and would result in a better outcome given the replacement trees would have a far longer life.

Car parking location

The Council’s evidence and submissions

62. The Council contended that the proposed garage was inappropriately located having regard to the provisions of the DCP. In particular, it would be contrary to the hierarchy of preferred parking locations specified in the DCP, and the provisions of the DCP must be the focal point of the Court’s assessment of the application. Whilst not mandatory, these provisions cannot be displaced without justification, and no such justification existed in this instance.

63. In this regard, the proposed garage is not accessed from the secondary street, that is Hastings Parade, where access to the site is currently provided. The new garage would also impact on the existing semi. Specifically, it requires the removal of part of the front façade, which is not acceptable. This was in addition to requiring the removal of Tree E2, as previously outlined.

64. In essence, the Council submitted that the onsite parking would be in the ‘wrong location’ and would unreasonably detract from the appearance and quality of the existing semi relative to its pair, as well as impact the Blair Street streetscape. Reference was made to controls at section 2.8, in terms of the objectives to be achieved and the design approach that should be taken to achieve them.

65. In addressing these contentions, Mr O’Donnell argued that the proposed garage would alter the design of the existing semi and the appearance of the pair, resulting in an unbalanced pair. Further, it would alter the established character of the semi-detached group, being 59-69 Blair Street, which are all similar in character, not only all being adjoining semis with frontage to Blair Street but also having parking structures and vehicle access provided at the rear from Hastings Parade, with no parking or access provided to the front of the dwellings from Blair Street.

66. It was the Council’s evidence that Blair Street was the primary frontage and Hastings Parade the secondary frontage, and therefore the primary and secondary streets respectively. Although the Applicants did not agree with this categorisation, Mr Hazell accepted that Blair Street was a higher order road then Hastings Parade.

67. In terms of DCP controls at clause 2.8.3 of Part C2, there is a requirement that all onsite parking for new dwellings be located behind the front building line and, for existing development, car spaces should be sited having regard to the hierarchy shown in Figure 11.

68. The Council submitted that the controls clearly provide for a hierarchy of parking with rear access being most preferred and parking in the front setback least preferred. Reading the controls, it is clear that, where possible, parking should be provided to the rear of the site with obvious benefits in terms of the streetscape.

69. The absence of the term ‘secondary street’ in the DCP should not diminish the effect of the controls which require car park access to be provided from secondary streets or lanes were possible, and it was clear that Hastings Parade was the secondary street in this instance. Further, parking access from the secondary street is not only possible but currently exists.

70. The fact that other properties have frontage to Hastings Parade, rather than just rear access, was irrelevant. What was proposed was to provide parking in the most desirable location.

71. Whilst accepting that the existing garage on the site is undersized and not suitable for off-street parking, Mr Pike argued that there were no site constraints that would prevent the Applicants from demolishing the existing garage to the rear and constructing a new suitable garage, hardstand area or carport which would be entirely consistent with the Council’s controls in terms of parking location. If a hardstand area, when not being used for parking, this space could form part of the useable open space in the rear yard.

72. Finally, the proposal alters part of the existing front facade of the semi to accommodate the new garage. This is dealt with further in the following contention regarding streetscape but was argued by the Council to clearly contravene clause 2.8.4(c) of Part C2 of the DCP as it results in an unacceptable streetscape impacts by altering the design and appearance of the pair of semis.

73. In summary, the Council submitted that the reasonableness and necessity of the proposal must be considered in circumstances where there is an existing garage and access to the rear of the site and there is clearly capacity to improve, or redevelop, this facility to make it fit for the Applicants’ purpose.

The Applicants’ evidence and submissions

74. The Applicants noted that the Council had accepted, following oral evidence from the traffic engineers that, should the existing crossing on Hastings Parade be closed (as proposed), there would be no net loss of on-street parking in the locality.

75. In fact, the development would result in a net gain of one car parking space as it will remove the Applicants’ vehicle, which currently parks on the street with a free resident permit provided by the Council given the undersized existing garage on the site. This in an area which the Council accepted on-street parking is extremely limited.

76. Mr Hazell further argued that the proposed off-street garage would provide a convenient and accessible garage for the Applicants, compliant in design and satisfactorily located, thus meeting an objective in Part C2: section 2.8 of the DCP.

77. The traffic engineers agreed that there is no definition or street hierarchy plan which defines a ‘secondary street’. Ms Hemmings submitted that, even if the Court found that Hastings Parade is a secondary street, the objectives of cl 2.8 are nevertheless met and s 4.15(3A) of the EPA Act would apply in that circumstance. In this regard, it was submitted that the Court’s assessment of the overall merits of the development would support setting aside the provision.

78. The planning experts had agreed that the proposed garage is not a dominant feature of the proposed facade and that there were multiple examples of dwellings both in the immediate view and catchment of Blair Street, and in the surrounding locality, with parking features forward of the building line and integrated into the building.

79. Further, pedestrians viewing the semi-detached group from Blair Street would not be aware that parking was available or could be provided from the rear to the semis, as a distinction from access for other dwellings in Blair Street.

80. The Applicants dismissed Mr Pike’s suggestion that a new garage or parking space to the Hastings Parade frontage could have a dual function of parking and outdoor open space. This suggestion was impractical as the outdoor space could never be used when the Applicants were home with their car, and such provision would have undesirable streetscape and landscaping outcomes. A hardstand space would also not be considered landscaped area in terms of compliance with the DCP control for requiring such an area on-site.

81. Ms Hemmings submitted that the proposed provision of new off-street parking was a site-specific opportunity. The site was suitable and capable of accommodating the parking in a sub-floor level without substantial alterations to the dwelling, remaining behind the building line and within the existing envelope, which may not be possible for other dwellings in Blair Street given the topography. This would also enable removal of an unusable garage at the rear.

82. In terms of the applicable controls for vehicle access at Part B8: clause 8.2.1 only one access point is proposed (as required by control (a)); the parking is integrated into the building design (required by control (c)); and the impacts are minimised (as required by control (d)). No safety concerns were raised by the Council and what is proposed is not a garage or hardstand area in the front setback or forward of the building line.

83. Further, what is proposed does not comprise any of the three examples given in the hierarchy for providing parking spaces for existing development shown at Figure 11 in clause 2.8.3. Hastings Parade is not a rear lane and the garage is neither to the side nor is it forward of the front building line. It is rather in a location not contemplated by the controls.

84. In summary, the Applicants’ evidence and submissions were that the proposed parking is appropriately designed and located, will increase the availability of on-street parking, complies with the intent of the relevant controls, and will have a positive impact on streetscapes by removing the garage structure to Hastings Parade and increasing tree planting and landscaping to that street, as well as to Blair Street.

Streetscape impacts

85. This contention overlapped with contentions relating to the removal of Tree E2 and the appropriate location of the parking on the site. Specifically however, the Council contended that the development should be refused due to its unacceptable impact upon the streetscape of Blair Street with the proposed garage in the ‘wrong’ location which would unreasonably detract from the appearance and quality of the existing semi, as well as requiring the removal of Tree E2, thus detrimentally impacting the Blair Street streetscape.

86. This outcome would be contrary to objectives (d) and (k) of Part B8 of the DCP. These seek to ensure parking and access do not dominate or adversely impact upon the streetscape, landscape or development and achieve a high standard of urban design which contributes to the streetscape, noting also that objective (a) of section 8.1 and numerous controls of Part B8 require, inter alia, consideration of urban design and the streetscape in providing off-street parking.

87. The controls preclude access from streets where that is not characteristic, and domination of parking and access in the streetscape, with landscaping required to soften such features, and mature and significant trees preserved. A garage in Blair Street would be uncharacteristic and inappropriate in these circumstances.

88. The planning experts disagreed on the visual catchment that comprised the ‘streetscape’ that should be considered.

89. Mr O’Donnell focussed on the semi-detached group which he claimed was an island of development in this section of Blair Street. He also confined his consideration to the southern side of Blair Street in which the site is located, and he did not consider the Hastings Parade rear frontage of the site in his streetscape considerations.

90. Mr Moody considered this was a very restricted visual catchment and the ‘streetscape’ should not be confined to only 6 dwellings. His wider streetscape included both sides of Blair Street in the block in which the site is situated which is between Mitchell Street to the west and Gould Street to the east. He also argued that the Hastings Parade streetscape should be considered.

91. However, Mr O’Donnell’s justification was that the semi-detached group was relatively unique in terms of the visual catchment of this section and side of Blair Street given the relative uniformity of the group being adjoining semis with rear access. Being similar in character, the semis made a positive contribution to the streetscape. He argued that development on the northern side of Blair Street and beyond the semi-detached group did not have opportunities for rear access and/or comprised a variety of dwelling types and ages, including residential flat buildings. Whilst such development included garages or parking in the front setbacks accessed from Blair Street, it was inappropriate to consider such developments which had no opportunity to provide access from the rear.

85. Further, the new garage would be highly visible from the opposite side of Blair Street and would result in the semi on the site being uncharacteristic and unsympathetic to the other dwellings in the semi-detached group as it will alter the symmetry and appearance of the frontage. Nor will it be sympathetic to the semi pairing of 65 and 67 Blair Street.

86. Mr Moody disagreed that the new garage would be highly visible from opposite the site as the garage would be integrated into the dwelling at sub-floor level within the existing building envelope and front setback. Moreover, there is a distance of some 30m between the buildings on opposite sides of the street, and they are separated by 4 lanes and a central landscaped median.

87. He argued that the Blair Street streetscape according to his visual catchment contains an eclectic mix of developments. Within that mix, there are many examples of garages and carports forward of the building line, which Mr O’Donnell agreed with. Therefore, the proposed development complements the streetscape as required by the DCP, or in other words, is compatible with the streetscape.

88. In this regard, Mr Moody assessed the development against the Planning Principles in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (Project Venture) and concluded that there would be no adverse physical or visual impacts, with the development appearing in harmony with the streetscape of Blair Street. In would also have significant positive outcomes in terms of the Hastings Parade streetscape.

89. He also argued that the only changes proposed to the façade were essentially to remove brickwork for the garage opening and door. By contrast, the other semi in the pair at 67 Blair Street had been rendered and painted, with a first floor window.

90. The Applicants offered to similarly render and paint their semi and provide an appropriate window as well as additional landscaping in the front setback, noting the front setback of No. 67 was heavily landscaped.

91. The planning experts did agree that the amended Landscape Plan would result in an improvement compared to the existing landscaping on the site and that the proposed garage would not be a dominant feature of the semi’s façade. Mr Moody also submitted it would be barely visible above the proposed fence and was partially below the footpath, with the alterations to the façade limited and designed to integrate with the semi neighbouring semi in the pair.

92. In oral evidence, Mr O’Donnell also accepted that the proposed development did not change the streetscape elements of height, setback or landscaping so as to be incompatible with the existing Blair Street streetscape.

93. Finally, the Applicants submitted that what was proposed was modest, and the symmetry between the subject semi-detached pair had already been lost by previous first floor additions to the Applicants’ semi. Further, other than a new window, the garage door in the sub-floor area, and rendering and painting to match the façade of the second semi in the pair, the façade would largely remain as it currently exists.

Precedent

101. The Council contended that the proposed development should be refused as it is not in the public interest, in particular because it will establish an undesirable precedent in the immediate locality.

102. In particular, in addition to seeking departure from a number of DCP controls, the Council’s specific concern was that other dwellings in the semi-detached group could seek to rely on approval of the development for a similar non-compliant development.

103. Reference was made to the consideration of precedent in Goldin v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 (Goldin).

104. The Applicants submitted that, in Goldin, the Court found that, for there to be an undesirable precedent, there must be something “objectionable” about the development in and of itself. For example, in Goldin, it was the “undesirable visual impact on a largely undeveloped shoreline” (at [34]).

105. Therefore, the fact that an approval might form a precedent is not sufficient, of itself, to warrant refusal. To warrant refusal, the precedent must be undesirable in some way.

106. The Applicants submitted that there were four reasons as to why the application was not objectional of itself and therefore approval would not create an undesirable precedent, namely:

1. The Court would find that the impacts of the proposed development are acceptable. On the basis of the evidence of Mr Moody, there are no adverse impacts on adjoining properties or the public domain and the development will have a range of positive outcomes, including to the Hastings Parade frontage. Accordingly, there is nothing about the application that makes it objectionable of itself. Therefore, it could not be described as creating an “undesirable” precedent.

2. The text of the DCP does not reflect a policy that proscribes the type of development sought in this case, which is vehicular access off the Blair Street frontage and a garage within the existing building envelope.

3. The Court would be satisfied from the site inspection and the Applicants’ streetscape analysis that there is already a predominance of properties with vehicular access and car parking off Blair Street within the locality. Accordingly, any precedential effect has already been established.

4. Any future development application must be assessed on its own merits. In this case, the circumstances are peculiar to the site and its context, particularly noting properties to the east of the site have a steeper street verge to Blair Street.

107. Further, the Council’s assessment of this application was inconsistent with respect to its assessment and application of the DCP controls for other recent development applications in the locality. Examples provided by the Applicants (at Exhibit E) including 15 and 17 Hastings Parade. These approvals removed a street tree, in that case listed as a “Preferred” species in the Council’s masterplan unlike Tree E2, and allowed substantial demolition of the front façade of two otherwise symmetrical semi-detached dwellings, which was not what was proposed in this instance.

108. Reference was also made to the Court’s decision in the matter of Nixon v Waverley Council [2019] NSWLEC 1653 (Nixon) where Commissioner Chilcott found no precedent was established. In that matter, and unlike this appeal, a parking space was proposed in the front setback of a semi but that semi had similarly already been altered by a former Council approval comprising a first floor addition, notwithstanding the DCP controls.

109. In terms of other public interest considerations, the Applicants noted that no objections were submitted against the application by the general public and one submission, from the owner of the other semi in the pair, supported the development.

110. It was also submitted that the Court would find that the Council’s suggestion to build a larger garage on the Hastings Parade frontage would in fact represent a significantly worse outcome than the proposed development for both the Applicants and the Hastings Parade streetscape.

111. In summary, the Applicants submitted that the proposed development would be in the public interest as it provides an opportunity to remove an unusable garage from the Hastings Street streetscape and locate parking within the existing building envelope, thus creating a range of positive outcomes including the provision of off-street parking and increased landscaping and deep soil landscaping. In this regard, the development is compatible with previous approvals in the locality.

112. Therefore, the Court would find on the evidence that the proposed development is not only acceptable but represents a significant improvement in terms of:

1. providing safe and convenient off-street parking for the Applicants;

2. providing additional rear private open space for the Applicants’ children to play in;

3. removing an unsightly garage facing Hastings Parade, with its replacement being a garage door behind the building line and integrated into the existing dwelling, which, the Council’s expert planner agreed is not a dominant feature of the proposed façade;

4. improvements to the façade of the dwelling facing Blair Street to better match the adjoining semi at 67 Blair Street;

5. increasing deep soil landscaping on the site from its current, historical non-compliant level to a compliant amount;

6. increasing landscaping and plantings to both street frontages, and in the public domain;

7. providing a significantly more attractive streetscape presentation to Hastings Parade than is presently provided; and

8. improving fences to each street frontage, particularly to Hastings Parade.

Findings

113. The task before the Court, in simple terms, comprises determining the acceptability of a proposal to provide new access and garaging for a dual fronted semi from one street, Hastings Parade, to another, Blair Street.

114. To determine that acceptability, the evidence focused on whether the provisions of the DCP were met and, if not, whether what is proposed remains acceptable having regard to the ability to flexibly apply DCP controls under s 4.15(3A) of the EPA Act.

115. In undertaking that exercise, it is necessary to consider all of the DCP controls that are relevant in the circumstances.

116. Having regard to all such controls and, when considered holistically, I find the development warrants approval and the DCP controls that are not met should be flexibly applied having regard to the ability to do so under s 4.15(3A)(b).

117. Specifically, based on the evidence, reasonable alternative solutions are proposed which achieve the objects of the DCP parking standards and are appropriate in the circumstances.

118. Further, the development will enable other DCP controls applicable to the development, which are not currently complied with and which are not parking standards, to be met.

119. In this regard, I find that there is conflict between the DCP controls which require access and parking to be provided at the rear of sites, where such access is possible, and those that require compliant landscaped and open space areas to also be provided on-site. This is difficult on small sites, such as the site the subject of this appeal. To achieve one outcome, another is compromised.

120. In this regard, it is relevant that the Council’s assessment dealt only with the parking and tree removal controls in the DCP in considering the application and failed to consider other equally relevant DCP controls that warranted consideration associated with the provision of open space on the site and landscaping outcomes as a result of the proposed development.

121. It is also relevant that the Council confined consideration of streetscape outcomes of the proposed parking arrangements on potential adverse impacts to Blair Street but did not consider the potential positive impacts to Hastings Parade.

122. I accept the Council’s proposition that Hastings Parade is the secondary street when considering access to the semi-detached group. However, this group comprises the only properties that have rear access to that street whilst it is the primary frontage for a number of residential properties in the vicinity, being the majority of properties in the vicinity with a Hastings Parade frontage. The streetscape impacts to Hastings Parade are therefore also relevant considerations, not just the impacts to Blair Street.

123. In essence, I agree with Mr Moody that, on balance, the development has a positive outcome whereby, for the loss and replacement of one street tree, minor modifications to the semi, and one additional crossover in Blair Street, the Applicants will obtain a useable on-site garage in lieu of having to park on the street, additional and now compliant landscaped area, and improved private open space. The public realm will also benefit from additional landscaping; visible in the front setback to Blair Street, in the central median of Blair Street, in the planting of the current garage and driveway locations, and in Hastings Parade.

124. I accept that there is access and potential compliant parking available at the rear and appreciate it is Council’s ‘preference’ (the term used by the Council) to provide this where possible. The reasons for doing that in a general sense are to protect the streetscape of a higher order street. However, in Blair Street, such access is limited to only a few properties whilst the balance have off-street parking accessed from Blair Street.

125. Moreover, there are adverse consequences of providing such access and compliant parking at the rear in this instance. It would require even further reduction in the amount and amenity of the private open space and landscaping of the property, whilst (as I outline in my findings shortly) having no material adverse consequences for the Blair Street streetscape and positive outcomes for the Hastings Parade streetscape. In this regard, the proposal removes an unused garage structure, and access to it across the verge used for (illegal) parking, and replace these uses with landscaping and open space.

126. Relevantly, these outcomes achieve DCP objectives and controls not referenced or addressed by the Council which also go to the merits of the application, namely open space and landscape area provisions, which are not currently met in the development on the site but which will now either be complied with, or the degree of compliance improved.

127. This outcome not only improves the amenity of the property for the Applicants but also improves the landscaped and visual impacts of development on and adjoining the property in Hastings Parade.

128. I deal now specifically with each of the contentions.

129. In terms of the removal of Tree E2, I accept that the aims of the LEP at cl 1.2 include to enhance and preserve the natural environment through appropriate planning, protecting the integrity of natural systems and by protecting existing trees. However, achievement of that aim is through consideration of the relevant DCP controls; the majority of which reference compliance with the WTMP and none of which preclude street tree removal for private development.

130. Based on the evidence, the development will not require the removal of, or impact on, any mature or significant tree, as only Tree E2 is impacted and it is agreed to be neither mature nor significant. Whilst its removal impacts ‘the health of the tree’, having regard to the objectives for tree preservation at DCP Part B5, section 5.1(b), as the tree is agreed to be not ‘significant’, section 5.1 objective (a) is either not applicable or is met.

131. Similarly, the Council relied on the provisions of Part B8 of the DCP at control (d) of section 8.1 whereby parking and access is to preserve ‘mature’ and ‘significant’ trees, whereas the evidence again showed Tree E2 was neither.

132. The Council also referenced the control at clause 2.8.4(f) of Part C2 of the DCP however, accepted that this control is not a prohibition on street tree removal, only a requirement that such removal receive consent, and that replacement trees be planted, both of which are aspects of the application.

133. The Council did not reference in its contentions its own tree management policy (the WTMP) in terms of tree removal and replacement, despite the DCP advising this document prevails in such instances, whereas the Applicants did have regard to the requirements of the WTMP, and associated masterplan.

134. It was agreed that the existing spacing of trees on the southern side of Blair Street in the vicinity of the site was not uniform, and the species are an eclectic mix. It is no longer Council policy to plant large canopy trees such as the Tree E2 species in this section of Blair Street, and the Applicants have agreed to replacement species and locations sought by the Council and which accord with the WTMP, unlike Tree E2.

135. Therefore, whilst I accept that removal of any relatively healthy street tree should be avoided where possible, it is warranted given the circumstances. Namely, in order to provide useable off-street parking and improved landscaping and private open space on the property, removal is required of a street tree which is not a species now supported by the Council in this location and which will be replaced by a street tree in the median opposite the site by a tree of a species that is now supported by Council policy. In addition, substantial additional tree planning is proposed in both the private and public realm.

136. Therefore, the need to remove street Tree E2 is, of itself, not a basis for refusal of the application.

137. I now turn to whether or not the location of the proposed garage and access is acceptable in the circumstances and having regard to all of the DCP controls, noting there was not a specific control cited that such a location had to be ‘the most appropriate’, or ‘the preferred location’ as argued by the Council.

138. I understand and agree with the general proposition put by the Council that the intent of the DCP parking controls, when considered holistically, is that parking and access should be provided at the rear where available, and where such access is from a secondary street.

139. However, I agree with the Applicants that Hastings Parade is not a rear lane for the purposes of the DCP, and is also a street whose properties in the majority do not have dual frontage or rear access from that street.

140. I do accept however, that, notwithstanding there is no definition of ‘secondary street’ in the planning controls, Hastings Parade could reasonably be considered the secondary street, as it was by the Council, for the purposes of determining the preferred location of off-street parking for properties fronting Blair Street and, therefore, that references to ‘secondary frontage’ could, in this regard, be interchanged with ‘secondary street’.

141. However, as I have alluded to above, the situation in Hastings Parade is unusual in that the semi-detached group are a minority of properties that have a secondary frontage to Hastings Parade, with the majority of properties in that street having primary frontage to, and access parking from, Hastings Parade.

142. I now turn to the specific objects and controls of the DCP cited in the proceedings, commencing with the objectives and controls at Part B8.

143. In this regard, I do not accept that the proposed parking and access will dominate or adversely impact upon the character of the streetscape, landscape or development and there will not be an increase in vehicular kerb crossings to the site or a loss of on-street parking. Rather, it will improve the availability of on-street parking with the Applicants able to park on-site rather than on-street.

144. It was not disputed that the new garage will provide convenient and accessible parking for the Applicants and I consider that what is proposed achieves a high standard of urban design, being a skilfull design which locates the garage in the sub-floor area of an existing semi thus remaining behind the front building line and not impacting the height, bulk, scale or envelope of the dwelling. Materials chosen, namely the rendering and painting, will also match the adjoining semi.

145. When considered in conjunction with the landscaping proposed in the public and private domain, this outcome will contribute to the amenity of the two adjoining streetscapes as well as providing improved and additional on-site private open space and amenity.

146. The contested objectives of section 8.1 of Part B8 are therefore met including the provisions of the objectives and controls of clauses 8.2.1 and 8.2.2. Further, whilst I accept that access and parking may be possible from the rear, I do not accept that providing it in this circumstance achieves other controls or objectives in the DCP, such as providing convenient access, and increased open space on-site, which will improve the amenity for the Applicants whilst having no contended adverse amenity impacts on neighbours.

113. In terms of the remaining controls of clause 8.2.1, I accept the submissions of the Applicants that the additional landscaping will soften the impact of what is proposed and only Tree E2 is affected, which has already been determined to be neither mature nor significant.

114. The Council relied heavily on control (e) of clause 2.8.1. However, this control requires access from secondary streets to be provided for ‘car parks’ where all the other controls in the section refer to ‘car parking’, ‘parking structures’ or ‘driveways’ and ‘access’. It could be argued that the proposed garage is a ‘parking structure’ not a ‘car park’ and that control (e) therefore does not apply to this development.

115. Turning to the provisions of Part C2 of the DCP.

116. Several of the objectives and controls at section 2.8 in essence replicate those in Part B8 and therefore have already been addressed. Of the remaining, there was no evidence that the amenity or safety of pedestrians would be adversely impacted (objective (c)) nor that the outcome would not encourage the use of alternative modes of transport in an area well serviced by public transport (objective (e)), given what is proposed will simply enable the Applicants to park their car on-site rather than, with a permit, in the street.

117. I also agree with Ms Hemmings that none of the parking siting requirements referenced in clause 2.8.3 Figure 11 apply to the site. Access is not from a rear lane, nor is the garage proposed to the side of the dwelling or forward of the front building line. Therefore, it cannot be said that the development does not comply with the locational requirements for parking specified at clause 2.8.3.

118. In terms of the design requirements of clause 2.8.4 not otherwise already specifically addressed, I consider the proposed garage is designed to complement the style, massing and detail of the semi (objective (a)) being responsive to the need to complement the style, massing and detail of the dwelling to which it relates, which was not contended by the Council. It is also sympathetically integrated into the design of both the semi on the site and its adjoining pair. It was agreed that the garage would be secondary in area and appearance to the primary residence and site (objective (b)).

119. The only aspect of control 2.8.4 contended by the Council, other than control (f) relating to tree removal already discussed, was control (c) which precludes elements of the façade being demolished or removed. Whilst some alterations are proposed, this is limited to the removal of brickwork and its replacement with a garage door at sub-floor level. These alterations are offset by changes to the façade to match the appearance of its adjoining pair.

120. I therefore accept Mr Moody’s evidence that these alterations are minor and include improvements to the façade to better integrate with the adjoining semi in terms of the rendering, painting and window treatment proposed.

121. This, in the circumstances where there is no requirement to match the other semi in the pair, but was an outcome sought by the Council in a location where the pair and the semi-detached group are neither heritage items nor situated in a heritage conservation area.

122. I am therefore not persuaded that the façade or appearance of the existing semi even needs to be ‘protected’ or cannot reasonably be altered, providing that alteration is not incompatible with the general appearance of its pair. In this regard, I note the appearance of the semi, relative to its pair at No. 67, has already been altered with an approved first-floor addition.

123. Nor could I understand what was unacceptable in terms of the impact of the proposed design on the semi, the semi-detached pair, or the semi-detached group, noting again the support of the other semi in the pair. Nor did I consider the pair or group to be so homogenous or similar in appearance that the façade alteration ought to be refused.

124. I also do not accept the evidence of Mr O’Donnell that the development would be highly visible or unsympathetic in the streetscape and note that he agreed that what is proposed would not be a dominant feature of the façade.

125. Further, the proposed parking preserves the natural features of the site and incorporate substantial screen planting (objective (d)).

126. In summary, in terms of Blair Street, I prefer and accept the evidence of Mr Moody that the proposed garage would have a minor impact on the symmetry or appearance of the semi and there would be no adverse impact on the semi-detached pair. The pair already varies in terms of height (number of storeys), roof pitch and colour and treatment of the front façade.

127. Being in the sub-floor area under the existing roofline, the garage will remain behind the front building line, as DCP controls seek to achieve albeit for new dwellings only, as well as partially below the height of the adjoining footpath. I do not accept it will be highly visible from properties on the opposite side of Blair Street, given the distance of the development from those properties, and the existence of a central landscaped median which will be further planted with a screening tree by the Applicants of an agreed species for the area.

128. As I have already indicated, the controls at clause 2.8.4 must be considered in the context of the objectives for all of section 2.8 which include that convenient and accessible parking appropriately designed and located is provided of high quality urban design and not dominant in the streetscape (which I consider to be the case). There were also no demonstrated adverse impacts as a result of an additional crossover to Blair Street or in terms of safety to pedestrians.

129. Having considered the submissions of the parties, and the evidence of the experts, I am therefore satisfied that the potential urban design and visual impacts, as well as character and streetscape impacts, of the proposed development, considering both streetscapes that the site fronts, are acceptable. I therefore consider the objects of the parking provisions of the DCP to be met.

130. In this regard, I agree with the Applicants that the streetscape impacts on Hastings Parade are a relevant consideration and where it can only reasonably be concluded that removing a driveway across the verge, where cars can and do park illegally, as well as an undersized and unused garage, and replacing these uses with landscaping and open space, could only be a positive outcome.

131. As I have already indicated, in focusing on the DCP controls relating to the design and location of the proposed garage, the Council did not consider other DCP controls that apply to the development as a whole, namely the impact on the landscaping and open space provisions. These impacts are of a positive nature and result in actual or improved compliance with those DCP provisions.

132. Specifically, in terms of section 2.9 of Part C2, the development will result in the amount of landscaped area provided on-site increasing from 7% to 18.5% thus meeting the minimum requirement of 15%; the open space in the front setback area will be increased; and there will be an improvement in the amount of open space provided to be closer to the 40% provision required.

133. Such outcomes clearly improve both the amenity for the Applicants and the view of the site from Hastings Parade and also meets objective (a) of Part C2 clause 8.2.1, which replicates parking objectives of the DCP already cited, by providing convenient and accessible parking for the Applicants, which cannot be achieved with their existing garage.

134. The landscaping and open space controls must be given equal weight to those associated with parking location and design but were not given any weight in the Council’s assessment.

135. In conclusion, considering the proposed development holistically, including all of its components, I find that it achieves the critical, and sometimes conflicting, applicable objects of the DCP in the following ways:

1. It provides convenient and accessible parking that is appropriately designed and located;

2. It achieves a high standard of urban design in utilising the sub-floor area to integrate the garage into the existing semi thus minimising impacts on the existing built form;

3. There was no evidence that the proposed crossover would not protect the amenity and safety of pedestrians;

4. The evidence did not persuade me that the proposed garage or access arrangements would dominate or adversely impact the existing built or landscaped character of Blair Street whereas I was persuaded that both the built form and landscaped character of Hastings Parade would be improved;

5. The proposal reduces the use of on-street parking with one off-street space provided to house the Applicants’ car. The existing garage on the site is unable to perform this function but takes up an area of the rear yard that could otherwise be unbuilt upon and utilised as landscaped private open space. That ability would be reduced or removed if the existing garage was extended or compliant parking provided at the rear; and

6. There is no lessening of the ability to continue to encourage the use of alternative modes of transport as the application does not propose any increased car ownership by the Applicants, but rather only increases their options for where they are able to park their existing car.

170. Accordingly, notwithstanding any non-compliance with specific locational provisions of the DCP to provide off-street parking from secondary streets or at the rear, the proposed access and parking arrangements, when considered in conjunction with the other aspects of the development overall, in my assessment, achieve the intent of the objects of the DCP, and such controls should therefore be flexibly applied, consistent with the provisions of s 4.15(3A) of the EPA Act.

171. I turn finally to the public interest contention.

172. There were no objections to the proposed development and a letter of support from the owner of the other semi in the pair.

173. It was agreed that the Applicants are currently required to park their car on the street or ‘illegally’ across the verge in their driveway on Hastings Parade. Providing a secure on-site parking area, of an acceptable design, to improve the amenity for the Applicants without adversely impacting the amenity of neighbouring properties, I consider to be in the public interest.

174. In terms of creating a possible precedent which is not in the public interest, I do not accept, given the circumstances of this application, that any approval of the application would establish an undesirable precedent for future development in the locality such that it would form a basis for the Court to refuse the application.

175. I do so having regard to the Court’s finding in Goldin by concluding that there is nothing in and of itself that is objectionable with the development, nor do I accept that it would result in similar outcomes for the remaining dwellings in the semi-detached group for the following reasons.

176. Firstly, whilst accepting that the other semis in the semi-detached group have rear access existing or possible, there is no evidence that the owners of these semis will seek access from Blair Street instead, as their circumstances vary. This includes the fact that at least one of the semis already has no on-site garaging, but instead landscaped rear open space, whilst another has rear on-site parking in the form of a useable hardstand space. Others appear to rely on using their driveways for parking.

177. Secondly, I do not accept that relocating a garage to the front in the same sub-floor area behind the front building line is necessarily possible given the topography changes between the sites. There was also no evidence that the design or use of the rooms in the remaining 5 semis was conducive to such a conversion.

178. Thirdly, I do not accept that, even if one or more of the remaining dwellings in the semi-detached group sought to provide parking from Blair Street, this would be undesirable or objectionable.

179. If such approval required the removal of existing access driveways and landscaping of these areas instead, as is proposed in this application, it would remove parked cars from these driveways in Hastings Parade. This parking practice currently clearly occurs as was noted on the site view, was accepted by the Council as not being lawful (but tolerated), and detracts both from the streetscape of Hastings Parade and potentially the ability to fully use or access the adjacent footpath. It would also increase the amount of on-site open space and landscaping provided for each property, including the ability to achieve compliance with DCP open space and landscape area controls, which could not be said to be an undesirable precedent.

180. Fourthly, there are only 5 other dwellings in the semi-detached group. Even if all ultimately had access from Blair Street rather than Hastings Parade, providing there was adequate street tree planting provided and this was achieved in a manner compliant with the Australian Standards, there was no evidence to suggest that such an outcome would not be acceptable in the streetscape given the eclectic nature of development in Blair Street which includes garaging accessed from that street. There was also no evidence that traffic volumes in the street preclude such access being safely provided.

181. Finally, each application needs to be assessed on its individual merits having regard to relevant controls, the circumstances of the case, and the outcomes from, and impacts of, the development.

182. In summary, the Applicants are funding the removal and replacement of an old garage unable to be used for parking, as well as a driveway that only encourages illegal verge parking, and landscaping these areas in order to be able to park their car off the street and improve the extent and landscaping of their useable private open space and within Hastings Parade.

183. The consequence of this will be the loss of one immature street tree not recommended to be planted in the area and its replacement with an agreed species in the central median of Blair Street, and a new garage behind the building line in the sub-floor area of an existing dwelling. The outcome will be substantial improvement in the Applicants’ amenity with the additional private open space and landscaping in their rear yard which is currently unable to be achieved.

184. Considering the totality of what is proposed, I find the proposed development to meet the intent of the planning controls for the site, and any variation to those controls to be acceptable in the circumstances.

185. Consequently, I have concluded that the proposed development is in the public interest and should be approved with the agreed conditions of consent imposed.

Orders

186. The Court orders that:

1. The Applicants are granted leave to amend its plans.

2. The appeal is upheld.

3. Development application DA-255/2019 for a new garage and associated works at 65 Blair Street, North Bondi is determined by the grant of consent, subject to the condition attached at Annexure A.

4. The exhibits are returned except for Exhibits A, B, C, D, J and 1.

……………………….

Jenny Smithson

Acting Commissioner of the Court

Annexure A (236437, pdf)

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Decision last updated: 18 December 2020