Sheer Property Group Pty Ltd & anor v Randwick City Council

[2013] NSWLEC 1168

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sheer Property Group Pty Ltd & anor v Randwick City Council [2013] NSWLEC 1168
Hearing dates:	22 August 2013
Decision date:	02 September 2013
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld subject to conditions
Catchwords:	DEVELOPMENT APPLICATION: Conversion of semi-detached dwellings into four units; parking; sustainable transport options in particular car share; change of emphasis in the DCP
Legislation Cited:	Environmental Planning and Assessment Act 1979 Randwick Local Environmental Plan 1998 Randwick Local Environmental Plan 2012 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development
Cases Cited:	Zhang v Canterbury City Council [2001] NSWCA 167
Category:	Principal judgment
Parties:	Sheer Property Group Pty Ltd (First Applicant) Prestwick Investments Pty Ltd (Second Applicant) Randwick City Council (Respondent)
Representation:	First and Second Applicants: Mr M Staunton (Barrister) Respondent: Mr P Rigg (Solicitor) First and Second Applicants: Lawson Plowes Respondent: Norton Rose Fulbright Australia
File Number(s):	10382 of 2013

Judgment

1. COMMISSIONER: The applicants have appealed under s 97(1) of the Environmental Planning and Assessment Act 1979 (EPAA) against the refusal by Randwick City Council of Development Application No. DA/488/2012.

1. The proposed development before the Court is described as alterations and additions to an existing semi-detached dwelling at 143-145 Mount Street Coogee and the conversion of the existing building into multi-unit housing comprising four dwellings, strata subdivision and associated works. Two 2-bedroom units will be reconfigured on the ground floor and a new upper storey constructed to comprise two 1-bedroom units.

1. The only issue raised by the council in its Statement of Facts and Contentions is a deficiency in the number of parking spaces for future residents and visitors. The contention states:

1. The proposal has a deficiency of 2-3 spaces for residents and 1 space for visitors, i.e. 3-4 spaces deficient overall. Having regard to the exiting demand for on street parking, as per the applicant's parking surveys and Council's Development Engineer's observations, the proposal will adversely impact on the parking opportunities for existing residents and their visitors.

1. The applicants dispute the council's numbers and consider the shortfall is between 1 and 2 spaces. As an alternative, the applicants propose the dedication of a car share space and membership in the car share scheme for each of the dwellings.

Relevant background

1. The applicants originally proposed the conversion of the existing two x 2- bedroom semi-detached dwelling into four 2-bedroom units and the provision of two off-street parking spaces - one on each on the north and south boundaries.

1. As State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development applies, the Joint Randwick/ Waverley Design Review Panel (DRP) reviewed the pre-DA in June 2012.

1. Amongst many other things, the DRP made the following comments in regards to the proposed off-street parking.

Two new on-site car spaces are proposed however the Panel does not support their inclusion as the new driveways would in effect remove two existing parking spaces from the street. The proposed spaces also take away landscaped area from the front yard. Stairs to the separate units on the existing ground floor could then be placed to the north and south boundaries and define good entry gardens.

1. The DA was lodged and notified in August 2012. Twenty individual objections were received which detailed concerns relating to parking availability, solar access, visual privacy, floor space ratio, landscaping, stormwater and neighbourhood character.

1. In response to the DRP's pre-DA comments, the applicants' architect amended the plans and the proposal went back to the DRP in September 2012. The DRP's comments in regards to the architect's response to the comment above are as follows:

The on-site car parking has now been deleted, which significantly improves the relationship to the street, the retention of on street parking and the entrances.

1. However, in response to other deficiencies in the proposal identified by the DRP and concerns raised by the objectors, the applicants lodged amended plans in November 2012. The revised scheme incorporated a number of amendments including reduced bulk and scale, and reduced intensity (2 x 2 bedroom and 2 x 1 bedroom apartments). The proposal also includes a bicycle locker for each apartment.

1. The amended application was re-notified and nine submissions received. The principal concerns were mostly in relation to the lack of parking and overdevelopment.

1. Council engaged an independent consultant planner to assess the proposal. The planner recommended approval of the application.

1. Council's Planning Committee subsequently refused the application on the grounds that the proposal does not comply with the numerical requirements of the DCP - parking, and will adversely impact on car parking capacity of the locality.

The site and locality

1. The site is Lot 1 in DP 5597 known as 143-145 Mount Street Coogee. It is located on the lower or eastern side of Mount Street between Clifford and Dudley Streets. The site slopes towards the rear of the property and the entry to the exiting semi-detached dwellings is below street level. There is no existing off-street parking on the site.

1. Immediately to the north is a two-storey residential flat building and to the south is a pair of single storey semi-detached dwellings. There is a mixture of two and three storey residential flat buildings of a range of ages and styles. There are also other single storey detached dwellings further to the north. The majority of the dwellings and units on the eastern side have landscaped frontages and no off-street parking.

1. The western or more elevated side of Mount Street, between Rainbow and Dudley Streets, comprises mostly one to two-storey detached dwellings and unit blocks on large lots, most of which have garages and driveways at street level.

1. The site has no heritage significance nor is it located near a heritage item or within a heritage conservation area.

1. The site is zoned R3 Medium Density Residential under Randwick Local Environmental Plan 2012 (RLEP 2012) and Zone No 2C (Residential C Zone) under Randwick Local Environmental Plan 1998 (Consolidation) (RLEP 1998).

Relevant controls and assessment framework

1. The Development Application for this site was lodged prior to the commencement of RLEP 2012 and is therefore subject to the savings provisions in cl 1.8A of that Plan. The proposal and the remaining contention must therefore be assessed under RLEP 1998, however, where relevant, RLEP 2012 is considered.

1. The relevant objectives of Zone No 2C in cl 12(1) RLEP 1998 are:

(a) to provide for a medium density residential environment, and

(b) to maintain the desirable attributes of established residential areas, and

(c) to protect the amenity of existing residents, and

(e) to encourage housing affordability,

1. At the time the DA was lodged, Randwick Development Control Plan 1998 - Parking (RDCP 1998) was in force. However, it was agreed by the parties that Randwick Development Control Plan 2013 (RDCP 2013) is the appropriate set of controls by which the proposal should be assessed. RDCP 2013 repeals all previous DCPs and has no savings provision. There is no inconsistency between RLEP 1998 and RDCP 2013 (s 74C(5) EPAA).

1. The relevant Part of RDCP 2013 is Part B7 Transport, Traffic, parking and access in Part B - General Controls.

1. Section 1 - Introduction, sets out the relevant aims and objectives of this Part. These objectives in cl 1.1 are:

· To promote sustainable transport options for development, particularly along transport corridors, in commercial areas and strategic/ key sites.

· To manage the provision of car parking within the broader transport network.

· To support integrated transport and land use options which can demonstrate shared and effective car parking provision with car share facilities, motorbikes/scooters, bikes and links to public transport.

· To ensure car parking facilities, service and delivery areas and access are designed to enhance the streetscape character and protect pedestrian amenity and safety.

1. Clause 2.1 Public transport, Section 2- Sustainable transport objective and control are:

Objective

· To integrate development with the public transport network and improve walking, cycling, sustainable transport options and public transport use.

Control

i) All development in addressing transport, parking and access requirements must consider and integrate transport measures that provide for greater use of public transport, walking and cycling.

1. Clause 2.2 considers Car share. The relevant objectives and controls are:

Objective

· To encourage car share spaces in developments with high public transport access.

Controls (relevant)

i) Car share spaces are to be provided in residential and or/ commercial development where public transport accessibility is high and/or where a Transport Assessment Study is required.

v) The establishment and operation of a car share scheme must occur soon after completion or occupation of the development.

1. Clause 3.2 - Vehicle Parking Rates includes Table 1 in which the relevant numerical controls for multi-dwelling housing and residential flat buildings require: 1 space per 1 bedroom apartments (over 40m2), 1.2 spaces per 2 bedroom apartments, and 1 visitor space per 4 dwellings. An accompanying Note states: "Car share facilities in certain locations are a viable option and should be discussed with Council staff". RDCP 2012 retains the vehicle parking rates specified in RDCP 1998 but adds the "Note" regarding car-share options.

1. Clause 3.2 also states:

Where development comprises an extension, modification or change of use to an existing development, Council will generally only require that additional parking be provided to cater for the additional demands arising from increases in floor space or changes in use.

1. Clause 3.3 deals with Exceptions to the Parking rates. The 'Explanation' states in part:

There may be circumstances where it may not be physically possible or aesthetically desirable to provide parking (eg the provision of off street parking in the frontage of a heritage item or in areas of significant streetscape value).

It is the responsibility of the applicant through the development assessment process to demonstrate that the proposed level of parking provision is adequate, or that the overall planning benefits of the proposed development outweigh the deficiencies.

1. The controls in cl 3.3 list the relevant issues that must be considered for the particular development. These include: site and building constraints; streetscape; on street and public parking in the area as well as proximity and access to public transport; location of local services etc; safety; and provision of any integrated, sustainable transport options.

The hearing and evidence

1. The hearing commenced on site. The Court and the parties had the opportunity of hearing from a number of local residents who had also prepared written submissions. The residents in attendance all reside on the eastern side of Mount Street. Their specific issues relating to parking include:

· the difficulty of finding a relatively convenient parking space at night or on weekends resulting in problems for people with children, anyone bringing home their shopping, and especially the elderly, less mobile and disabled.

· safety concerns, particularly for women who work late shifts and who must park a distance from their homes;

· the proliferation of garages and driveways on the western side of the street, especially in conjunction with the number of rental properties in the area, has, over the years, resulted in a significant reduction the number of on-street parking spaces;

· the architectural style and age of the units of the eastern side of the street do not provide opportunities for off-street parking;

· those older units that have off-street parking have narrow driveways and exiting those driveways in a busy, densely parked street creates safety concerns for pedestrians and drivers;

· physical constraints of high gutters and narrow nearby streets limits parking and create safety concerns, especially when unloading children;

· contrary to the applicants' reports, the site is within 10-15 minutes walk of Coogee Beach and 3-5 minutes drive resulting in constant visitor traffic in summer;

· it is unreasonable to assume that new residents wont have at least one vehicle. The recent census indicates that the population in the suburb has increased by 3% but car ownership by 12%;

· the difficulty in finding legal on-street parking spaces leads to illegal parking in driveways and on footpaths; and

· the availability of on-street parking identified in the parking consultants' reports is overstated, especially in regards to Clifford Street which is a narrow two way street.

1. The Court and the parties viewed the site from the street, the nearby Mount Street streetscape, and Clifford Street.

1. As the only contention concerns parking, the parties engaged relevant experts. Mr Garry Kennedy provided expert evidence for council, and the applicants engaged Mr John Coady. The experts prepared individual reports and a joint report.

1. In preparing their individual reports, both experts had regard to a "Parking Assessment Report - Rev B" prepared by Silver Wolf Projects Pty Ltd in March 2013 and the relevant planning controls. In addition, Mr Kennedy undertook his own parking accumulation survey. The joint report also considered the 2006 census for Randwick LGA.

1. The experts agree that if the 2006 Census information were used as an indication of the estimated average additional resident parking demand, as a consequence of the proposed development, the figure would be 0.92 spaces [not including visitor parking]. The experts also agree on the proximity of public transport and bicycle routes and the number of car share parking pods in the general vicinity (7).

1. The Silver Wolf survey recorded the number of potential spaces (54) and occupied legal parking spaces in Mount Street between Rainbow and Dudley Streets and in Clifford Street between Mount and Cox Streets on Wednesday 13 February 2013 for 12 hours and for four days between Tuesday 26 February and Saturday 2nd March for 24 hours each. Mr Kennedy conducted his surveys in the same sections between 6.00pm and 11.00 pm from Saturday 22 to Thursday 27 June 2013. Mr Kennedy also included vehicles parked in driveways, on footpaths and in no-standing areas.

1. The Silver Wolf survey reported parking occupancy rates from 57% to 98% with the greatest demand/ highest occupancy period being between 10.00pm to 5.00am. Mr Kennedy found occupancy rates of 81% to 120%. Figures greater than 100% indicate vehicles parked 'illegally'.

1. In Mr Kennedy's opinion, the RDCP controls should apply and therefore the proposed development is short three spaces. He also considers that a 2-4-vehicle car-stacker located within the front setback would be a reasonable option and something that would not increase the existing high demand for on-street parking.

1. Mr Kennedy also considers that the provision of bicycle lockers, the proximity to public transport, and the proposal for a car-share space would not guarantee that future occupants of the development would not own a car. In addition, the creation of a car-share space requires separate referral to, and approval by, the council's Local Traffic Committee. In his view, a car-share space is a complimentary approach but would not overcome the shortfall in spaces.

1. In the light of his survey findings, Mr Kennedy finds that any further pressure on the already unsatisfactory parking conditions in Mount Street will result in further illegal parking, unsafe traffic and pedestrian conditions and reduced residential amenity. In his opinion, the proposal should not be approved without the provision of the additional parking required by RDCP.

1. In Mr Coady's opinion, the RDCP requirements can be interpreted in a number of ways, especially in regards to the requirement for visitor parking arising from an extension to/ modification of and existing development. In his view, the 2006 Census for Randwick provides the best indication of likely additional residential parking demand of 0.92 spaces. Although he considers it is not clear whether there will be an increase in demand for visitor parking, he considers the proposal will generate more than one but less than two additional parking spaces. He maintains that this additional demand is minor and can be accommodated by the existing on-street parking opportunities identified in the Silver Wolf report.

1. Mr Coady considers that any adverse implications of the proposed development will be mitigated by the sustainable transport initiatives of the provision of four bicycle lockers and a car share pod outside the site. In his view, these initiatives respond directly to the sustainable transport policy contained within RDCP 2013. He considers that the existing on-street parking congestion at night, as well as the public and sustainable transport options, will be a disincentive to car ownership.

1. In regards to Mr Kennedy's off-street parking suggestion, Mr Coady considers it is neither practicable nor appropriate to provide off-street parking. In his opinion, the topography of the site makes it economically and aesthetically unattractive and would result in the loss of one to two kerbside parking spaces.

Submissions

1. While accepting that sustainable transport options are relevant, Mr Rigg for the council maintains council's position that the shortfall in parking spaces as a consequence of the proposal merits its refusal. He argues that the parking demand figures obtained by Mr Kennedy support the council's and the local residents' concerns. Mr Rigg contends that the specific issues raised by the residents are compelling and should be given significant weight.

1. Mr Staunton for the applicants adopts Mr Coady's conclusions in the joint report in regards to the sustainable transport thrust of the RDCP 2013. In particular, when considering Part B7, "it is difficult to avoid the conclusion that the DCP considers sustainable transport options to be more important than the provision of off-street parking spaces, particularly in circumstances where such provision is difficult to achieve."

1. In addition, Mr Staunton notes the response of the Design Review Panel to the original proposal for off-street parking. He also cites a number of controls and objectives in the RDCP 2013 that require the use of mechanical parking devices such as car stackers to be minimised, especially on difficult or constrained sites, and to ensure that car parking facilities do not dominate the property frontage or adversely affect the streetscape.

1. Mr Staunton contends that apart from the streetscape implications, providing on-site parking encourages parking, removes on-street parking and is counter to the zone objective to encourage affordable housing.

1. In regards to the car share proposal, Mr Staunton tendered material from 'GoGet', a car-share provider with whom Randwick Council has formed a partnership. The material, including a download from the City of Sydney, indicates that for every share car, 9-13 private cars are taken off the road. He also noted that council has the option of introducing a Residential Parking Scheme (cl 2.4 DCP 2012) that includes the possibility of not issuing permits to residents of new developments.

Findings

1. After considering the evidence and the positions of the parties and the residents, I find that the appeal should be upheld subject to the inclusion of a condition of consent pertaining to car sharing. In coming to this conclusion I make the following comments.

1. The site is located in an area zoned for multi-dwelling housing and residential flat buildings. The proposal is a relatively modest conversion of an existing older style semi-detached dwelling. In applying the parking rates in RDCP 2012, including the discounting in cl 3.2, at most, the proposal will result in three additional spaces. While the experts considered the 2006 census figures, which could indicate the loss of fewer spaces, I am obliged under s 79C(1)(a)(iii) of the EPAA and the findings in Zhang v Canterbury City Council [2001] NSWCA 167 to focus my attention on the DCP.

1. The site is clearly constrained by its topography and the setbacks of the existing dwellings. I note the Design Review Panel's objections to the original proposal for off street parking. I also note Mr Staunton's submissions on the streetscape character of the eastern side of Mount Street and the requirements in RDCP 2012 to minimise the use of car-stackers and the like. I agree with the applicants that Mr Kennedy's suggestion of a car-stacker forward of the building line is unacceptable on aesthetic grounds as it would be completely out of character with the majority of frontages on the eastern side of Mount Street.

1. It would also inevitably remove at least one parking space from the street for a driveway.

1. During the hearing, some time was taken to consider the differences in parking occupancy rates found by Silver Wolf and Mr Kennedy.

1. The data as presented in Mr Kennedy's tables do not enable a detailed interrogation of the actual occupancy rates of 'legal' parking spaces. It may be that people in dwellings with more than one vehicle chose to park in their own driveways rather than on the street. A greater than 100% figure does not necessarily mean than all legal on-street spaces were occupied. The fact that Mr Kennedy's surveys were undertaken on wet winter evenings may have been a factor.

1. The Silver Wolf survey was carried out in the warmer months of February and March when one might expect more activity in a beachside suburb. However, this survey does not appear to record 'illegal' parking.

1. The point is that there are limitations as to how much weight can be placed on survey data. However, I agree that an additional three spaces is modest and the Silver Wolf data suggests that most if not all of this demand could be met within the study area. This concurs with the March 2013 memorandum from council's Development Engineer in which he concludes that 'the parking deficiency alone does not form sufficient grounds for refusal of the application'. The independent planner engaged by council also concludes:

The parking deficiency of 3 car spaces can generally be satisfied by the availability of on-street parking in the vicinity which is proximate to car share pods, public bus stops and the Coogee Town Centre. The parking deficiency is therefore acceptable.

1. While the numerical controls have been maintained in the current DCP, I agree with Mr Coady that there is a clear and unambiguous emphasis on sustainable transport options in RDCP 2012 that is absent in the earlier DCP. Some of these strategies and their objectives and controls are listed in this judgment.

1. The addition of the 'Note' in the vehicle parking rates table anticipates that car share facilities are a viable option in certain locations. Similarly cl 3.3 in RDCP 2012 accepts that in some circumstances, it may not be possible to provide on-site parking. In my view, the opinion of the Design Review Panel supports the argument that the site is unsuitable for on-site parking.

1. Clause 2.2 in Part B7 RDCP 2012 deals with car share options. The 'Explanation' notes in part that these schemes are more viable where on-street parking is limited. Relevantly, the clause states:

Car share schemes are effective on sites or in areas with higher density and ready access to good public transport and services. To operate successfully care share vehicles need to be highly visible, easily and safely accessed at any time (whether on or off the street) by residents and business operators on the site, as well as those in the surrounding precinct.

Care share spaces can also be dedicated for the exclusive use of building occupiers, if desired. In this case, the cost of the car share can be met by strata levies and must be organised by the developer.

1. It is common ground that the site is located within a walking distance of about 85 m to three bus routes in Oberon Street and is about 300 m from six bus routes in Carr Street. The site is in an area of increasing density with a significant number of rental properties and clearly limited on street parking. Therefore, it would seem to me that the site meets the criteria for the location of a car share space.

1. The applicants proposed an application be made for a car share pod/ parking space adjacent to the site. While membership in a car share scheme would be available to anyone, the applicants would arrange membership for six occupants of the property for a minimum period of five years.[During the hearing, the parties drafted a condition to this effect should I decide in favour of the proposal. This condition is attached to this judgment as Annexure A.]

1. While the allocation of a designated car share space in Mount Street would remove one generally available car space, it has the potential, in the longer term, to free up parking in the future should other new or existing residents choose to use the system.

1. While it is clearly desirable for anyone who owns a car to park close to his or her dwelling, planning strategies that encourage higher density living in areas close to the city on public transport routes will inevitably lead to measures to decrease dependence on individual car ownership.

1. In my view, the measures proposed by the applicants in regards to car share options are fully in line with the thrust of the sustainable transport measures detailed in RDCP 2012 and satisfy the relevant zone objectives in RLEP 1998.

Orders

1. Therefore, after considering the evidence and submissions, and having regard to the matters to be considered under s 79C of the EPAA, I make the following orders of the Court.

(1)   Appeal 10382 of 2013 is upheld.

(2)   Development Application No. DA/488/2012 for alterations and additions to the existing semi-detached dwelling including new first floor and second floor additions and conversion of the existing building into multi-unit housing development comprising 4 dwellings, new boundary fencing, strata subdivision and associated site works at 143-145 Mount Street, Coogee, NSW 2034 is approved subject to the conditions of consent as agreed by the parties and including the condition in Annexure A.

(3)   The parties are to provide the Court with an agreed consolidated set of conditions, electronically in Word format, within 7 days of the date of these orders for inclusion in the Final Orders.

(4)   All exhibits except A and 2 are returned.

______________________

Judy Fakes

Commissioner of the Court

ANNEXURE A

Draft condition

Application shall be made under the Road Transport (Safety and Traffic Management) Act 1999 for approval of a car share parking pod adjacent to the property 143-145 Mount Street, Coogee, prior to the issue of any Construction Certificate and if approved the Applicant shall provide evidence to Council of a membership entitlement providing that six (6) occupants of the said property may use car share vehicles provided by GoGet Car Share or another relevant provider for a minimum period of five (5) years prior to the issue of an Occupation Certificate for the said property under this development application.

Decision last updated: 03 September 2013