Solheim v Bayside Council

[2020] NSWLEC 1118

Land and Environment Court

New South Wales

Medium Neutral Citation:	Solheim v Bayside Council [2020] NSWLEC 1118
Hearing dates:	26-27 February 2020
Date of orders:	12 March 2020
Decision date:	12 March 2020
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1)   The appeal is dismissed. (2)   Development Application 2018/244 by Bayside Council (the Council) for a demolition of an existing carport and reconstruction of a new carport structure on Lot 8 DP 6524, also known as 22 O’Connell Street, Monterey is refused. (3)   The exhibits are retained.
Catchwords:	DEVELOPMENT APPLICATION – carport – consistency with streetscape character
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Rockdale Local Environmental Plan 2011
Texts Cited:	Rockdale Development Control Plan 2011
Category:	Principal judgment
Parties:	Mark Anton Solheim (Applicant) Bayside Council (Respondent)
Representation:	Counsel: R Pearson (Solicitor) (Applicant) P Brown (Solicitor) (Respondent)   Solicitors: Creagh & Creagh (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2019/213582
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 2018/244 by Bayside Council (the Council) for a carport on Lot 8 DP 6524, also known as 22 O’Connell Street, Monterey (the site). The (original) DA under appeal was lodged with Council on 21 September 2019.

2. At the conciliation conference for this appeal, held on 26 February 2020 and arranged by the Court pursuant to s 34AA(2) of the Land and Environment Court Act 1979 (the Court Act), an agreement was unable to be reached between the parties. The conciliation was terminated as agreed with the parties.

3. After the termination of the conciliation conference, both parties consented to myself as the presiding Commissioner, disposing of the appeal proceedings forthwith based on what occurred at the conciliation, and in accordance with s 34AA(2)(b)(ii) of the Court Act. No objectors were heard at the conciliation, although the Court recognises one submission was received during the notification of the DA. The parties agree that the Court can rely on site observations from the conciliation.

4. Further to this, the parties seek the Court to rely on the following submitted in evidence:

1. Exhibit 1 – (Council) Bundle of Documents

2. Exhibit 2 – Expert (Engineering) report prepared by Mr Samuel Arulananthan for the respondent

3. Exhibit 3 – Draft Conditions of Consent

4. Exhibit 4 – Statement of Facts and Contentions

5. Exhibit A – Class 1 Appeal Application

6. Exhibit B – (Amended) DA 2018/244

7. Exhibit C – Joint expert (Planning) report prepared by Mr Michael Maloof for the respondent and Mr Brent Winning for the applicant.

8. Exhibit D – Photographic Survey dated 25 February 2020

5. The Court also gave, prior to reserving judgment, the parties an opportunity, to file written submissions in support of their position, which was filed on 26 February 2020.

The site

6. The site is currently occupied by a single storey brick dwelling, in ‘Californian bungalow style’, with a landscaped front and rear setting, consisting of an assortment of trees and grassed area. The front of the dwelling has a brick porch, and the existing driveway extends along the (northern) side boundary at a maximum width of 2.35m to the rear of the property, where a disused garage is located. Along the northern boundary in the front setback is a 1-2 m brick wall (constructed by the adjoining property owners) adjacent to the existing (and proposed) driveway entry.

7. The area of the site is a generally regular, rectangular shape of 490.46m², oriented east-west, and fronting O’Connell Street to the west for 12.19m. The depth of the site is 40.24m and the fall is minimal, towards the east.

8. The carport structure is currently and proposed to be located when (re)constructed, approximately 0.15m from the front (western) boundary and extending to the existing porch, located forward of the existing building line.

9. The character of the area around the site is observed as being a variety of low density housing styles, in a period of transition from the older single storey brick dwellings, as found on the site, to newer, two storey developments, with predominant brick street frontage walls, such as found on the adjoining property. The front setback is generally consistent along the street, with a landscaped area, walls/fences and driveways predominant.

10. The majority of properties surrounding the site, including those that the Court was taken to by the experts in defining the local character of the area, were observed to have garages/carports behind the property line. However, numerous examples (and variable styles) of carport structures in the front setback were also observed.

Details of the proposal

11. The proposed carport will utilise existing materials from the carport to be demolished and is described as being:

• aluminium (4 post) frame with sloping polycarbonate roof,

• dimensioned at between 2 to 2.5m high, over a length of 4.2m and width of 3m, and

• located 0.15m from the front property line along the northern boundary.

12. With regards to addressing the Court’s power to consent to a DA for existing works, pursuant to s 4.69 of the Environmental Planning and Assessment Act 1979 (EPA Act), the applicant, subsequent to the termination of the s34 conciliation and before judgment was reserved, filed on 26 February 2020, a Notice of Motion (NoM), which was then amended on 27 February 2020. The amended NoM for the Class 1 application and the DA seeks demolition of the existing carport structure and construction of a carport, as described in the plans attached to the DA application.

13. The respondent advised the Court that the amended DA does not require re-notification, consistent with the Rockdale Development Control Plan 2011 (RDCP) and there are likely no additional impacts as a consequence of the amended proposal.

14. The parties agree that the expert reports and (DA) plans already filed with the Court are to be relied upon in the assessment of the amended DA.

15. The respondent was given the opportunity by the Court to amend the contentions and draft conditions of consent to reflect the amended DA, although has advised the Court they do not seek to do this.

16. The Court is satisfied that the requirements of s 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg) are achieved to grant leave to rely on the amended DA and Class 1 Appeal Application.

17. The amended Class 1 Application and DA as assessed by the Court therefore become Exhibits A and B, respectively.

18. The Council presses that, irrespective of the jurisdictional issue for unlawful works, the proposed carport structure is inconsistent with the streetscape character of the area. The carport as proposed to be located in the front setback, relies on an insufficient car space size and the location results in a risk to pedestrian safety. The proposed development will set an undesirable precedent in the area.

Relevant planning controls

19. The objects of the EPA Act, as specified in s 1.3, are relevant for the Court’s consideration of the amended DA.

20. The DA is assessed against the requirements of s 4.15(1) of the EPA Act to consider grant of consent, pursuant to s 4.16(1).

21. The parties agree that the proposed demolition and carport construction requires development consent, pursuant to s 4.2 of the EPA Act. The parties also agree that the existing carport structure cannot be granted consent in its current form, being unlawfully commenced, pursuant to s 4.69 of the EPA Act by the Court:

4.69 Uses unlawfully commenced (cf previous s 109A)

(1) The use of a building, work or land which was unlawfully commenced is not rendered lawful by the occurrence of any subsequent event except—

(a) the commencement of an environmental planning instrument which permits the use without the necessity for consent under this Act being obtained therefor, or

(b) the granting of development consent to that use.

(2) The continuation of a use of a building, work or land that was unlawfully commenced is, and is taken always to have been, development of the land within the meaning of and for the purposes of any deemed environmental planning instrument applying, or which at any time applied, to or in respect of the building, work or land.

22. The site is located in the R3 Medium Density Residential zone, as defined in the Rockdale Local Environmental Plan 2011 (RLEP). The objectives of the zone as described in cl 2.3 of the RLEP are as follows:

Objectives of zone

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To ensure that land uses are carried out in a context and setting that minimises any impact on the character and amenity of the area.

(Emphasis added)

23. The proposed development complies with the numerical standards of the RLEP.

24. The Court is referred by the parties to the following sections of the RDCP for its consideration of the proposed development: streetscape (Part 4.2); car parking (Part 4.6); setbacks and building design (Part 5.1).

Evidence

25. The Court relies on the expert reports for planning and engineering, as tendered in evidence, together with observations made by the Court in the conciliation site visit.

Consistency with streetscape character

26. The key contention of Council is that the proposed carport is inconsistent with the streetscape character of the local area and leads to an undesirable precedence as demonstrated by the unlawful construction of carports in the area.

27. The design of the (proposed) carport is not in contention; however the issue lies in the location of the carport structure within the front setback of the site, forward of the building line.

28. The experts agree, of which I concur, that the local area has a wide variety of carport designs, some of which are located forward of the building line and within the front setback. Mr Winning cites 26 carports in the surrounding area that have carports in the front setback. The experts also agree that there is no evidence that these structures have been approved by Council.

29. Whilst the experts agree that the proposed design is of ‘high quality’, Mr Maloof contends that there is a visual impact to the street from the carport in its actual/proposed location. Mr Maloof states that the carport structure is not consistent with the character of the area, due to its position in the front setback.

30. The experts agree that the proposed carport, when viewed from the street would be visible and that it appears to be in line with boundary fences on adjoining properties. The experts also agree that the carport is located on the northern site boundary, adjacent (but not fixed) to an existing 1-2 masonry boundary fence.

31. The experts concur that the structure could be obscured from some view angles behind landscaping, although the effect would be to essentially only screen the structural beams. The experts agree that attempts to cover carport structures with vegetation in the front setback, as done on other properties in the area, do not result in a positive contribution to the streetscape.

32. The RDCP, Part 4.2, describes ‘streetscape’ as:

“Streetscape is the interrelationship between buildings, the public domain including the road and footpath, landscape elements and vegetation. Streetscape character helps to define local amenity and identity. As neighbourhood character can vary from street to street, new development should recognise predominant streetscape qualities, such as building form and front setbacks, scale, materials and colour to ensure a cohesive streetscape character.

The creation of attractive and safe street environments can foster the use of streets as places for social interaction and encourage pedestrian rather than motorised activity.”

33. The relevant objectives and controls for consideration as established in the (Part 4.2) RDCP for streetscape character state:

“Objectives

A. To ensure new development responds to, reinforces and sensitively relates to the spatial characteristics and legibility of the existing urban environment.

B. To ensure development responds to predominant streetscape qualities

…

Controls

….

9. Garages and carports are not permitted between the front building line and the front property boundary.

…

14. Vehicle entries are discrete and minimise conflicts with pedestrian

…

26. For low and medium density residential development, where a vehicular entrance is proposed in conjunction with a fence of height greater than 1.2m, a 45 degree splay or its equivalent is provided either side of the entrance to ensure driver and pedestrian safety. The splays are to have minimum dimensions of 0.9m by 0.9m.”

34. The experts agree that the proposed structure does not satisfy the setback controls in the RDCP, Part 5.1. The setback control for the street (front) setback in the R3 zone for a dwelling house is established as:

“• must be consistent with the prevailing setbacks in the street,

• if there is not a consistent or established setback, a 6m setback applies.”

35. In addition, the relevant building design controls (for a carport) in Part 5.1 of the RDCP are:

“Building design

…

14. Garages must be integrated with the overall design of the building in terms of height, form, materials, detailing and colour. They should not be a dominant feature of the building façade and detract from the streetscape.

15. Garages and carports are to be located a minimum distance of 300mm behind the front building line. The total width of the garage doors which address the street must be a maximum width of 6.3m or 40% of the site frontage width, whichever is lesser …”

36. An assessment of the streetscape character and site analysis are the first steps in the design process and are used to ensure that a development is the best possible solution for a site.

37. Streetscape refers to the way a street looks and helps to provide local amenity and identity. The presentation of structures in a street is the most critical element and determines the character of not only the street, but the locality.

38. ‘Good’ streetscapes are those in which the houses and associated spaces form attractive streets and neighbourhoods, as intended by the RDCP. New buildings, and alterations and additions to existing buildings need to be sensitive and in context with the landscape setting and the environmental conditions of a locality to satisfy the objectives of the zone as established in the RLEP.

39. There appears to be no dispute between the experts that the established setback on the site and in O’Connell Street is 6m. The experts however, disagree whether the ‘prevailing setback’ is influenced by the existing carports.

40. I do not agree that the ‘prevailing setback’ is defined by a predominance of carports. The relevant setback control for the zone ‘must be consistent with the prevailing setbacks in the street’. The experts did not take me to any carports ‘within the street’, being O’Connor Street. The carport structures that the applicant relies on as defining streetscape character are located in an adjacent street, although acknowledged in the surrounding area. The prevailing setback (for the street) relating to the site, I therefore observe has no structures, apart from front fences in the front (6m) setback.

41. I agree that the proposed height, length and structural frame of the carport is not out of scale for the existing dwelling. The proposed carport does not detract from the streetscape character by its visual appearance, and therefore, is not inconsistent with the building design objective number 14, in the RDCP.

42. However, it is clear from the objectives and controls for streetscape character established in the RDCP that it seeks carports to be positioned behind the building line, to have a subservient relationship to the dwelling.

43. I accept that there are a number of properties in the local area that have carports in the front setback. There is however no evidence before me that there has been a deviation exercised by Council in its implementation of the RDCP controls for carports in this zone, specifically the fact that none that I was taken to have approved consent for the structure. I consider these ‘unapproved’ carports cannot therefore inform the streetscape character, particularly as they are located contrary to the intent of the RDCP.

44. The experts agree, which I accept, that the proposed carport will be visible from the street (O’Connell Street). I also consider that the proposed structure will not form a dominant feature in the streetscape.

45. There is however no evidence before me that supports approving a carport in the front/street setback on the site. The site has access to a driveway and rear carport, albeit through a narrow driveway, and there is plenty of street parking. The location of the carport will establish an undesirable precedent and undermine the objectives of both the RDCP and RLEP to provide a landscaped front setback that define the streetscape character.

46. I find that the proposed carport is inconsistent with the (prevailing and established) streetscape character, and the street setback objectives and controls established in the RDCP, in addition to the objectives of the R3 zone, in section 2.3 of the RLEP, and specifically ‘To ensure that land uses are carried out in a context and setting that minimises any impact on the character and amenity of the area’. As a consequence, the proposed development does not satisfy the objects of the EPA Act, specifically s 1.3(c), for orderly development.

Safety and compliance with Australian Standards

47. Council contends that the proposed carport is located in a position on the site that would result in a risk to the safety of pedestrians.

48. The experts agree that the proposed structure does not satisfy the Australian Standard (AS) for car parking, AS 2890.1:2004. The location of the carport is less than 0.3m from adjacent obstructions, namely the adjoining property boundary wall, which would impede the opening of a car door.

49. Further to this, the car space associated with the proposed carport does not satisfy the AS requirements for a length of 5.4m and width of 4m. The car space relied upon is 5.4m long and 2.4m wide. The experts agree that the proposed length of the carport (4.2m) is insufficient to fully cover a car parked beneath it.

50. The planning experts agree that the length of the carport structure is impended due to the dimension of space available within the front setback and the protrusion of the front balcony. This therefore results in the proposed carport structure being located within 0.15m of the front boundary.

51. Mr Arulananthan considers that there is a potential risk to pedestrian safety when a car is parked in the car space beneath the proposed carport. A ‘B85’ and ‘B99’ vehicle would overhang the car space, and protrude over the (Council’s) pedestrian pathway.

52. In addition, he states that the height of the carport, which at its minimum is 2m high, does not satisfy the AS requirements for height of 2.2m, allowing for head room.

53. Mr Arulananthan also contends that the proposed carport relies on a car space that does not comply with the requirements established for these structures in Council’s technical specifications, requiring a car space to be 5.5m long and 3m wide.

54. I find it unacceptable for the applicant to potentially rely on utilising the Council’s pedestrian pathway when parking a car in an insufficiently sized space. Particularly when this could potentially result in a conflict with pedestrians and reduced sight lines to oncoming traffic. The proposed carport is contrary to the setback for carports and splay dimensions as described in building design control 15 of the RDCP. This control establishes a setback of 0.3m from the front boundary, which is not satisfied by the proposed development at 0.15m.

47. I find that the proposed carport and the car space that it relies on are too small to be functional on the site, without causing undue burden (right of access) and safety risk to the community.

48. The applicant has not provided sufficient assurance to the Court that pedestrian safety can be protected during the functioning of the proposed carport. The issue of safety is not sufficiently resolved in my mind to consent to the proposed development.

49. In consideration of the proposed development, I find ss 4.15(1)(c) and (e) of the EPA Act are not satisfied, because the proposed development is not suitable for the site and not in the public interest.

Conclusion

58. I have carefully considered the evidence relevant to the amended DA under appeal, together with my observations during the onsite view. Based on the information before me in evidence, I am satisfied in my assessment, pursuant to s 4.15(1) of the EPA Act that the proposed development is not consistent with the relevant development standards and controls, and requirements of the EPA Act. Therefore, I find I cannot give consent to the DA under this appeal.

Orders

59. Consequently, the orders of the Court are as follows:

1. The appeal is dismissed.

2. Development Application 2018/244 by Bayside Council (the Council) for a demolition of an existing carport and reconstruction of a new carport structure on Lot 8 DP 6524, also known as 22 O’Connell Street, Monterey is refused.

3. The exhibits are retained.

…………………….

Sarah Bish

Commissioner of the Court

**********

Decision last updated: 12 March 2020