Stackhouse v Ku-ring-gai Council

[2012] NSWLEC 1322

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Stackhouse v Ku-ring-gai Council [2012] NSWLEC 1322

Hearing dates:

22 November 2012

Decision date:

23 November 2012

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

1. The appeal is upheld in part.

2. Development Application (DA0120/12) for the construction of a carport at the front of an existing dwelling and the demolition of an existing driveway and manoeuvring area at 4 Braemar Place, Roseville is approved, subject to the conditions in Annexure A.

3. The exhibits, other than exhibits 2, A and B are returned.

Catchwords:

DEVELOPMENT APPLICATION: streetscape and parking safety.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Ku-ring-gai Planning Scheme Ordinance
Land and Environment Court Act 1979;

Category:

Principal judgment

Parties:

Helen Stackhouse (Applicant)

Ku-ring-gai Council (Respondent)

Representation:

Solicitors
Mr S Kondilios
Maddocks Lawyers (Applicant)

Mr T Flaherty
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

10972 of 2012

Judgment

1. This is an appeal against the refusal by Ku ring gai Council (the council) of a development application (DA0120/12) under the Environmental Planning and Assessment Act 1979 (EPA Act) for the construction of a carport at the front of an existing dwelling and the demolition of an existing driveway and manoeuvring area at 4 Braemar Place, Roseville (site).

1. The matter was heard on site under the provisions of s 34AA(2)(b)(i) of the Land and Environment Court Act 1979 (the LEC Act) as the parties failed to reach an agreement during the conciliation conference. The key issue between the parties is whether the proposed carport will adversely impact upon the streetscape and character of Braemar Place.

The site and its context

1. The site is located on the eastern side of Braemar Place below street level. It is irregular in shape with a frontage of 32.2 m, an area of 864 sq m and a slope of about 4 m from front to rear. The site is developed with a part single storey part two storey dwelling built in the 1970's. A double garage is located under the south east corner of the dwelling, which is accessed via a driveway along the southern boundary of the site with a manoeuvring area adjoining the garage.

1. The surrounding development is one and two storey detached dwellings with garaging generally integrated into the front of the dwelling.

The proposal

1. The proposal is for an open carport for two cars in the south west corner of the site. The carport would be setback about 2.5 m from the front boundary. It has internal dimensions of 5.235 m x 5.77 m and would comprise four corner posts supporting a pitched tile roof designed to match the existing dwelling. The carport would have a FFL of 64.13, which is slightly below the footpath level and about 1 m above ground level of the front of dwelling. There would be a brick balustrade around the south east corner and stairs to the front garden. A garden equipment store is proposed in part of the area beneath the carport floor.

1. The proposal also includes the removal of the existing driveway along the house and the manoeuvring area which adjoins the existing garage which will be replaced with landscaping. Although not part of this application, it is intended that the existing garage would be converted to a rumpus room.

The planning controls

1. The site is zoned Residential 2(a) under the Ku-ring-gai Planning Scheme Ordinance (KPSO) and the proposal is permissible with consent.

1. Schedule 9 of the KPSO includes general aims and objectives for residential zones that are relevant to the proposal:

1(a) to maintain and, where appropriate, improve the existing amenity and environmental character of residential zones; and

(b) to permit new residential development only where it is compatible with the existing environmental character of the locality and has a sympathetic and harmonious relationship with adjoining development.

1. The specific aim in Schedule 9 of relevance is:

(e) all new dwelling houses and additions to existing dwelling houses are of a height, size and bulk generally in keeping with that of neighbouring properties and, where larger buildings are proposed, they are designed so as not to dominate and so far as possible to harmonise with neighbouring development.

1. The Ku-ring-gai Residential Design Manual - Development Control Plan No. 38 (the DCP) applies to the site. The DCP includes a number of aims including one that is to encourage development which does not dominate, but harmonises with and contributes to the treed landscape and is sympathetic to the street and locality in which it is proposed (cl 1.2).

1. In addition, cl 4.1 of the DCP relevantly includes specific streetscape objectives:

(a) to ensure that development is sensitive to the landscape setting, environmental conditions and established character of the street and locality.

(b) To ensure that the appearance of new development is of a high visual quality, enhances the streetscape and complements good quality surrounding development.

1. Clause 4.1.1 refers to the Visual Character Study in Appendix A which is to be used to determine the components of visual character which the development should conserve and enhance. The site is in the visual character category 1945-1968, although the area was subdivided and the house built in the 1970s.

1. Clause 4.5 of the DCP provides objectives, assessment criteria and design requirements for access and parking. The objectives are:

a.To encourage the integrated design of vehicle access and functional car parking facilities to minimise adverse visual and environmental impacts on the streetscape.

b.To minimise stormwater run off from driveway surfaces.

c.To minimise the extent of hard surfaces forward of the building line.

1. Clause 4.5.3 provides assessment criteria relating to the design of carports and garages which require:

The design of carports and garage structures should be sympathetic to existing development on-site and consider adjacent buildings as well as proximity to drainage systems. Carport and garage structures should not dominate the site or the streetscape.

1. The design requirements in for cl 4.5.3 prescribe the following minimum standards:

The parking space, whether covered or uncovered, must be located at or behind:

the required front setback as specified in the DCP, or

the building line defined by the existing dwelling, whichever is the lesser

However, council will consider a reduced setback for structures on steeply sloping sites.

Where owing to limited side setback space (less than 3.6m) or topographical constraints it is not possible to locate the parking space behind the minimum permissible setback or the building line:

the structure must be open sided;

located at the maximum possible distance from the front property boundary; and

the design of the structure must be of a scale and form that is compatible with the streetscape character.

1. The key dispute between the parties is whether it is not possible to locate the carport behind the building line due to the width of the setback and the steepness of the site.

1. Clause 4.5 also includes assessment criteria and design requirements for Access (cl 4.5.5) which include:

Vehicular movement to and from the site should be designed to reduce potential conflict with street traffic and pedestrians and optimise safety.

Wherever possible, driveways must be located so that driver and pedestrian sightlines are clear.

1. Development Control Plan No 43 - Car Parking (Car parking DCP) is also relevant. It includes the aim to:

Provide objectives and guidelines for the design of parking and service areas, to ensure that these areas are safe, efficient and consistent with the desirable characteristics and environmental standards expected in the Ku ring gai area.

1. The Car parking DCP includes a rate of two car spaces for a dwelling (cl 3.1), parking area design (cl 4.1) and landscaping and urban design (cl 4.4).

The evidence

1. The Court visited the site and heard resident evidence. The key concern was that there are no examples of carports or garages forward of the building line and that the proposed carport was therefore uncharacteristic of the street, would be unattractive and establish an undesirable precedent. They also considered that the existing driveway and garages on the site were safe and easily utilised.

1. The Court heard expert planning evidence from Mr I Glendinning, for the applicant, and Mr S Ratcliff, for the council. Mr R Varga, for the applicant and Ms K Hawken, for the council, provided expert traffic evidence.

1. In Mr Varga and Mr Glendinning's opinion the proposed carport is necessary to address the safety issues associated with the current parking arrangements on the site.

1. Mr Varga and Ms Hawken agree that the current driveway does not comply with the requirements for driver visibility at the top of the driveway in Figure 3.3 - Minimum Sight Lines for Pedestrian Safety specifies in AS2890.1-2004. The ramp grade transitions at the top of the driveway do not comply with cl 2.6.2- Gradients as specified in AS2890.1-2004.

1. Mr Varga and Ms Hawken agree that the ramp grade transitions or scaping issue can be addressed by the reconstruction of the vehicle crossing and driveway for a length of about six metres. However, this would not address the sight line issue.

1. Mr Varga considers that the existing driveway is unsafe because it is too steep in the immediate vicinity of the front property boundary and that drivers exiting the site cannot see pedestrians in or approaching the footpath area. In his opinion, the proposal will address these safety issues.

1. Ms Hawken agrees that the current parking arrangement limits visibility of pedestrians but, in her opinion, it is similar to numerous other situations in the area and the safety issues are reduced due to the quiet nature of the cul de sac and the limited number of pedestrians. She acknowledges that the proposal will resolve any safety issues and that alternate proposals to address this issue would result in a significantly elevated structure behind the building line.

1. The key dispute between the planners is whether the discretion in cl 4.5.3 to permit carports forward of the building line is appropriate, given the "limited" width between the house and the southern side boundary. The survey indicates that the side boundary varies in width between 3.59 m and 3.61 m. Mr Ratcliff considers that if an average is applied, the width would be 3.6 m and that it is "possible" to locate the parking behind the building line, as this is currently the case. Mr Glendinning considers that the survey indicates that the majority of the side setback is below 3.6 m and that even though access is currently provided, the steepness of the site and the safety issues mean that this access is unsafe.

1. The experts agree that if the discretion in cl 4.5.3 applies then the carport meets the design criteria in cl 4.5.3 as it is open sided, located the maximum possible distance from the property boundary and of a scale and form that is compatible with the streetscape character. They also agree that it would not have unreasonable impacts on the amenity of adjoining properties.

1. Both Mr Glendinning and Mr Ratcliff agree that the placement of the carport in front of the building would have an "impact" on the streetscape. Mr Ratcliff considers that it is preferable to place the carport behind the building line as this will retain soft landscaping in the front setback area and maintain the existing character of Braemar Place. Mr Glendinning considers that replacement of the existing hard surface areas with soft landscaping will benefit the streetscape and that the carport structure is acceptable.

Findings

1. The key issue is whether it is justified to place a carport in front of the building line. Clearly the intent in the DCP is to locate carports behind the building line to minimise impacts on the streetscape. This is of added importance in a street such as Braemar Place where there are no structures forward of the building line. However, the DCP also recognises that this may not be possible due to topography or "limited" side setbacks. The access requirements of the DCP and the Car Parking DCP also seek to minimise potential conflicts with pedestrians and to optimise safety.

1. The existing dwelling has parking at the rear which is accessed via a driveway along the southern side setback. While this setback is marginally below the minimum 3.6 it is clearly possible to locate parking behind the building line as this is already occurring on the site. However, the agreed evidence of the traffic experts is that the access arrangements do not comply with AS2890.1-2004 and raise safety issues. While these may not be different to a number of other dwellings in the area, it is a sub optimal parking arrangement. The steepness and length of the driveway and its visual impact are also factors which indicate that the current arrangement is not consistent with what is sought by the planning controls.

1. The experts have examined a range of options to provide alternate parking on the site, including tandem parking adjoining the house. However, these do not resolve the safety issues or would result in a structure which is considerably elevated above ground level and the adjoining property.

1. I accept that the steepness of the site and the "limited" side access impose constraints on the provision of parking behind the building line, which while it is possible to do so, do not achieve the objectives for parking in the DCP. It is therefore not unreasonable to provide parking in front of the building line. However, the carport structure (roof and posts) would be uncharacteristic of the streetscape as there are no similar structures. Parking for two cars on a hardstand area would address the safety issue and is an acceptable option for the applicant. While this would increase the amount of hard surface in the front setback area and result in a partially elevated structure, I accept that it is not inconsistent with the character of the streetscape and will not result in a relationship with other development that is not in harmony. There are examples in the street of prominent hardstand areas in front of garages that are clearly visible from the street, particularly on its high side.

1. The provision of a hardstand area will also enable the removal of the driveway and manoeuvring area and its replacement with landscaping which will contribute to the amenity of the dwelling and the streetscape.

1. For these reasons the application, subject to a condition which deletes the posts and roof of the carport, is acceptable and meets the requirements of the planning controls.

Orders

1. The Orders of the Court are:

(1)   The appeal is upheld in part.

(2)   Development Application (DA0120/12) for the construction of a carport at the front of an existing dwelling and the demolition of an existing driveway and manoeuvring area at 4 Braemar Place, Roseville is approved, subject to the conditions in Annexure A.

(3)   The exhibits, other than exhibits 2, A and B are returned.

Annelise Tuor

Commissioner of the Court

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Amendments

28 November 2012 - Applicants name changed to Helen Stackhouse.

Amended paragraphs: Judgment Coversheet

Decision last updated: 28 November 2012