Sue Higgins v Leichhardt Municipal Council

[2004] NSWLEC 103

Land and Environment Court

of New South Wales

CITATION:

Sue Higgins v Leichhardt Municipal Council [2004] NSWLEC 103

PARTIES:

APPLICANT
Sue Higgins

RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S):

(1)0404 of 2002

CORAM:

Hussey C

KEY ISSUES:

Development Application :- alterations to an existing dwelling - on-site carparking

LEGISLATION CITED:

Leichhardt Local Environmental Plan 2000
Leichhardt Development Plan 2000

CASES CITED:

DATES OF HEARING:

03-04/02/2004

EX TEMPORE
JUDGMENT DATE :

02/05/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Pickles, barrister

RESPONDENT
Mr P Jackson, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

(1)0404 of 2002 Hussey C 5 February 2004

Sue Higgins
Applicant

v Leichhardt Municipal Council
Respondent Judgment

Background

1. This matter involves an appeal against a condition of consent imposed on a development at 25 Curtis Road, Balmain. The development involves building alterations to an existing dwelling and the provision of on site carparking with access over the footpath onto Curtis Road.

2. The appealled condition No. 3, requires the submission of amended plans with the Construction Certificate to effect:


(a) deletion of the proposed vehicular crossing to Curtis Road and the off site parking space forward of existing dwelling.


3 . The proposed carparking space is located adjacent to the eastern property boundary, with a setback of some 300 mm and is approximately 2.5 m wide with a gravel surface. The access gateway is to be controlled by an automatic sliding, picket gate. Perimeter landscaping of Plumbago and box hedge are also proposed for screening.

4 . The issues argued at the appeal concerned mainly the streetscape/conservation impacts of the proposal along with the parking related to the probable loss of a car space in Curtis Road.
The planning controls

Leichhardt Local Environmental Plan 2000
5 . The site is zoned Residential under the provisions of the LEP and the provision of a parking space ancillary to a dwelling is permissible with the consent of council. The site is located within a conservation area and is in the vicinity of items of environmental heritage.

Leichhardt Development Control Plan 2000

6 . The subject site is within the Mort Bay suburb profile and the provisions of Pt A105 and the provisions of Pt B 13 - Carparking also apply to the proposal.

The evidence
7 . Detailed evidence on behalf of council was presented by:

Ms K Gordon, consulting planner, and her report was Exhibit 2.

8 . For the applicant evidence was presented by:

Mr R Staas, heritage consultant architect, his report was Exhibit D,
Mr K Burrell, consulting town planner, his report was Exhibit C and
Mr S Pittendrigh, landscape architect.

9 . From her assessment of the current controls Ms Gordon did not consider the proposal for the front car space satisfactory because it was contrary to cl 13(2)(a) of the LEP which allows parking spaces that are designed with character, form and scale to:

(a) protect and enhance the area’s natural features, character and appearance.


10 . She said the proposed carparking space was contrary to this general objective because it would result in a detrimental impact on the streetscape by removing the “traditional garden” with its associated vegetation and replacing it with the intrusive element of a car space. As such she said the development did not protect or enhance the area’s character or appearance.

11 . With respect to the heritage objectives she acknowledged that while the site does not contain an item of heritage, the proposal would nevertheless have a detrimental impact on the locality which is in the conservation area. Furthermore, Ms Gordon did not consider the proposal satisfied the Urban Design Principles in cl 14, which provided for development to reinforce and enhance the streetscape character of the area. This was also due to the removal of the traditional garden setting and replacement with a carparking area. Whilst she acknowledged viewing opportunities through the existing non-complying front picket fence (1.7 m) high were limited she still did not consider the proposal was appropriate in this setting.

12 . From the evidence presented then, it is apparent that the streetscape issue concerns aspects of heritage/conservation considerations and urban design impacts. Mr Staas addressed the heritage considerations in his Heritage and Streetscape Assessment of the site. From this he noted the site is in the Urban Conservation Area which covers the whole of the Balmain Peninsula, but that there was no detailed heritage assessment of the level of contribution made by the individual buildings in this area. Nevertheless he acknowledged that the property is a contributing element being part of a group of single buildings on the northern side of Curtis Road, but he said its contribution was constrained by the existing dominating front picket fence. Accordingly he said that when the proposal was considered in the constraints of the local context, the car space would be:

• effectively screened from the east due to the minimal setback of No.23 and be;
• effectively screened by the picket fence and landscaping.


13 . Having considered the evidence on the streetscape impacts, it is apparent from the view that Curtis Road does contain a broad mix of dwelling types with variable building setbacks and some having “traditional” front gardens. However there is also evidence of front carparking spaces in the vicinity and that is in the case for the nearby of No.17 Curtis Road which has a similar sliding gate arrangement.

14 . Insofar as car spaces are not then prohibited by the controls, it seems to me that in this case the existing house is well setback to accommodate the on-site carparking space. Any adverse impacts are then considerably reduced by the proximity of the side-wall of No. 23, the proposed screening landscaping and the retention of the 1.7 m picket fence which, I consider would effectively screen any vehicle when the gate is closed.

15 . Whilst I accept there could be less than desirable impacts when the gate is left open nevertheless it would be an alternative view of the vehicle which could otherwise be seen when parked in the street. Therefore I am persuaded to accept Mr Staas’s conclusion (taking into account he is an experienced heritage consultant), that the proposal satisfies the provisions of LEP 2000 and it is not contrary to DCP 2000 because the hardstand area is well integrated into the revised front landscape setting so that it will not be detrimental to the heritage significance of the Balmain Conservation area or of the setting of the house on the subject site or any of its immediate neighbours.

16 . The other associated concerns the location of the car space connecting onto Curtis Road in terms of the building alignment and on street parking capacity. The site is conveniently located to the commercial activities in Darling Street and St Andrews Congregational Church and there is competition for the available street parking spaces according to Ms Gordon. The council’s policy on parking in this vicinity provides for meter parking in Darling Street, with marked bays, together with concessional resident parking permits and meter parking along Curtis Road fronting the site.

17 . According to Ms Gordon’s assessment, there is extreme parking pressure in this immediate area and the proposal would result in the alienation of one on-street parking space from public use by effectively restricting the kerb opening for private use.

18 . The controls for this element are contained in section B1.3 - Design Element Carparking of DCP 2000. With regard to the building alignment relevantly the controls state:

Where only front access is available provide carparking area such as garages and carports behind the main building alignment the front wall of the dwelling.


19 . Insofar as there was some argument regarding the interpretation of the associated diagram it appears to me that where front access is requested it should preferably be behind the main building alignment of the subject property, even if it is an open paved area as in the subject proposal. Therefore I do not think the DCP encourages the proposed form of parking, in front of the dwelling and accordingly I consider this is a negative aspect of the proposal, even though there is the physical space for a vehicle.

20 . Notwithstanding this I consider the most critical aspect concerns the probable loss of one on-street carparking space due to the construction of the kerb layback. In this regard the DCP controls provide that:

No on site parking is allowed for single dwellings on one allotment where vehicular crossings disrupt the continuity of the footpath and verges and reduces on street carparking capacity.

21 . Mr Burrell addressed this aspect on the basis that he considered the crossing would not disrupt the continuity of the verge or diverse elements of the streetscape. With regard to the possible loss of one on street carparking space Mr Burrell indicated on his diagram in Ex E that with disciplined parking, that this loss was not inevitable. His diagram indicates three spaces between No. 17 and the crossing wing, (Section A), together with a further four spaces towards Thames Street, (Section B). In my assessment this proposition is optimistic. The suggested car spaces are generally 5.35 m in length. However A S 2890.1 provides for enclosed parking bays to have a minimum length of 6 m whilst the end spaces may be reduced to 5.4 m. Furthermore the Australian Standard notes:

3. Where parking turnover is high and vehicles backing into parking spaces cannot be readily tolerated, increased space lengths up to 8 m should be considered.


22 . On balance then, I am inclined to accept Ms Gordon’s evidence that this proposal would most probably result in the loss of one on-street parking space due to the requirement for the new 4.3 m kerb opening. In these circumstances it seems reasonable to me to adopt the A.S. provisions for a minimum 6 m bay as a reasonable standard, considering the competition for these spaces and tendency to “squeeze” in cars at peak times. If a more conservative approach was taken in the interests of public safety and convenience, then it would be desirable to allow 8 m bays, considering the demand and turnover for these limited on-site carparking spaces, which confirms the loss of at least one space.

23 . Accordingly I do not consider this proposal satisfies the DCP requirement in s B13 because the vehicular crossing will most probably result in the reduction of one on-street carparking space in a location where this is in high demand. I also note from the council officer’s assessment report that over recent times the owners of this property have consistently been informed that direct access onto Curtis Road would not be permitted. In my opinion then there was no compelling evidence to demonstrate this policy should be disregarded in this case.

Conclusions.
24 . Having considered the evidence and undertaken a view I do not consider this application merits consent primarily because it necessitates the construction of a kerb opening which in my opinion will result in the loss of one on-street carparking space. The property is located within an Urban Conservation Area where many of the surrounding properties do not have on-site parking and consequently there is competition for this limited on-street parking.

25 . Accordingly the council controls seek to address this by way of designated meter parking with the concessional resident parking to share the available space adjacent to this property. As the construction of this particular crossing necessitates the exclusive use of this area for the private driveway, then I rely on the conclusion of Ms Gordon that:

The loss of an on-street parking space in order to provide off street parking space is contrary to the public interest of the appropriate management of the limited on-street parking supply in this area of Balmain. The proposal would result in a private benefit for one property at the expense of numerous other property owner’s, the residents and visitors to the area.


26 . This leads to my conclusion that condition 3 is reasonable and should be retained.

27 . Furthermore while some front parking is allowed, I do consider the DCP does not encourage it in the form proposed which is well forward of the subject property building alignment although in this case I accept that the car space could be reasonably screened.

Court orders

1. The appeal is dismissed.

2. Condition 3 of Development Consent D/2002/7, for on-site carparking at No. 25 Curtis Road, Balmain, is retained.
3. The exhibits may be returned except for Exhibits 2, 5, A, D and G.

__________________
R Hussey
Commissioner of the Court
nm