Vasiliou v Woollahra Municipal Council
[2013] NSWLEC 1050
•26 March 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Vasiliou v Woollahra Municipal Council [2013] NSWLEC 1050 Hearing dates: 25 March 2013 Decision date: 26 March 2013 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is upheld
2. The application under s96(2) of the Environmental Planning and Assessment Act to modify development consent (DA259/10) for alterations and additions to an existing terrace at 34 Gosbell Street, Paddington is approved subject to the conditions in Annexure A.
3. The exhibits may be returned
Catchwords: DEVELOPMENT CONSENT - modify development consent to remove condition requiring deletion of parking space. Whether adequate private open space provided. Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act
Woollahra Local Environmental Plan 1995Category: Principal judgment Parties: Stavros Vasiliou (Applicant)
Woollahra Municipal Council (Respondent)Representation: Mrs ML Taylor of Bartier Perry (Applicant)
Mr K Webber of Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 10023 of 2013
Judgment
This is an appeal under s97AA of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Woollahra Municipal Council (council) of an application under s 96(2) to modify development consent (DA259/2010) for alterations and additions to an existing terrace at 34 Gosbell Street, Paddington (site).
The s96 application seeks to delete condition C1(f) of the development consent, which requires the proposed onsite parking space, raising of the existing rear courtyard levels, wheel stopper, vehicle entry gate and the proposed driveway cross over, to be deleted.
Site and locality
The site is generally rectangular in shape with a frontage of 4.69 m to Gosbell Street and a depth of 25 m with a total area of 116 sq m. The rear of the site fronts Dillon Lane and there is about a 3.3 m fall between Dillon Lane and Gosbell Street.
There is a two storey terrace on the site which is at the end of a group of terraces (2-34 Gosbell Street).
The site adjoins a large commercial building which is built to the western boundary of the site. Surrounding development is predominantly two storey terraces.
Proposal
The development consent approved works to the terrace including: reconstruction of the front verandah balustrade and palisade fence; demolition of rear infill additions; internal alteration and an attic in the roof space with dormer window. The development consent also approved a courtyard (1.090 m x 4.590 m) directly off the family room to the rear and a landscaped court (5 sq m) to the side of the kitchen and family room. The plans approved under the development consent also proposed a "parking court" which included a parking space (3 m x 5.4 m) and planter beds along the side boundaries. The "parking court" was raised above the level of the existing ground level and the proposed courtyard, to be directly accessible off Dillon Lane. Condition C1(f) of the development consent deleted these and other works associated with the proposed "parking court".
The s96 application seeks the deletion of Condition C1(f) and thereby the approval of the onsite parking space.
Planning Framework
The site is zoned Residential 2(a) under Woollahra Local Environmental Plan 1995 (LEP 1995). The development is permissible with consent. It is within the Paddington Heritage Conservation Area. The Paddington Heritage Conservation Area Development Control Plan 2008 (DCP) applies to the site.
Evidence
A conciliation conference under s 34AA of the Land and Environment Court Act (LEC Act) was held on site. The parties did not reach agreement and the conciliation conference was terminated and a hearing held forthwith. The parties agreed that the evidence heard onsite and the view could be evidence in the hearing.
The Court heard from Ms R Atuell, on behalf of the Paddington Society. She outlined the key concerns of the Society and referred to its written submissions. The society considered the site is too small to accommodate a parking space as it would occupy most of the usable open space and impact on the amenity of the occupants and adjoining property. The raising of the ground level to provide the "parking court" would result in the potential for overlooking of the adjoining terrace and impact on drainage. The proposal provided inadequate deep soil planting and only a 1 m wide space of the rear of the dwelling directly accessible from a living area. Further, the provision of a car space onsite would result in the loss of an on street parking space. The Society stated that the proposal did not comply with objectives or provisions for onsite parking and open space in the DCP.
Mr M D'Alessio, for the council, and Mr M Neustein, for the applicant, provided planning evidence.
Mr D'Alessio explained that council was satisfied that the proposal would not result in a net loss of parking in Dillon Lane due to the distances between the "no parking" (roller door) at 36 Gosbell Street and the existing garage at 26 Gosbell Street. Further, impacts on amenity and drainage were considered acceptable and the provision of off street parking from Dillon Lane did not have an adverse impact on the conservation area.
The key contention initially raised by council was the adequacy of open space to be provided at the rear. Mr D'Alessio acknowledged that the numerical amount of open space and deep soil planting complied with the DCP controls. However, he did not accept the dual use of the carspace for parking and open space. In his opinion, if a car was parked there would be insufficient provision of principal private open space. The courtyard directly accessible off the family room did not have a minimum dimension of 3 m and therefore did not comply with objective 04 and control C4 in cl 4.1.7 of the DCP.
The applicant has agreed to the imposition of a condition which would increase the width of the rear courtyard directly accessible off the family room to 1.9 m with a length of 4.59 m (less side wall thickness). Mr D'Alessio accepted that with this increase in width, the proposal would meet objective 04 of cl 4.1.7 "to ensure that provision is made for accessible and usable private open space at the rear of properties".
Although there would remain a non compliance with the minimum dimension control in C4 of cl 4.1.7, Mr D'Alessio considered this to be acceptable as the courtyard is directly accessible off the family room and was of sufficient dimensions to provide a usable and accessible area of open space. The courtyard at the side of the dwelling provided an additional area of open space off the kitchen and family room and the two areas provided an appropriate alternative design solution, which met the objectives of cl 4.1.7 of the DCP.
However, in reaching this conclusion, Mr D'Alessio raised concerns that the increase in width of the courtyard would reduce the length of the car space to 4.5 m, which would not comply with the requirements of C1(h) of cl 4.2.6 of the DCP that "an uncovered car space has a minimum dimension of 3m x 5.4 m".
Mr D'Alessio accepted that an 85th percentile vehicle could still manoeuvre into and out of the space without the loss of on street parking but could not be accommodated within the space without overhanging the courtyard. The amended proposal, in his opinion, therefore did not meet C6 of Cl 4.2.6 of the DCP. Mr D'Allessio accepted that the space would adequately accommodate 50th percentile car, such as a Toyota Corolla, and that small cars were common in Paddington. He acknowledged that a condition requiring a restriction on title that only small cars be accommodated in the parking space would largely alleviate his concerns.
Mr Neustein considered that the original proposal provided for dual use of the car space as open space and was acceptable. The proposed amendments resulting in the increase in width of the courtyard and the decrease in length of the car space would ensure that more than adequate open space was provided as well as a car space which could meet the needs of the current and future occupants of the terrace.
Mr Neustein considered that the amended proposal met the objectives for on site parking in cl 4.2.6. The controls in C1(h) and C6 for a 5.4 m length are based on the 85th percentile car in the Australian Standard and did not reflect the trend for smaller cars, particularly in Paddington. The carspace would be more than adequate to accommodate a small car.
Findings
The rear of the terrace faces south and adjoins a large commercial building and currently provides poor amenity to the dwelling. The development consent will improve the amenity by removing the ground floor infill addition thereby revealing the rear wall and balcony over as well as locating a living area directly accessible to rear open space.
The amended proposal has addressed Mr D'Alessio's concerns and council's contentions about the adequacy of the proposed rear open space due to the width of the courtyard. The proposal now provides a courtyard to the rear of the family room as well as a side court which together provide usable and accessible open space which meets objective 04 of cl 4.1.7 in the DCP.
The car space is of sufficient size to accommodate a small car. An 85th percentile car can still access the site but would over hang the courtyard and is therefore not supported by Mr D'Alessio. A condition is to be imposed which would limit the use of the car space to small cars. The proposal therefore meets the objectives for onsite parking in cl 4.2.6 of the DCP. When the car space is not being used it will provide additional open space beyond that which is required by the DCP.
I therefore accept that condition C1(f) of the development consent can be deleted and replaced instead with an agreed conditions that require the increase in width of the rear courtyard and the restriction on title for the use of the car space.
Orders
1. The appeal is upheld
2. The application under s96(2) of the EPA Act to modify development consent (D259/10) for alterations and additions to an existing terrace at 34 Gosbell Street, Paddington is approved subject to the conditions in Annexure A.
3. The exhibits may be returned
Annelise Tuor
Commissioner of the Court
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Decision last updated: 27 March 2013
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