Woolf v Waverley Council

[2013] NSWLEC 1170

Land and Environment Court

New South Wales

Medium Neutral Citation:	Woolf v Waverley Council [2013] NSWLEC 1170
Hearing dates:	10 September 2013
Decision date:	11 September 2013
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal dismissed
Catchwords:	Modification: Deletion of a condition; parking forward of building line; non-compliant dimensions; changes to DCP; stormwater and drainage.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 2012
Cases Cited:	Deguara v Waverley CouncilCoop v Waverley Council [2012] NSWLEC 1305 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 742 Zhang v Canterbury Council [2001] NSWCA 167
Category:	Principal judgment
Parties:	Ryan Woolf (Applicant) Waverley Council (Respondent)
Representation:	Applicant: Mr D Loether (Solicitor) Respondent: Mr T Flaherty (Solicitor) Applicant: Bartier Perry Respondent: Wiltshire Webb Staunton Beattie Lawyers
File Number(s):	10476 of 2013

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. COMMISSIONER: In 2008, Waverley Council granted consent for alterations and additions to a semi-detached dwelling at 5 Roe Street, North Bondi (the site). Amongst other things, that development application sought a car space forward of the building line.

1. Development Consent No. 496/2008 included condition 2(b) which stated:

2. GENERAL MODIFICATIONS

The proposal shall be amended as follows:

(b) The proposed hardstand car parking space in the front yard is not approved as the location and size of the car parking space is in direct conflict with Development Control Plan 2006.

1. The applicant has appealed to the Court under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) seeking consent to Modification Application DA-496/2008/A for the deletion of that condition of consent and subsequent construction of a hardstand car parking space in front of the existing dwelling.

The issues

1. Council's reasons for refusal and the key contentions are:

· Inadequate setback for parking space - the length of the proposed hardstand is less than 5.5m as stipulated in Waverley Development Control Plan 2012 and therefore does not comply.

· The provision of a car space along with proposed paths and bin storage area will result in inadequate landscaping.

· The provision of off-street parking will result in the loss of one on-street parking space thus making it harder for other residents and their visitors.

· The design of the hardstand is inappropriate and impractical in regards to loading and unloading a vehicle and access to the dwelling.

· Approval of the proposal would set an undesirable precent given the relatively new DCP. It is not in the public interest as demonstrated by the submissions of nearby residents.

· Insufficient information as to the impact of the proposed crossover on council's stormwater infrastructure and local flooding. Similarly, inadequate information regarding drainage for the proposed hardstand.

The site and locality

1. The site is a part one part two-storey semi-detached dwelling on the southern side of Roe Street. The attached dwelling to the east is on a wider lot and has a carport to the eastern side of the dwelling. The adjoining property to the west is a free standing cottage with hardstand parking forward of the building line and to the side of the property.

1. The front of the site is bounded by a discontinuous masonry wall. The plans indicate that the front yard was filled and retained to create a space level with the footpath at the front of the site. However, the plans do not accurately reflect the as-built position of the southern retaining wall. At the time of the hearing, the unpaved surface of the retained area was bare soil.

1. A pedestrian gateway remains however double gates installed towards the centre of the wall have been removed. Waste and recycling bins are currently housed on a paved strip on the western edge of the retained area; steps lead down to a side entrance. Pedestrian access down to the front door is via steps and paving on the eastern side of the front yard. Paving between the front of the dwelling and the southern end of the retaining wall provides pedestrian access between the front door and the side entrance to the west.

1. The street is a mixture of single and two-storey detached and semi-detached dwellings of varying architectural styles and ages on lots of varying width.

1. The mid to eastern end of the northern side of Roe Street is characterised by garages and carports forward of the building line and consequently little landscaping. The southern side of the street is characterised by landscaped front gardens and a variety of parking arrangements including a number of properties with no off-street parking.

1. The street adjoins Old South Head Road at its western end; the eastern end is a one-way exit to the south.

1. At the time of the hearing, there was no observed shortage of on-street parking spaces.

The assessment framework

1. The site is zoned Residential R2 under the Waverley Local Environmental Plan 2012 (WLEP). The objectives of the zone are to:

• Provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

1. Waverley Development Control Plan 2012 (WDCP 2012) Part C - Residential Development is relevant in particular, cl. 1.10 Vehicular Access and Parking. The objectives and relevant controls are as follows:

Objectives

(a) To ensure that the design, location and size of off-street carparking areas do not unreasonably detract from the appearance and quality of the dwelling-house or streetscape.

(b) To maximise pedestrian and vehicular safety.

(c) To minimise loss of on-street carparking.

(d) To minimise loss of views from the public domain.

Controls

(d) All carparking must be sympathetic in architectural character to the dwelling.

(e) Car parking accommodation must not dominate or impact on the existing built or landscape character of the street.

(h) All parking accommodation is to be constructed or installed so that any roof or surface water is disposed of into the existing stormwater drainage system.

(i) No part of the street façade of a building is to be altered or demolished primarily to accommodate car accommodation unless it is sympathetically integrated into the design of the dwelling.

(j) For existing development, car spaces should be sited having regard to the following hierarchy:

(i) garage or carport located at the rear of the site with access from a rear lane (most favoured approach);

(ii) garage or carport located at the rear of the site with access from the street frontage;

(iii) garage or carport located at the side of the dwelling behind the building alignment; or

(iv) hardstand car space forward of the front building line.

(l) Garages, carports and hardstand areas should have minimum internal dimensions of 5.5m x 2.5m per vehicle.

(m) A hardstand or carport (in the form of wheel strips) forward of the building line may be permitted where:

(i) There is no rear access;

(ii) The site is of sufficient width where the car space will not dominate the existing building (i.e. does not exceed 45% of the width of the site frontage);

(iii) It is no greater than a single car space;

(iv) The distance between the building and the front property boundary is a minimum of 5.5m;

(v) Public views would not be adversely affected;

(vi) There is a predominance of this form of off street car parking in the immediate vicinity of the site;

(vii) It is designed so that it does not detract from the building and its landscape setting;

(viii) It is designed so that it does not detract from the heritage significance of the building or area;

(ix) There is limited availability to public transport;

(x) There is a high availability of on-street parking in the immediate locality;

(xi) The safety of vehicles, pedestrians and cyclists is maintained, and

(xii) There is adequate bin storage other than on the hardstand.

(w) A site analysis is required illustrating the number of on street spaces provided before and after the proposed crossing.

(z) The design of parking is to be in accordance with all the relevant Australian Standards.

1. Clause 1.11 Landscaping and Open Space is relevant. The relevant objectives and controls are:

Objectives

(a) To enhance the amenity and visual setting of the site, streetscape, and surrounding neighbourhood.

(b) To ensure the provision of open space in a size and arrangement that meets user requirements for recreation, service and storage needs, solar access and is well integrated with living areas.

Controls

(e) A minimum of 50% of the area between the front of the building and the street alignment is to be open space.

(f) A minimum of 50% of the open space provided at the front of the site is to be landscaped area.

1. 'Landscape area' is defined (including in the WLEP) as: a part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area'.

1. 'Open space' is not defined in WLEP but cl. 1.11 WDCP 2012 states:

Open space has a broader meaning than landscaped area and means an area external to a building (including an area of land, terrace, balcony or deck) and includes hard paved areas, areas containing swimming pools as well as landscape areas.

The hearing and the evidence

1. The matter commenced on site as a mandatory conciliation in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. As no agreement was reached during the conciliation phase, the conciliation conference was terminated pursuant to s34AA(2)(b) and the proceedings dealt with forthwith pursuant to s 34AA(2)(b)(i).

1. Oral submissions were made by two nearby residents, one of whom owns the property adjoining the site, and the other owns the property two doors to the east. Both objectors lodged written objections to the proposed development with council. Their key concerns are:

· non-compliance with council controls and the absence of proof of exceptional circumstances that would warrant a departure from the controls;

· a possible increase in local flooding in a section of the street where flooding is already a major problem.

1. Given the range of issues arising from the proposal, the parties engaged experts or used in-house staff from several fields - planning, traffic, and drainage. The experts prepared joint statements and attended the hearing.

Drainage and stormwater

1. The applicant engaged Mr Drew Bewsher and the council relied on its engineer Mr Minas Kassiou.

1. There is an existing stormwater pit and inlet at the front of the site. Given the slope of the street, construction of the proposed driveway would result in possible diversion of stormwater runoff off the road onto the footpath as well as a reduction in the efficacy of the existing pit. This would exacerbate the existing drainage and flooding issues faced by properties to the east of the site.

1. The applicant proposes a new pit with a 3.6m kerb inlet and gutter grate to be provided in one of two locations. Location 1 is to the east of the proposed driveway and existing pit but close to an established street tree. Location 2 is upslope and to the west of the proposed driveway.

1. Council's arborist gave oral evidence to the effect that Location 1 would have an unacceptable impact on the health and structure of the tree and he would not support that location however, he had no concerns regarding location 2.

1. The experts agreed that the existing pit will still function and assist with any build up of water from down slope and a new drainage pit at location 2 will collect runoff from upslope thus potentially reducing runoff reaching lower levels. When combined with the installation of a grate at the edge of the proposed hardstand, drainage of the hardstand itself, and reconstruction of the existing footpath [discussed with traffic and parking experts], the proposed measures were acceptable and capable of being conditioned. They acknowledged that the construction of a new pit at location 1 or 2 would have no significant impact on the ponding that occurs during heavy storms, as this is a consequence of the topography and the limited capacity of the existing Sydney Water drainage conduit.

Traffic and parking

1. Mr Craig McLaren gave evidence for the applicant and for the council, Mr Geoff Garnsey, council's Manager - Transport and Development.

1. The traffic experts agreed: that the proposal does not necessarily result in the net loss of an on-street parking space as the on-site space replaces an on-street space otherwise used by the applicants; on-site parking is desirable and safer for children; and the street is not under parking stress and that spare parking is always available during the day and most times during the night. Neither expert perceived any problems, on the grounds of safety or practicality, with passengers or drivers alighting from the vehicle or unpacking it.

1. Mr Garnsey and Mr McLaren, while taking different approaches in their reasoning, agreed that notwithstanding the non-compliant length of the proposed hardstand, a condition of consent that restricts the use of the hardstand to a car of a limited size is possible. They agreed that any vehicle using the space should not exceed 4.660m, which includes B67 vehicles. They also agreed that a condition requiring the repositioning of the rear retaining wall and the inclusion of wheel stops on top of the wall would be appropriate if the proposal were to be approved.

Planning

1. Ms Kerry Gordon gave evidence for the council and Mr Brett Daintry for the applicant.

1. During the on-site inspection, a number of issues were discussed and considered capable of conditioning: including: the actual location of the rear retaining wall and the need for its relocation closer to the wall of the dwelling; relocation of all except one waste bin from the front setback to the side of the house; lowering of the level of paving at the base of the wall of the dwelling for compliance with the BCA; access to the letter box and gas/water meters; and the extent and height of landscaping within the front setback in relation to a parked vehicle.

1. The planners considered the definitions of 'landscaped area' and 'open space' in the WDCP and determined that it was possible to comply with the relevant controls if the retained portion of the front setback includes at least 3.9-4m2 of small trees, shrubs and groundcovers and the area between the garden beds and wheel strips is turfed. They agreed that should the proposal be approved, a condition requiring a sketch plan indicating species and heights be prepared for assessment.

1. The significant differences between the planners go to the acceptability of the non-compliant length of the proposed hardstand, especially in the light of a new DCP, and the level of available on-street parking. In particular, the planners differ in their interpretation of "the immediate vicinity" and therefore on the predominance or otherwise of the form of off-street parking. These differences go to the relevant considerations in cl. 1.10(m) of WDCP.

1. Ms Gordon considers that the immediate vicinity is the visual catchment of the site and is effectively confined to the western end of the street, whereas Mr Daintry considers the Macquarie Dictionary meaning of 'neighbourhood' is reasonable, and at the very least, 'immediate vicinity' is the street (being a relatively short street).

1. In Ms Gordon's opinion, hardstands in front of dwelling are not a predominant form of parking; Mr Daintry considers they are.

1. In order to determine the range of car-parking styles, the Court with the planners and solicitors undertook a survey of the street. Taking three properties either side of the site and seven opposite the site (to represent Ms Gordon's position): 4 properties have no on-site parking, 3 have parking forward of the building line (I being a garage), 5 have parking to the side of the dwelling, and 1 has a rear garage.

1. Of the 53 properties in the street (excluding the site)(Mr Daintry's position): 20 had no on-site parking; 7 have side parking; 2 have a rear garage; 2 have rear land access; 4 have hardstand forward of the building line; 16 have a garage/carport forward of the building line; and 2 newer dwellings have garages integrated into the building.

1. In regards to parking availability, Mr Daintry calculated 66 on-street spaces and 54 off-street spaces including 7 with rear lane access, which is 2.2 spaces per dwelling. In his opinion, the loss of one on-street space for one off-street space will make no real difference. Ms Gordon relies on the applicant's assertion in the Statement of Environmental Effects that parking is difficult.

1. In essence, Ms Gordon's view is that WDCP 2012 is a significant departure (and improvement) from the previous DCP in that it carefully lists all the criteria that must be satisfied if parking forward of the building line is to be approved. She maintains that as the length is non-compliant and the style is not characteristic of the immediate vicinity, it should be refused in order to maintain the integrity of the new controls. Ms Gordon considers imposing a condition to limit the vehicle length to be impractical and difficult to enforce, especially as enforcement places a burden on council's compliance system.

1. Mr Daintry considers that apart from the length of the hardstand, the proposal is fully compliant with all other controls in cl. 1.10(m) of WDCP 2012. In his view, consistent with Court findings in other cases involving non-compliant spaces (such as Deguara v Waverley CouncilCoop v Waverley Council [2012] NSWLEC 1305), conditions can be imposed limiting the size of the vehicle. Any non-compliance, including illegal parking beyond the property line, can be dealt with by the imposition of a Penalty Infringement Notice.

1. The only other area of difference between the planners worth mentioning is their reliance or otherwise on the zone objectives. In Mr Daintry's view, the objective to "provide facilities or services to meet the day to day needs of residents" applies to such things as on-site parking and therefore should be determinative. Ms Gordon does not agree and considers the objective refers to non-residential land uses such as corner shops and the like and not car parking for residents.

Submissions

1. Mr Loether for the applicant contends that the proposal should be supported in the particular circumstances of the site, and while there is an agreed non-compliance with the length of the space, the matter is capable of being resolved with the imposition of appropriate conditions. Although parking forward of the building line is the least desired form of on-site parking, Mr Loether states that the WDCP 2012 nevertheless rates it as a valid measure.

1. In regards to the ancillary issues of stormwater and drainage, Mr Loether contends that the proposed measures will improve the drainage situation and therefore be in the public interest.

1. Mr Flaherty for the council reminds me of the importance of DCPs in the assessment process under s 79C of the Act as expressed in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 742 and Zhang v Canterbury Council [2001] NSWCA 167. He takes Ms Gordon's position that the WDCP 2012 sets the criteria by which the proposal must be assessed and that any deviation from the controls could set an unacceptable precedent, not necessarily in the street, but within the entire local government area.

Findings

1. I have considered the evidence of the experts and I have had the benefit of viewing the site. I agree with the parties' legal representatives that the DCP musty be the focus of my assessment; I also agree that WDCP 2012 provides far more assistance than its predecessor in determining the appeal. To that end, I will consider each of the elements of cl 1.10(m) which are in dispute between the planners.

1. The predominance or otherwise of "this form of off street car parking in the immediate vicinity". In this matter, the form of off-street parking is a hardstand (with no overhead structure) forward of the building line. Considering the results of the survey conducted during the hearing (see [34]-[35]) hardstands forward of the building line are not the predominant form in either the immediate vicinity of the site or of the street. The nearby predominant form is parking is to the side of the dwelling; and for the street, the predominant form is garage forward of the building line - a form not anticipated in WDCP 2012.

1. In regards to the hardstand closest to the applicant's property (the adjoining property to the west), it is located to the side of the property with open space behind. It is my recollection that this is the case with at lest two of the other hardstands. Therefore, a hardstand immediately in front of a dwelling is certainly not the predominant form.

1. While the WDCP 2012 does not require a hardstand forward of the building line to be anywhere in particular, it should be designed so that it does not detract from the building setting. While I must accept Mr Daintry's calculation that the space will occupy 42% of the site frontage, which is less than the maximum 45%, I consider that the car space will dominate and detract from the building line. The site is quite narrow in comparison to adjoining blocks and there is a limited side setback to the west.

1. Although the proposal satisfies many of the criteria, and the various experts were prepared to consider a range of conditions of consent, on balance, I am not satisfied that the non-compliance with the length of the car space is minor, particularly as the form of parking is not a characteristic of the street or the nearby properties. In my view, a less than compliant space also compromises the extent to which landscaping can effectively be used in order to offset the visual impact of the car space on the dwelling, although I acknowledge the planners' agreement that compliant landscaping could theoretically be installed around the constraints of car doors and bin storage.

1. While the majority of the experts consider there is adequate availability of on-street parking, one of the criteria for permitting on-site parking, it also indicates that on-site parking, while convenient, may not be essential.

1. Similarly, while the provision of an additional drainage pit in the kerb may capture additional run-off, the drainage experts agreed that it would make no difference to the flooding problem as a consequence of the inadequacy of existing Sydney Water infrastructure. Therefore while there may be some community benefit in approving the hardstand in order to provide additional stormwater collection, I am not convinced that it outweighs the areas of non-compliance with WDCP 2012.

1. To that end, I am not satisfied that the proposal achieves objective (a) of cl. 1.10 in Part C of WDCP 2012.

1. In regards to the difference in opinion as to the intent of the zone objective and its applicability to the proposal for off-street parking, I agree with Ms Gordon that the objective provides for ancillary land uses as identified in the range of developments permitted with consent within the zone.

1. I am mindful that LEPs and their DCPs evolve, and at each review they are modified to reflect the planning issues of their time and often to anticipate the planning needs of the future. They may also be amended to correct deficiencies in previous versions or to provide further guidance or clarification. To that end DCPs must be given considerable weight -as discussed in Stockland. It was agreed by all present that the previous Waverley DCP provided applicants, the council and the Court with little assistance in regards to applications for parking forward of the building line, hence the wide range of findings. WDCP 2012 provides a comprehensive and considered list of criteria that should all be satisfied.

1. I am also reminded in Zhang that while the WDCP is the focal point for my consideration of the appeal, I am not required to adopt it uncritically. However, in the circumstances of this matter, and after consideration of the matters under s 79C of the Act, I find that on balance that I cannot support the construction of a hardstand parking space forward of the building line.

Orders

1. As a consequence of the foregoing, the Orders of the Court are:

(1)   The appeal is dismissed.

(2)   Modification application DA -496/2008 A to delete condition 2(b) from development consent DA 496/2008 on Lot A in DP 415011 being 5 Roe Street, North Bondi, is determined by refusal.

(3)   The exhibits except A and 1 are returned.

__________________

Judy Fakes

Commissioner of the Court

Decision last updated: 13 September 2013