Young v Randwick City Council

[2010] NSWLEC 1345

Land and Environment Court

of New South Wales

CITATION:

Young v Randwick City Council [2010] NSWLEC 1345

PARTIES:

APPLICANT
Robert Young

RESPONDENT
Randwick City Council

FILE NUMBER(S):

10752 of 2010

CORAM:

Hussey C

KEY ISSUES:

DEVELOPMENT APPLICATION :- Small parking area; safe and convenient maneouvre; streetscape impact.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Randwick Local Environmental Plan 1998

CASES CITED:

Hamedami v Waverley Council [2004] NSWLEC 617

DATES OF HEARING:

8 December 2010

 
DATE OF JUDGMENT: 

15 December 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Doyle (Barrister)
AGENT
Australian Town Planning Consultants 2 Pty Ltd

RESPONDENT
Mr C McFadzean (Solicitor)
SOLICITOR
Shaw Reynolds Bowen & Gerathy

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

15 December 2010.

Appeal No 10752 of 2010 Young R v Randwick City Council

JUDGMENT

1 This appeal was lodged against council’s refusal of a development application for the provision of a small, angled parking space in the front setback area at 132 Paine Street, Maroubra. The issues identified by council are summarised as follows:

• Inadequate area of the proposed parking space.
• Inconvenient access and excessive manoeuvring requirement.
• Streetscape impacts.
• Off street parking requirements.
• Pedestrian access.
• Bus stop location.

The site

2 The site is described as Lot B in DP 397542. It has a total area of 222.4 sq m and frontage of 5.865 m. The subject site contains the south-western half of a single storey semi-detached dwelling. This dwelling has a street setback of approximately 4.7 m.

3 The front yard area of the premises has been substantially paved and it contains some perimeter planting. There is an existing bus stop adjacent the front of the property.

4 The proposal is depicted in Attachment AA and described as:

• provision of a small parking space (2.3m wide x 5.1m long) within the front setback area, set at an angle of 30⁰ to the front boundary (i.e requiring a car to divert 60⁰ from the driveway's perpendicular approach to the front boundary from the street);
• replacement of a front section of the car space (scaling to 3.15m) with turf cell;
• construction of a driveway between the street and the property boundary. At the property boundary, the driveway is 3.5m wide and located hard up to the south-eastern boundary. The driveway then narrows to width of 3m at the lip to Paine Street;
• removal of a brick pillar at the southern most comer of the site;
• replacement of certain existing pavers surrounding the car space with a garden bed; and

• relocation of a bus stop that is within the alignment of the proposed driveway to a point 2m to the north-west.

5 The following planning controls are relevant:

• Randwick LEP 1998; under which the site is within Zone No 2A (Residential A) and the driveway and parking space is ancillary to the dwelling and permissible with consent. The relevant zone objectives are:
  (a) to maintain the character of established residential areas, and
(b) to enable redevelopment for low density housing forms, including dwelling houses, dual occupancy, semi-detached housing, and the like, where such development does not compromise the amenity of surrounding residential areas and is compatible with the dominant character of existing development.

• Randwick LEP (Consolidation) – January 2010. The land remains in the 2A zone and the relevant objectives are:
  (b) to maintain the desirable attributes of established residential areas, and
(c) to protect the amenity of existing residents .
• Dwelling Houses and Attached Dual Occupancies DCP.
• Parking DCP.
• Australian Standard 2890.1:2004.

6 Detailed evidence was presented in the form of a joint expert report by:

• Mr P O-Sullivan; Development engineer at Randwick Council.
• Mr D Mooney; Senior urban planner at Randwick Council.
• Ms E Marshall-McClelland; Consulting architect/traffic planner for the applicant.

7 Insofar as the proposal is permissible, the detailed assessment controls are contained in the parking and dwelling DCPs, which have been tabulated as follows.

8 The relevant criteria in the dwelling houses DCP is:

DCP ref	Issue	Control	Numeric Performance
1.3(2)	Plan objectives	an urban design aim is to promote environmental design standards that respect and enhance the character of existing neighbourhoods
4.1	Landscaped area	40% (minimum)	37.6%
4.1	Landscaping & Open Space	(P1) The size and dimensions of landscaped areas suit the projected requirements of the dwelling occupants and accommodate outdoor recreation needs as well as providing space for service functions
4.7	Parking objectives	to ensure on-site car parking and driveways are not visually obtrusive and do not detract from the appearance of dwellings of the local streetscape
to provide convenient and safe car parking and access
4.7	Parking provision	1 space	1 space
4.7	Parking design	(P1) conveniently and safely serve users
(P1) enable the efficient use of car spaces and access ways, including adequate manoeuvrability for vehicles between the site and the street
(P2) not dominate or detract from the appearance of the development and the local streetscape
4.7	Parking dimensions	(S1) 5.5m x 2.5m	5.1m x 2.3m
4.7	Driveway width	(S1) 3m maximum at property boundary and 3m minimum elsewhere	3.5m at property boundary. Elsewhere 3.0m-3.5m
4.7	Driveway setback	(S1) 1m	0m
4.7	Car parking width	(S2) 35% (maximum) of the site width	95%

9 The relevant criteria in the parking DCP is:

DCP ref	Issue	Control	Numeric Performance
1.2	Plan objectives	To specify that parking facilities are designed to maintain the visual and environmental qualities of the local environment
2.3	Parking provision	1 space	1 space
3.1.3	Parking location	Spaces must be clear to all obstructions, including columns, ducts, pipes etc
3.1.3	Parking dimensions	5.5m x 2.5m	5.1m x 2.3m
3.1.3	Small space dispensation	Dimensions of 4.9m x 2.4m permitted in some circumstances. In residential strata developments, this will not be permitted for resident spaces but rather up to 10% of visitor spaces
3.1.3	Access	Enter in a single turning movement
Exit in no more than 2 turning movements

10 It is agreed by the experts that it is not possible to achieve the standard car parking space of 5.5m x 2.5m for the designated 85^th percentile (B85) vehicle. In these circumstances Ms Marshall-McClelland relies firstly on the provisions AS 2890.1 2004 Section 2.4.1(a)(iii), which allows for a “small car space” measuring 2.3m x 5m and secondly on the provisions of the car parking DCP, which allows ‘small spaces’ in some circumstances.

11 Accordingly, she produced plans (sheets 2 – 4) showing the proposed 30 parking arrangement. This facilitates the application of turning templates to assess the utility of the proposal, which she says is satisfactory.

12 However Mr O-Sullivan does not consider it appropriate to rely on the provisions of the AS because this section is prefaced on the basis that it “gives requirements and recommendations to be used in the design of parking modules and circulation roadways within off-street car parking facilities”. He considers the reference to parking modules and circulation roadways refers to multi parking facilities, in situations where there is residual space, which does not fully comply but which could be designated for smaller vehicles.

13 In light of these fundamental differences, it appears to me that Mr O -Sullivan’s interpretation of the AS provisions is the most appropriate because the standard is dealing with convenient entry and exit from designated parking spaces. This is based on the entry conditions to the parking space from a circulation area rather than a public road. However, it is apparent that the entry/exit movement is via the short side of the parking bay and not part way along the side boundary of the bay, as proposed in the subject case.

14 Reference to the other controls shows that cl 3.1.3 of the parking DCP controls allows for:

( ii) Small car space : in certain circumstances it may be appropriate to provide spaces smaller than specified above and which are designated as small car spaces. The minimum dimensions are 4.9m long and 204m wide. In residential developments where parking is strata titled, no small car spaces will be permitted for residents, however up to 10 percent of visitor spaces can be small spaces. These should be clearly identified and located in areas to avoid obstruction of traffic circulation.

15 Again, Mr O-Sullivan considers this section is not appropriate for residential lots as in the subject case, instead it mainly applies to a small percentage of visitor spaces in multi unit type developments. Other reference was made to the Mayoral Minute No 70/2007, which states:

(a) Councillors resolve not to use call up · powers for a development application on the sole basis of a residential Cal' parking space where the space does not comply with Australian Standard AS 2890.1 Parking Facilities or has a length of at least 5 metres, whichever is lesser; and


(b) Council not rely on the minimum dimension for open car spaces detailed in the Parking and Single Dwelling DCP and assess all the current and future Development Applications against the Australian Standard or a minimum length of 5 metres, whichever is the lesser.

16 From this I accept that there is some discretion that can be exercised in the size of ‘small parking spaces’. However such discretion should be within the scope of the overall parking objectives, which are to ensure parking facilities are efficient, adequate and safe. Also that there is acceptable public safety and convenience resulting from such spaces.

17 Consequently, I have carefully considered the merits of the applicant’s proposal, on the basis that AS 2890.1 includes reference to car parking on domestic properties. Also that there is a trend towards the use of smaller vehicles, which require less parking space. From reference to the proposed layout it is apparent that the designated 30 angled parking space is a very tight fit, necessitates manoeuvring over the side boundary.

18 Accordingly, I rely partly on the opinion of Mr O-Sullivan that the proposed parking is unacceptable because:

• The proposed parking space is considerably undersized relative to the designated 5.5m x 2.5m spaced specified in the DCPs. Whilst and undersized space may be suitable in some circumstances, I do not consider it appropriate where free access over the ends of the space is severely compromised.
• This 30 angled space imposes additional manoeuvring and sight difficulties over the footpath area when the vehicle is either reversed in or out, as shown by the reversing template.
• The sight distance is likely to be compromised by the parking of a vehicle in the setback area of the adjoining property, as seen at the view.
• The entry/exit arrangements from a vehicle will also be compromised due to limited space to open doors without using the proposed landscaped area.
• The proposed configuration does not provide a convenient arrangement to unload goods from the boot due to the proximity to the side boundary fences.
• There a real likelihood of convenience parking on the property, which results in part of the vehicle overhanging the footpath.
• I accept that it is impractical and uncharacteristic of this street to fix a sign to the front wall of the dwelling restricting parking to a small vehicle.
• The likely reversing movements into the space from Paine Street either across or adjacent to the centre-line near the bus stop would introduce a further negative traffic risk.

19 In addition to this, I consider the opportunity for parking on the site is compromised by location of the existing bus stop in front of the property. Whilst I understand that the bus sign can be shifted about 2 m, and apparently there are currently limited services at this bus stop nevertheless I do not consider it a desirable circumstances to allow the awkward movement to and from the site in this situation. Instead, I think a higher priority should be given to the pedestrian and on – road vehicle safety, which is likely to be compromised by the proposal.

20 The other substantive issue concerns the streetscape impact of the proposal. The experts agree that the proposal does not comply with section 4.7 of the DCP, which limits the width of parking spaces to a maximum of 35%. In this case, the angled width results in an effective width in the order of 95%, which is substantially non-compliant with the DCP control.

21 Consequently, the objectives in cl 4.7.1 requires that on-site parking and driveways are not visually obtrusive and do not detract from the appearance of dwellings and local streetscape. The applicant’s position is that the visual impact of vehicle parking can be mitigated by the proposed landscaping. However Mr Mooney says that:

“ The driveway, parking and turning area configuration has an unacceptable impact on the streetscape because of its width relative to site width, its dominance of the front yard at the expense of adequate landscaping, and its incompatibility with the architectural character of the building. The proposal is in conflict with the relevant DCP and LEP objectives.”

22 Notwithstanding this, the applicant has surveyed parking at other properties in Paine Street and these were inspected at the view. In this regard it is obvious that there are a number of non-complying parking arrangements but it was also apparent that the approval of most was uncertain. In these circumstances, I do not think it appropriate to set aside the current DCP controls on the basis of past actions that probably have not been approved.

23 Insofar as particular reference was made to No 109, which was recently approved by council, I note firstly the evidence that it was approved on the basis that the minimum length dimensions were between 4.8 and 5.2m. A crucial difference however is that this parking area is not angled and it incorporates side planting and footpath area, with the parking occupying about 50% of the frontage. Whilst this crossing is dimensionally marginal, I consider its 90 orientation to the street and associated landscaping give a more acceptable streetscape presentation than the proposal.

24 Importantly I note that the other preferred solutions for parking shown in Figure 4.6 of the DCP do not include angled parking within the front setback area. Where appropriate parking can be achieved, the DCP allows a maximum width of 3m at the property boundary and also requires a 1m set back from the side boundaries. The proposal does not comfortably satisfy these desired outcomes in my assessment.

Conclusions

25 Having carefully considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent. It is apparent to me that the relatively narrow 5.8m width of the lot and location of the existing dwelling on this 222 sq m lot severely constrains the opportunity to obtain a satisfactory parking area on-site.

26 These constraints prevent the approval of the designated parking area and only allow for the possibility of a smaller, 30 angled space. But in my assessment, the configuration does not allow convenient access over the end boundaries and requires awkward manoeuvres across the side boundaries. Accordingly, I consider that the public interest would not be well served by allowing significant variations to the DCP controls so as to allow this small parking area, which I do not consider represents a convenient or safe parking situation, particularly considering the associated parking movements across the footpath area in proximity to the existing bus stop.

27 Importantly, I consider that if a vehicle was parked in this front set back of this narrow width allotment, in the orientation proposed, it would then result in a negative streetscape impact, contrary to the DCP objectives. In this regard, I give diminished weight to the fact that there are other parking spaces in Paine Street, which appear to be of minimum dimensions. The legitimacy of these spaces was not established and instead I rely on the provisions of the DCPs to ascertain what the desired future outcome for this area is to be.

28 Whilst I acknowledge the applicant’s submissions that conditions of consent, including signage, could be imposed to require parking to be restricted to within the property to prevent overhanging onto the footpath and that an observation mirror could be installed in the front landscape area to assist with sight distances, it seems to me that the enforcement of these type of conditions is problematic considering the limited resources available to ensure compliance.

29 In this regard, the Court was referred to the findings of Watts C in the matter of Hamedami v Waverley Council [2004] NSWLEC 617 where he said:

41. There is like l ihood that once consent were granted , and given that the consent travels with the land , t hat ca r s with lengths of greater than 4.6m might be parked in the space and as a result would overhang the street alignment and partly encroach the footpath . This is to be avoided. The fact that the council approved a car . space at No 11 Fern St , Waverley , is but one factor to be taken into account , i n assessing the present application . However , i t is noted that the approved car space at No 11 Fern St was at 5 . 01 m , greater in length than that proposed. Tha t space also would at least comply with the length of a ' small car space ' under the

30 Consequently, I do not consider the imposition of the type of conditions suggested overcomes the fundamental constraints in this particular case. The relatively small lot size and width of approximately 5.8m, together with the existing building set back precludes in my assessment, the approval of a satisfactory parking space in the front of the dwellings, which reasonably satisfies the DCP objectives on streetscape and safe and convenient parking.

31 The Court orders that:

1 The appeal is dismissed.
2 Development consent for a small parking area within the front set back area at 132 Paine Street, Maroubra is refused.
3 The exhibits may be returned except 5, 7 and A.

R Hussey
Commissioner of the Court