Land and Environment Court of New South Wales CITATION : McArthur v Waverley Council [2009] NSWLEC 1296 APPLICANT Christopher McArthur PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10438 of 2009 CORAM: Dixon C KEY ISSUES: DEVELOPMENT APPLICATION :- Hard stand carspace Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006 CASES CITED: Zhang v Canterbury City Council (2001) 115 LGRA 373 DATES OF HEARING: 1 September 2009 DATE OF JUDGMENT: 16 September 2009 APPLICANT Mr McMahon (solicitor) SOLICITOR M E McMahon & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr Patterson (solicitor) SOLICITOR Wilshire Webb Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Dixon C 16 September 2009 10438 of 2009 Christopher McArthur v Waverley Council JUDGMENT Introduction 1 Waverley council has approved alterations and additions to a family home at 7 Cross Street, Bronte. The approved works, when completed, will transform the existing dwelling into a substantial four-bedroom home. 2 However, the approval specifically deleted a hardstand car space and associated works from the approved works. 3 Left without off street parking, the owners lodged a second application for a hardstand car space this time with a gate proposed at the entry to the car space. The second application was also refused. The owners now appeal the refusal of that second application. 4 Generally the issues raised by council include; the length of hard stand car space, it location forward of the front building line and the development's impact on the streetscape. 5 After a view of the site and a consideration of the evidence, submissions and the relevant matters in section 79C of the Environmental Planning and Assessment Act 1979 I am of the opinion that the application should be refused. The reasons for my decision are set out below. Background 6 This matter commenced onsite as a section 34 conciliation conference on 1 September 2009. Following the termination of the conference, at the request of the parties, I proceeded to hear and finally dispose of the matter. 7 The following planning instruments control the site: Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006 specifically; -Part D1- Dwelling House and Dual Occupancy Development; and -Part I2 – Land Use and transport 8 Council raises a number of objections to the development because of its non-compliance with certain objectives and provisions of the WLEP and WDCP. Details of the non-compliances are outlined in the agreed statement of facts and contentions filed on 24 July 2009. 9 The site is zoned Residential 2(a) under the WLEP and the proposed development is permissible with consent. The site is not within a heritage or a conservation zone. 10 The development was advertised in accordance with council's policy and council did not receive a submission. Council determined the application and issued a refusal on 24 March 2009. The development proposal 11 The development requires removal of part of the front fence and shrubs of the site to allow a 3 m wide opening for a hardstand car space at the front of the dwelling. A retaining wall to the north, adjacent to the parking space with a sliding gate, is also proposed. The hardstand car space will measure about 5.0m x 3.5m without a gate and somewhere between 4.5m and 4.95m with a gate (depending on the design). A new kerb crossing is required to access the parking space. What is the relevant streetscape? 12 The site is located on the western side of Cross Street between Birrell and Darling Streets at Bronte .It is a rectangular shape with a frontage of 10.975m and a depth of 40.235m and a total area of 441.5m2. At the northern end of the street is a council reserve with access to Tamarama Beach. 13 The neighbouring sites contain one and two storey dwellings of a similar scale to the subject site. To the north, adjacent to the site, is a pair of single storey dwellings with single garages within the front setback, along the front boundary. 14 To the south of the site is a single storey dwelling with a drive way along the northern boundary to a garage at the rear of the site and a covered carport at the front of the site. 15 On the view I observed a number of semi detached and free-standing dwellings with garages, carports or hard stand car spaces built forward of the front building line. Many of these garages and car spaces appear to have been built some time ago. I accept the applicant's submission that off street parking forward of the building line is a common feature of the existing streetscape in the locality of the site. What is the impact of the car space on the streetscape? 16 The applicant submits the proposed car space is visually appropriate and consistent with the existing development in the locality. The statement of environmental effects prepared by Mr Betros in support of the application describes the development as consistent with the objectives and controls of council. He asserts that the development improves the amenity of the existing dwelling by providing a convenient and unobtrusive on site car space. He says the replacement of part of the existing fence with a new timber picket fence is in keeping with the established street character. It is submitted that the gate will ensure that any vehicle parked in the space does not overhang onto the footpath. When the gate is closed it is intended to present as a continuous front fence. 17 With respect to the location of the car space the applicant asserts that it is unreasonable and unnecessary to require compliance with the controls in WDCP which preclude development forward of the front building line because of the constraints of the site. 18 I accept the subject site is constrained by its front facade and the veranda of the existing dwelling. In fact the court and the parties' representatives spent some time during the hearing trying to redesign the car space to achieve a longer car space inside the gate but were without luck. On the day the experts agreed that the proposed design configuration is the best that can be achieved on that part of the site short of removing the front of the dwelling. 19 The council argues that the existing car spaces and garages within the street were approved under different planning controls and that this application should not be approved simply because others in the street have off street parking. The controls, council submits in WDCP apply to this site in its existing street context. Council's position is that many of the existing car spaces and garages within the front yards of the street have a detrimental impact on the street. For the same reasons Council refused this application it says they interfere with the visual relationship between the front garden and the street, they reduce pedestrian safety, and reduce on street parking and landscape open space. 20 The council submits that repeating bad development because it exists cannot be good planning. 21 The council says that approval of this development adversely impacts on the streetscape and is contrary to clauses 5.4-Streetscape and Visual impact and 5.7 –Vehicular Access and Parking of D1 and clause 5.2-Design of Parking and Access of Part l1of WDP 2006. What is unacceptable about the dimensions and location of the proposed car space? 22 The applicant concedes that the proposed car space is short in length (less than 5m in length) and does not comply with the controls in Council's WDCP which require a length of 5.5m. Nonetheless, the applicant says the space is long enough to accommodate a midsized family car such as a Subaru forester that has a length of 4.56m. Accepting the space falls short of the WDCP control (and the B85 standard vehicle or 85th percentile vehicle as outlined in Australian Standard AS/NZS2890.1.2004) it says there are many existing car spaces of similar size in the street forward of the front building line. Again the applicant submits that this is a constrained site and it is reasonable and necessary in the circumstances of this case to relax compliance with the minimum dimensions in the council's controls. 23 It is clear from the words in D1 clause 1.4 in the WDCP that the application of the controls is flexible (D1 clause 1.4). While the development controls are not normally varied, if an applicant is able to clearly demonstrate that a particular control is unreasonable or unnecessary in the circumstances of the case, council may consider relaxing the control. However, this flexible application of the controls in the WDCP works both ways and having a regard to the physical characteristics of the site and the nature and proximity of adjoining and nearby development, council may require a more restrictive control so as to minimise or eliminate any likely negative impacts. 24 The applicant invites me to accept its submission that it is reasonable and appropriate to approve this car space because it will improve the amenity of the residents of this 4 bedroom home. This submission must however, be balanced against the underlying objective of maintaining and improving the amenity and existing characteristics of the locality which is objective (b) of the Residential 2(a) zone under the WLEP1996. 25 Council argues that the proposed car space is just too short in length and therefore unacceptable for safety and aesthetic reasons. It measures 5m x 3.5m without a gate and less than 5m in length with a gate. Either way the proposed space does not comply with the control in clause 5.7.4 of D1 of the WDCP 2006, which requires minimum internal dimensions of 5.5m X 2.5m per vehicle to accommodate a standard vehicle to park within the property without overhanging onto council's footpath. Council is committed to enforcing its WDCP controls to avoid the proliferation of non complying spaces in the area, which it submits, compromises pedestrian and vehicle safety and results in a visual intrusion and unsympathetic addition (a vehicle parked in the front garden) to the front of the existing dwelling. 26 Coupled with the non-complying length is the non-complying location of the car space forward of the front building line. WDCP 2006 requires in Land Use and Transport I clause 5.2 (a) that all car accommodation is to be located behind the front building line. The proposal is not only reported as "well undersize" in council's assessment but also does not comply with the control which precludes the location of car spaces forward of the front building line. Council's assessment report concludes that the proposed hardstand car space in the front setback of the site will result in an unacceptable impact upon the landscape component of the streetscape. 27 Also of concern to council is the fact that there will be a loss of one public car space on the street and the need to construct another vehicular crossing, which is contrary to the WDCP 2006 Dl &I, clause 5.1. The council's submits its control is aimed at trying to minimise mass concreting on council land and promote greenery on council's nature strip. The proposed crossing means further mass concreting on the nature strip which council says is contrary to the underlying objectives of its controls. 28 The council says it is concerned to maintain where possible the remaining federation character of the streetscape, particularly, elements such as the masonry front fence with a hedge which did exist on this site. Council emphasises that their car parking policy is a restrictive policy and it is acceptable to have a zero parking control for this site despite being a renovated 4-bedroom home. This is not a new dwelling, which may have different controls for parking. 29 The council argues that the loss of the shrubs/hedge and the concrete crossing at the footpath have an adverse impact on the amenity and the environmental quality of the built and natural environment and therefore the proposal does not satisfy clause 2(c) –general aims of the LEP. 30 At the hearing the council agreed with the applicant's landscape calculations. However, this did not overcome council's objection to the loss of part of the existing hedge and soft landscaping. Council pressed the submission that the proposal did not achieve the underlying strategy and consequently the objectives of Part D1 of WDCP2006. The proposed landscaping in council's view does not adequately contribute to streetscape character because insufficient vegetation is retained (clause 5.8.2), nor does the proposal provide sufficient useable open space (clause 5.8.1). Therefore council argues it is contrary to the objectives of the WDCP 5.8(a) as it does not enhance the amenity of the site, streetscape, and surrounding neighbourhood. The existing vegetation is required to be maintained under the controls in 5.8.2 of the WDCP unless this is unfeasible. The only reason the existing vegetation is being removed is to accommodate the non-complying car space. Reasons 31 The WDCP is the focal point of my assessment of this application: Zhang v Canterbury City Council (2001) 115 LGRA 373. While the provisions are not mandatory they cannot be displaced without justification. Council asserts that I am being asked to approve an under sized hardstand car space, in the wrong location, which falls short on landscaping and will unreasonably detract from the appearance and quality of the existing dwelling and other dwellings in the vicinity and streetscape. In essence it is contrary to objective (b) of the LEP and various objectives and clauses of WDCP. 32 Balanced against that view, the applicant asks me to approve the development because Council has approved a substantial four bedroom home on the site and "the proposal will improve the overall amenity of the subject dwelling, allowing greater convenience to the occupants." and that it is reasonable to provide off street parking for those residents. The applicant also argues the proposal is sympathetic and characteristic of the existing development in the locality. Not only will it enhance the amenity of the family residing in this dwelling the applicant submits that it will have no adverse impact on the locality. Furthermore, it is advanced that because the site is book ended by garages and carports it is not unreasonable and in fact appropriate to relax the planning controls in the WDCP to allow this site off street parking. 33 I accept that the space is too short and nothing can be done on this site to provide a hardstand car space that does comply with council's WDCP. Unfortunately, for the applicant there is no rear access to this site and the WDCP is a restrictive car parking policy, which would tolerate a zero onsite-parking outcome for this site. I do not accept that the needs of the residents of this dwelling should compromise the needs of the amenity of the neighbourhood. The owners of this site have never had off street parking. They have elected to redevelop their site to achieve a 4-bedroom home. The council in allowing that development of the dwelling has purposefully denied the residents of this site opportunity for off street parking. 34 The applicant's submission is attractive, as it cannot be disputed that off street parking is valuable and convenient. However, unfortunately for the residents of this site, the relevant planning controls do not support the proposition that a renovated four-bedroom home needs to have any off street parking. I accept that council's controls for parking are restrictive and a zero parking outcome for this site is acceptable under the current planning regime. The applicant has not provided sufficient justification to me to warrant relaxation of the WDCP controls to allow this non-complying car space forward of the front building line. 35 In respect of the gate the applicant says its inclusion together with the complying landscape overcomes any objection to the visual interrelationship between the car space and the street and satisfies the objectives of Part 5.4 –Streetscape and Visual Impact. The applicant submits the design of the hardstand car space is both appropriate and sympathetic to the adjoining and other dwellings in the vicinity. 36 Council however, does not accept that the sliding gate will solve the adverse impact of this development. The evidence in my view supports council's assessment that a gate will do little to address the unsympathetic visual impact of the hardstand car space squashed into the front of the site with a mass of concrete on council's nature strip accessing the space. 37 Apart from its adverse impact on the streetscape, the council submits the inclusion of a gate will further compromise the length of the space and increase the non-compliance with council's WDCP. The design of the gate was discussed at length during the hearing because no specific design was available. Various design options for the car space were also canvanased including sitting the nose of the vehicle under the front veranda but these options were not viable. No amendment was proposed which could result in a complying car space with gate. 38 I accept that approval of an undersized hardstand car space on this site is inappropriate but I cannot accept that approval would encourage a proliferation of non-complying car spaces within the locality. Each appeal is to be considered on its own merits based on the particular circumstances of the case. 39 I accept council's submission that the loss of one public car space on the street is contrary to WDCP –D1 and I (clause 5) and can not be justified on the basis of this application. Furthermore, such an outcome is at odds with objective (b) of the LEP, which seeks to approve development, which will maintain or improve the amenity and existing characteristics of the locality. 40 The evidence is that if the development were approved it would be necessary to construct a crossing on the footpath to allow vehicle access and the result is mass concreting of council's nature strip. This outcome is also contrary to maintaining or improving the amenity and existing characteristics of the locality (objective (b) of the LEP). The crossing will not only detract from the appearance and quality of the existing dwelling but also inevitably reduce pedestrian safety and thereby result in non-compliance with Part 5.7-Vehicluar Access and Parking of WDCP. I agree with council that the crossing is not justified for this application. 41 Objective 1(b) in the residential 2(a) zone of the WLEP provides that development should maintain and improve the amenity and existing character of the locality. Read with the WDCP this precludes development forward of the front building line unless the physical characteristics of the site and the nature and proximity of adjoining and nearby development require a relaxation of the control. The applicant must demonstrate that a variation of the controls of the WDCP is reasonable and necessary. 42 The applicant has not demonstrated that a variation of the controls of the WDCP is reasonable and necessary in this case. There is little opportunity to redesign this car space to provide an acceptable development because the owners have already maximised the development potential of the site to provide for a 4-bedroom home. 43 In all the circumstances having regard to the evidence, submissions and the relevant matters in section 79C of the Environmental Planning Act 1979 there is no opportunity to approve this application in its current form. I accept the evidence of the council that approval of this application would be unreasonable and result in an adverse impact on the streetscape and compromise the objectives of the WDCP, which I accept is considered by council to be the current and appropriate planning policy for this site. 44 This car space was originally proposed as part of the renovation of the main house (DA 642/2007) and deleted from that application by a condition of consent. While each application must be dealt with on its merits the inclusion of a sliding gate does little to commend this application for approval and therefore the application is refused. I make the following orders: 1. The appeal 10438 of 2009 is dismissed. 2. Development application 738/2008 is determined by refusal of development consent; and 3. The exhibits are returned. ___________________ Susan Dixon Commissioner of the Court ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.