Land and Environment Court of New South Wales CITATION : Vogel v Waverley Council [2010] NSWLEC 1341 APPLICANT M. Vogel PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10756 of 2010 CORAM: Fakes C KEY ISSUES: DEVELOPMENT APPLICATION :- hardstand car space forward of building line; impact of driveway on street tree; LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 DATES OF HEARING: 3/12/2010 DATE OF JUDGMENT: 8 December 2010 APPLICANT Ms S Hill [solicitor] SOLICITORS Susan Hill & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr S Patterson [solicitor] SOLICITORS Wilshire Webb Staunton Beattie Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Fakes C 8 December 2010 10756 of 2010 Vogel v Waverley Council JUDGMENT 1 COMMISSIONER: This is an appeal pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the actual refusal by Waverley Council (the council) of DA87/2010. 2 This development application proposes the construction of a hardstand car space in the front yard of 43 Frederick Street North Bondi (the site). It requires the partial demolition of the masonry front fence and an extension and sharing of an existing crossover/driveway from the street. The extension of the crossover will encroach into the root system of a street tree. 3 The council's Development and Building Unit (DBU) considered the proposal and recommended approval subject to conditions however, the development application was ultimately refused by council's Development Control Committee on the basis that the development: + is contrary to the Waverley Development Control Plan (WDCP) with regard to parking; + results in the loss of a street tree; + results in the loss of one on-street parking space; and + is not in the public interest. The site and locality 4 The site is located on the western side of Frederick Street near the cul-de-sac head with O'Donnell Street. The site is relatively level and comprises a two-storey semi-detached dwelling. It is zoned 2(a) under Waverley Local Environmental Plan 1996 (WLEP). It is noted that the proposed works are permissible under the WLEP. 5 The site is adjoined to the north by the attached semi at no. 41. This dwelling has a driveway with vehicular access to a garage at the rear of that property. 6 To the south is an existing driveway leading to a single garage at the rear of 81 O'Donnell Street. It is this driveway/ crossover that is proposed for shared access to both the garage for 81 O'Donnell Street and the hardstand for 43 Frederick Street. 7 To the immediate north of this driveway is a no parking sign. Parking is prohibited at the southern cul-du-sac head of Frederick Street. 8 In front of nos 41 and 43 Frederick Street are 2 Melaleuca quinquenervia (Broad-leafed Paperbark) street trees growing in the grass verge. The verge is approximately 3.5m wide. It is the impact on the southernmost of these 2 trees that concerns council. 9 Between the no parking sign and the driveway for no. 41 there is on-street parking for two small vehicles or one larger vehicle. Technically, under AS2890.1 there is only one compliant car-parking space at the front of numbers 41 and 43. The issues and planning controls 10 The council's contentions identify 4 major issues. These are streetscape and loss of a street tree; loss of on-street parking; vehicular access to the site; and the public interest. 11 With respect to streetscape and the loss of a street tree council contends that the proposal is contrary to objective (a) cl 5.7 Part D1 of WDCP and cll 5.1 and 5.2 of Part I1 of WDCP. Specifically: + the hardstand is forward of the building line; + the proposed setback of 600mm from the tree will result in the loss of structural roots and 25% of feeder roots of the street tree and ultimately its loss. 12 Clause 5.7 Part D 1 of WDCP refers to vehicular access and parking. Objective (a) is to ensure that the design and size of off-street carparking facilities does not unreasonably detract from the appearance and quality of the dwelling-house or streetscape . Clauses 5.1 and 5.2 of Part I1 of WDCP go to design considerations that: + Maintain or improve pedestrian and cyclist amenity + Protect existing on-street parking supply by minimising additional vehicular kerb crossings + Maintain the continuity of streetscapes, streetscape elements and landscaping + All car accommodation be located behind the front building line (cl 5.2(a)). 13 Subsequent to the drafting of the Statement of Facts and Contentions, the issues relating to the non-compliance with the WDCP with respect to parking forward of the building line and the length of the car space, are no longer pressed by council. The DBU's 'Development Assessment Report' indicates that 83% of the dwellings in Frederick Street have a car space forward of the building line. This, they say, clearly indicates the predominant pattern of development on the western side of the street is semi-detached dwellings with parking in front and that this proposal is similar to that pattern. Similarly whilst the standard length of a car space is 5.5m, the proposed space of 5.4m is adequate to ensure manoeuvrability of vehicles entering and exiting the space. 14 Council contends that the loss of on-street parking is contrary to objective (c) of cl 5.7 of Part D1 of WDCP and cl 5.2 of Part I1 of WDCP. 15 The concerns about vehicular access are that the design of the driveway and front fence opening do not adequately cater for the swept wheel path of a B85 vehicle when entering and exiting the site. 16 No details were given regarding the public interest concerns so it is assumed that these refer to the issues listed above and the concerns of the objectors in this matter. 17 Mr Patterson for the council listed other relevant clauses from WDCP including cll 5.3(a) and (f) in Part I1: (a) Vehicular crossings for dwelling houses are to be of single vehicle width only. (f) Where possible, vehicular crossings should be shared with neighbouring properties. The hearing and the evidence Objector evidence 18 The hearing commenced with oral evidence from Mrs S Sheridan, one of the owners of 81 O'Donnell Street. Correspondence from Mrs Sheridan and her son is included in the council's bundle of documents. 19 Mrs Sheridan states that due to the location of her property on a cul-de-sac, unlike most other dwellings in the street, there is no on street parking outside her dwelling. As the family owns several vehicles they use the driveway outside their garage as a parking space. This, she says, is a common occurrence in the area. In correspondence to council Mrs Sheridan states that the council parking inspectors have developed a "policy " not to book residents who use their own driveways for additional parking. It is her concern that if the proposal is allowed, she and her family will lose a parking space near their home. Planning and arboricultural evidence 20 Expert planning evidence was provided by Mr L Fletcher for the applicant and Mr K Nash for council. Arboricultural evidence was given by Mr P Richards (consultant) for the applicant and Mr B Usher (council's Strategic Tree Planning Officer) for council. All experts prepared written statements and were present on site. This part of the judgment draws on both the oral and written evidence. 21 The site was inspected, as was a section of street to the north. The purpose of the street walk was to view recent examples of council and Court approved driveways/crossovers and their proximity to street trees. 22 In one instance it seems that a tree was removed and a replacement planted. Council considered this option to be unsuitable in the matter now before the Court. In another council approved example, roughly cut roots were pointed out. Mr Usher explained that he had not been consulted and that this was the situation council was trying to avoid. Ms Hill for the applicant pointed out root pruning along the footpath that had been carried out by council on the Melaleuca outside 41 Frederick Street. 23 The applicant's proposal is a 600mm setback from the southern side of the street tree outside no 43 (the tree) and an opening in the front fence of 2560mm. 24 Based on an internal referral to Mr Usher, the DBU report recommended a minimum set back of 1200mm from the base of the tree with no disturbance of soil or roots within 1400mm on its southern side. Council's Tree Operations Supervisor proposed other conditions regarding hand excavation and inspection. In Mr Usher's opinion, the tree is healthy and contributes to the amenity of the streetscape. 25 In response to these comments, Mr Fletcher, in his statement dated 29 November 2010 states that the applicant agrees with the DBU's recommendations. As a consequence of this he instructed consultant traffic engineers to prepare a swept path plan based on achieving the 1200mm setback from the tree. This was done and provided at the hearing. He notes in his statement that this necessitates minor adjustments to the opening of the front fence. 26 I note from Mr Richards' statement dated 29 November, the same date as the statement provided by Mr Fletcher, that Mr Richards considers the 600mm setback to be acceptable. He recommends the driveway be elevated on piers and states that if the new driveway is constructed at existing ground level the structural and feeding roots will be maintained. He considers the tree to be a hardy species and that sandy soil usually enables a deeper root system. 27 Notwithstanding Mr Usher's recommendations to the DBU, his position paper dated 1 December 2010 indicates he is still concerned with the potential long-term impacts on the health of the tree. This is based on the likelihood of there being major woody roots in the area proposed for the extension of the crossover. The absence of root mapping makes the actual impact impossible to determine. In response to the suggestion of pier and beam footings, he considers it may minimise disturbance to the tree's root system but would need a minimum clearance of 100mm to allow for future root growth. 28 Mr Nash met with Mr Usher prior to preparing his position paper dated 26 November 2010. He agrees that the loss of roots from the proposed 600mm setback is unacceptable. He considers that the appropriate measures to be taken to achieve a reasonable planning outcome for the site and streetscape are to:- increase the opening in the fence to 3560mm to improve manoeuvrability; to realign the northern edge of the driveway to be a minimum of 1800-2000mm from the tree; and to borrow from the existing driveway for 81 O'Donnell Street. This he says will reduce the impact to the tree and retain the on street parking in front of no 43. 29 Based on Mr Nash's recommendations, council prepared a swept path analysis based on a 1800mm setback from the tree. 30 At the hearing, the on-site discussions between the experts revolved around the practicalities of a suspended slab driveway and potential impacts on the tree of a 1200mm setback v an 1800mm setback. 31 As no root mapping had been undertaken, Mr Richards was instructed to hand excavate a trench at 1200mm from the tree to at least a depth of 200mm. This trenching identified a number of woody roots in excess of 50mm in diameter including one visible surface root and another large root close to the concrete path on the south-western side of the tree. This exercise also demonstrated that, contrary to Mr Richards' position outlined in para 26, a driveway cannot be constructed at existing ground level without damaging roots as excavation is required for the depth of the slab. 32 The practicality of constructing a suspended slab on piers was discussed in terms of meeting the finished levels of the concrete pedestrian path and the northern edge of the existing driveway. Mr Usher reluctantly agreed that a 50mm clearance from roots would be acceptable but he did agree that Melaleuca quinquenervia is a species that generally tolerates root loss. Mr Nash and Mr Fletcher considered that the levels could successfully be engineered. Mr Richards could not recommend particular locations for piers but it was agreed by the parties that more extensive root mapping would be required. 33 It was also agreed, again reluctantly by Mr Usher, that the large root near the pathway on the south-western side of the tree could be cut. Mr Richards stated that that root appeared to have been cut at some stage. 34 The parties agreed that conditions of consent could be refined to provide an outcome that meets the needs of the applicant yet minimises the impact on the tree and the streetscape. Findings 35 Section 79C of the Act requires consideration of a number of matters including the public interest. 36 I am satisfied that the proposal is permissible under the WLEP. I agree with council's DBU that whilst the development does not comply with cl 5.2(a) Part I1 of WDCP in that the car space is forward of the building line, it is not inconsistent with the pre-dominant pattern of development on the western side of Frederick Street. I also agree that a shortfall of 100mm in the required length of the hardstand area should not be fatal to the appeal. 37 I accept Mr Nash's opinion in that sharing the crossover that services 81 O'Donnell Street, the on street parking outside nos 43 and 41 Frederick Street can be maintained. This satisfies cll 5.1and 5.3(f) Part I1 of WDCP. However, in order to minimise the impact on the street tree, cl 5.3(a) Part I1 will not be entirely satisfied in that the western end of the driveway will need to be widened to enable access into the applicant's property. The access from the street will remain at a single width. 38 With respect to the potential impacts on the street tree and therefore on the streetscape, the excavation at 1200mm revealed a number of woody roots. The removal of any roots could have an impact on tree health however, in the expertise I bring to the Court, I agree with the arborists that Melaleuca quinquenervia is a species that tolerates a degree of root loss. I agree with Mr Richards that there are likely to be some deeper roots due to the sandy nature of the soil however I also agree with Mr Usher in that root loss must be minimised. 39 I agree that the best way to minimise the impact on the tree is to set the driveway back as far as possible and to suspend a portion of the slab on piers. The council's setback of 1800mm is preferred and while this will necessitate a wider opening in the front fence I consider that this will not offend objective (a) cl 5.7 Part D1 of the WDCP. The location of the piers and the final design will require more extensive root mapping to be undertaken. 40 With respect to the public interest, while I appreciate that the Sheridan family find it convenient to park in the driveway to their garage and that this is informally sanctioned by council parking officers, it is not something the Court can give weight to as it is a designated no parking zone. Similarly, the driveway is on council land and is not owned by the residents. If anything, I consider sharing the driveway to be in the public interest in that it avoids the loss of on-street parking and minimises the impact on the street tree. 41 On balance I am satisfied that the development should be allowed subject to conditions of consent. Therefore the Orders of the Court are: 1. Leave is given to rely on amended plans. 2. Pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 the applicant is to pay the respondent the agreed sum of $1 within 28 days 3. The appeal is upheld. 4. Development Application DA87/2010 for a hardstand parking area in the front setback of 43 Frederick Street North Bondi with associated alterations to the front fence and the extension of an existing crossover is determined by the granting of consent subject to the amended plan shown as Annexure A and the conditions shown as Annexure B. 5. Exhibit 1 is returned, all other exhibits are retained. _____________________________ J Fakes Commissioner of the Court Annexure "B" CONDITIONS OF CONSENT Property know as 43 FREDERICK STREET, NORTH BONDI A. Approved Development 1. Approved Development The development must be in accordance with: Architectural Plan, Drawing No.(job no.0324) DA-01, tables and documentation prepared by DRE Design and Planning Ingenuity Pty Ltd, dated 15 January 2010, and received by Council on 5 March 2010, except where amended by the following conditions of consent. 2. general modifications The proposal shall be amended as follows: (a) The driveway shall be relocated to the south in order to provide for a clearance of a minimum 1800mm from the southern face of the existing street tree at the front of the property generally in accordance with the Swept Path Analysis prepared by Waverley Council dated 1 December 2010 being Drawing No. 1 Issue A as amended which is attached as Annexure A ; (b) That part of the driveway that requires excavation will be subject to root mapping to a minimum depth of 300mm by way of air knife or water blasting in order to identify the location of any structural or woody roots with a diameter greater than 50mm. (c) The root mapping must be supervised by an arborist with a minimum qualification of AQF 5. (d) Council's Strategic Tree Planning Officer is to be provided with a minimum of 48 hours notice of time and date the root mapping will take place; (e) The piers and the underside of the driveway are to be located so as to provide a minimum clearance of 50mm from any structural or woody root with a diameter greater than 50mm; (f) Any roots that are in the location of the driveway with a diameter of 50mm or less shall be clean cut with final cuts to undamaged woody tissue; (g) The larger structural root immediately adjacent to the footpath is to be clean cut with final cuts to undamaged woody tissue to provide 50mm clearance to the edges of the footpath and the driveway; (h) Engineering drawings shall be prepared for approval by Council's development engineer and Strategic Tree Planning Officer in accordance with the approved conditions; (i) Details shall be submitted of the proposed method of containing the pebble surface of the hard stand parking area within the property boundary (ie. Measures to prevent transfer to Council's footpath area); and (j) Any provision of pedestrian and/or vehicular access gates to the front boundary of the property shall be consistent with the height of the existing front fence, comprise an "open" design and not open out onto council land, outside the property boundary. The amendments shall be submitted for the approval of Council prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979. 3. STREET TREE PROTECTION The following must be adhered to during the construction works on site in order to provide protection to the existing Paperbark tree(s) on the Council verge at the front of the site: 1. There must be no disturbance of soil or roots within 1800mm of the Paperbark tree on its southern side. This distance is to be measured from the outer trunk surface of the tree. 2. A tree protection plan prepared by an arborist with a minimum qualification of AQF 5 and approved by Council's Strategic Tree Planning Officer shall be maintained for the duration of all driveway construction works. 3. Any exposed roots must be kept continually moist by securely covering with damp hessian matting until the driveway construction is completed and any soil removed from around woody roots is to be replaced within 48 hours. 4. A bond of $5000 is to be lodged for the protection of the tree and its roots. The bond will be refundable depending on a satisfactory assessment by Council's Tree Operations Supervisor. 5. If tree roots are required to be removed for the purposes of constructing the approved works they shall be cut cleanly by hand, by an experienced Arborist/Horticulturist (with a minimum of the Horticulture Certificate or Tree Surgery Certificate). 6. Subject to the previous conditions precautions shall be taken when working near trees, shrubs or vegetation on the subject or neighbouring properties to ensure their retention, including the following: (a) Do not store harmful or bulk materials or spoil under or near trees; (b) Prevent damage to bark and root system; (c) Do not use mechanical methods to excavate within root zones; (d) Do not add or remove topsoil from under the drip line; (e) Do not compact ground under the drip line; (f) Do not mix or dispose of liquids within the drip line of the tree; and (g) All trees marked for retention must have a protective fence/guard placed around a nominated perimeter. 7. Consent is granted for the removal of the frangipani located on the southern side of the front yard of the premises at the election of the Applicant. B. Compliance Prior to Issue of Construction Certificate 4. SECTION 94A CONTRIBUTION A cash contribution is payable to Waverley Council pursuant to section 94A of the Environmental Planning and Assessment Act 1979 and the "Waverley Council Development Contributions Plan 2006" in accordance with the following: (a) A cost report indicating the itemised cost of the development shall be completed and submitted to Council: 1. Where the total development cost is less than $500,000: "Waverley Council Cost Summary Report"; or, 2. Where the total development cost is $500,000 or more: "Waverley Council Registered Quantity Surveyor's Detailed Cost Report". A copy of the required format for the cost reports may be obtained from Waverley Council Chambers (First Floor) or downloaded from: www.waverley.nsw.gov.au/publications/ (b) Prior to the issue of the Construction Certificate, evidence must be provided that the levy has been paid to Council in accordance with this condition or that the cost of works is less than $100,000. Waverley Council Development Contributions Plan 2006 may be inspected at Waverley Council Chambers, First Floor, Cnr Paul Street and Bondi Road, Bondi Junction. Advisory Note * A development valued at $100,000 or less will be exempt from the levy. * A development valued at $100,001 - $200,000 will attract a levy of 0.5%. * A development valued at $200,001 or more will attract a levy of 1% based on the full cost of the development. 5. security deposit A deposit or guarantee satisfactory to Council for the amount of $500 must be provided as security for the payment of the cost of making good any damage that may be caused to any Council property as a consequence of this building work. This deposit or guarantee must be established prior to the issue of the Construction Certificate. The full amount of the difference after recovery of Council's cost for any repair of damage to Council property will be refunded after satisfactory completion of the building work. 6. no building works prior to release of construction certificate The building work, including demolition, must not be commenced until: (a) a Construction Certificate has been obtained from Council or an Accredited Certifier in accordance with Section 81A(2) of the Environmental Planning & Assessment Act, 1979; (b) a Principal Certifying Authority has been appointed and Council has been notified of the appointment in accordance with Section 81A(2)(b) of the Environmental Planning & Assessment Act, 1979 and Form 7 of Schedule 1 of the Regulations; and (c) Council is given at least two days Notice in writing of the intention to commence the building works. The owner/applicant may make application to Council or an Accredited Certifier for the issue of a Construction Certificate and to be the Principle Certifying Authority. C. Compliance Prior to and During Construction 7. PRIOR TO SITE WORKS The Principal Certifying Authority must be informed in writing before any site works, building or demolition commences of: (a) the name and contractor licence number of the licensee who has contracted to do, or intends to do, work ; or (b) the name and permit number of the owner/builder who intends to do the work; and (c) any change to these arrangements for doing of the work. 8. CONSTRUCTION SIGNS Prior to commencement of any works on the site and during construction a sign shall be erected on the main frontage of the site detailing the name, address and contact details (including a telephone number) of the Principal Certifying Authority and principal contractor (the coordinator of the building works). The sign shall be clearly legible from the adjoining street/public areas and maintained throughout the building works. 9. COMPLIANCE WITH WORKCOVER NSW REQUIREMENTS All site works complying with the occupational health and safety requirements of WorkCover NSW. 10. BUILDING CODE OF AUSTRALIA All building work must be carried out in accordance with the requirements of the Building Code of Australia. 11. CONSTRUCTION HOURS Demolition and building work must only be undertaken between the hours of 7am and 5pm on Mondays to Fridays and 8am to 3pm on Saturdays with no work to be carried out on: (a) The Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which form part of public holiday weekends; (b) Sundays and public holidays; and (c) On the Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which immediately precede or follow industry Rostered Days Off, as agreed by the CFMEU and the Master Builders Association of NSW. Noise from construction activities shall comply with the Protection of the Environment Operations (Noise Control) Regulation 2000. 12. CONSTRUCTION NOISE - PERIODS OF 4 WEEKS OR UNDER The LA10 level measured over a period of not less than 15 minutes when the construction site is in operation must not exceed the background (LA90) noise level by more than 20dB(A) when assessed at any sensitive noise receiver. 13. ALL BUILDING MATERIALS STORED ON SITE All building materials and any other items associated with the development are to be stored within the confines of the property. No materials are to be stored on Council's footpath, nature strip, or road reserve without prior Council approval. 14. STREET TREES No existing street trees shall be removed without Council approval. Where approval is granted for the removal of a street tree the applicant is to pay for its replacement with a super advanced tree of a species nominated by Council. 15. NEW VEHICLE CROSSING Deleted 16. STORMWATER MANAGEMENT Deleted . 17. VEHICULAR ACCESS Vehicular access and gradients of vehicle access driveway(s) within the site are to be in accordance with Australian Standard 2890.1 Parking Facilities - Off Street Car Parking with details provided on the plans prior to the issue of the Construction Certificate. 18. VEHICULAR ACCESS - FINISHED LEVEL The finished level at the property boundary on both sides of the vehicle crossing is to match be 50mm above the existing concrete footpath level of the existing concrete footpath. 19. work outside property boundary All work outside the property boundary is to be carried out with the approval of, and in accordance with, the requirements of Council at the applicant's expense. 20. SERVICE AUTHORITIES Deleted D. Compliance Prior to Occupation or During Occupation 21. FINAL OCCUPATION CERTIFICATE Deleted ______________________ J Fakes Commissioner of the Court 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.