Land and Environment Court of New South Wales CITATION : Comrex Pty Ltd v Waverley Council [2008] NSWLEC 1306 APPLICANT Comrex Pty Ltd PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 11137 of 2007 CORAM: Hoffman C KEY ISSUES: Development Consent :- s 96 application to delete conditions of consent, number of on-site carspaces, width of vehicle crossing and garage door Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Waverley Local Environmental Plan 1996 State Environmental Planning Policy 65 Jaguar Investments Pty Ltd v City of Sydney [2005] NSWLEC 3 CASES CITED: Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 DATES OF HEARING: 27/06/2008 DATE OF JUDGMENT: 28 July 2008 APPLICANT Ms H. Irish, barrister Instructed by Susan Hill & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr S. Patterson, solicitor of Wilshire Webb Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 28 July 2008 11137 of 2007 Comrex Pty Ltd v Waverley Council. JUDGMENT 1 Commissioner: This is a Class 1 Appeal no. 11137 of 2007 between Comrex Pty Ltd and Waverley council in regard to a deemed refusal of a s96 application to amend development consent DA385/05/B, given to allow demolition of an existing 2-storey block of flats, and erect a 3-storey block of flats with 2 basement levels at No.501 Bronte Road, Bronte. 2 The respondent was represented by : o Mr S Patterson solicitor, o Mr G McBarron traffic engineer, o Mr L Kosnetter senior town planner at council. 3 The applicant was represented by: o Ms H Irish barrister, o Mr A Morse traffic engineer, o Mr L Hunt town planner. 4 The site is on a curve of Bronte Road as it rises uphill to the south from the beachfront. The site is also on a corner with Pacific Street on the downhill side of the land. The site has only a corner-post frontage to Pacific St. On the curving Bronte Road frontage, there is a steep embankment up from the public footpath that runs beside the kerb & gutter. 5 Partway up the embankment is the brick front fence of the property, and then the bank continues up to a level yard in front of the existing flats. It has a commanding view northwards to the beach and along the coastline. 6 The s96 application is for the deletion of deferred commencement conditions 1(a) and (h) of the consent to permit the number of carpark spaces in the basement to be increased from 6 to 8, and to increase the entry door to the basement carpark from 4m wide to 5.5m wide. 7 The existing building was built circa 1930-40's, and contains 5 flats and has no off street parking, The approved new building has 4 units. 8 Due to the curve in the road, and traffic safety there is a "No Parking" restriction along the Bronte Rd frontage, and there is a bus stop adjacent its uphill boundary. The neighbouring building uphill on Bronte Rd is a 4-storey flat building. The neighbour to the west on Pacific St is a 5-storey block of flats. 9 The consent was granted under Existing Use Rights under the Environmental Planning & Assessment Act 1979, as the zoning is Residential 2(a) - Low Density under the Waverley Local Environmental Plan 1996, and apartments or residential flat buildings are prohibited. 10 The existing building is an "L" shape in plan and the new building is similar, so that the flat front yard overlooking the beach at the top of the embankment is repeated between the two arms of the "L". However, due to the two level basement, the new front yard will be on top of the basement roof. The upper level of the basement has store rooms for the units. The lower level is for the carpark, stairs, a lift, the garbage room, bicycle store and the drive entry onto Bronte Road. 11 The embankment that is largely on the public footpath reservation is removed by the proposal. The council consent approved the replacement of the embankment with landscape vegetation at the footpath level, and sandstone facing of the basement walls along the front boundary. The removal of the embankment has another benefit, in that it creates a driver safety sightline of the required distance to traffic coming downhill towards the drive entry of the development. The "NO PARKING" restriction on the same side of the road ensures that there will be no parked cars to obscure the sightline. 12 The council conditions are based on the DCP provisions that prescribe a MAXIMUM number of carspaces in any development, rather than the usual minimum number in other councils' DCP's. The objective of this is to encourage the use of public transport, and reduce car ownership and usage in line with "green house" emission reduction, increased sustainability. If car ownership is reduced it has another benefit because the on-street parking is in great demand especially in summer when beachgoers are added to local residents. 13 In regard to the garage entry door size, the council wishes to reduce the visual impact of the door within the landscaped footpath and sandstone wall in order to obtain a better streetscape outcome. The site is in a prominent position on the principal road to and from the beach. Also the smaller drive width creates a safer pedestrian route on the footpath as the pedestrian only has to beware of one car at a time. The council says the small number of cars in the basement make a smaller door practical since there will be very few occasions when a car going out would meet a car wanting to enter at the same time. 14 Mr McBarron was shown in cross-examination to have relied on a previous report from council in regard to the calculation of the maximum number of carspaces allowed on site rather than his own independent research. He had not considered the site had existing use rights, and that reduces the weight of any applicable DCP. In regard to DCP 2006 section D2 cl 1.1 it was shown the DCP does not name zone 2(a) as being included in the DCP calculations for the number of car spaces. Another reference he relied on was shown to apply the carspace calculation to existing flats in the 2(a) zone when this development is new. The respondent did not rely further on his evidence. 15 Mr Kosnetter said that even though the development was under existing use rights, SEPP 65 required proper consideration of the development and the objectives of the statutes and controls. The Waverley LEP cl 11(b) specifically sought to reduce travel by car. He did not think that the development being luxury units should justify 2 cars per unit, when other new developments would only be allowed 5 for the same size. He said allowing 6 cars was already a concession. 16 The applicant's evidence was that the 5.5m wide garage door sought is to allow 2 cars to pass on the footpath drive crossing with both off the road carriageway. It would facilitate manoeuvring given the driver sight distance of traffic coming downhill and the speed of that traffic. 17 In particular Mr Morse was concerned that a car coming downhill and wanting to turn into the subject driveway had to commence the turn from the centreline of the road. As a result if a car is exiting, the car coming downhill to enter would have to stop in the carriageway, blocking traffic behind it until the exiting car is clear. This causes an unnecessary potential hazard. 18 Likewise a car coming up from the beachfront and wanting to enter the site would have to stop in the carriageway and block up hill traffic if another car is exiting. 19 The 5.5m wide garage door combined with a 6m wide footpath crossing enables an entering car to get off the road and onto the drive without delay, and let an exiting car pass. The summer traffic is quite busy on Bronte Road so it would not be unusual for an exiting car to wait some time for a gap in the traffic. With the council's condition of consent this extends the time an entering car would block traffic to await the exiting car. 20 In regard to the 8 car spaces on site, Mr Morse and Mr Hunt favoured that due to the extensive demands for on-street parking even in winter. Any cars that could not be garaged on-site would end up adding to the on-street demand. They held the opinion that the approved units would attract owners/occupants with more than 1 car per unit. Housing 2 cars per unit on site reduces demand for on street parking. And, it improves the existing situation where the existing 5 flats have no on site carspaces and all must be on-street. 21 The public transport connections to Bondi Junction and the CBD from Bronte Beach would mean that daily commuter use of public transport is possible, and car use would likely be after working hours. 22 Mr Hunt noted evidence in another case supporting the opinion that it is not reduced parking at dwellings that reduces traffic peaks, it is reduced parking at major destinations such as the CBD, and efficient/fast/accessible public transport that reduces traffic peaks on the roads. In those conditions people choose to ride public transport. 23 It was put to Mr Hunt and Mr Morse that the other case established a principle that reduced on-site carparking does increase use of public transport. They both held the opinion that case, Jaguar Vs Sydney Tuor C, was in respect of localities with excellent public transport, and Bronte Beach has been identified in council's DCP section I-4 cl3.1 Fig 1 as being Zone B for access to public transport. Zone A is the locality with high public transport accessibility, Zone B is not. 24 Mr Hunt noted the council's latest survey of car ownership in Waverley showing that the cars per capita are increasing. 25 In regard to pedestrian safety, Mr Kosnetter agreed that the electric garage door going up and clear vision available would warn a pedestrian of any car using the garage. Also the double drive crossing would alert the possibility of 2 cars at the same time. 26 He maintained that reducing the car spaces on site could be a deterrent to increased car ownership, especially in luxury flats because occupants would not want to leave good cars on street, particularly next to the ocean and salt corrosion and having to park away from the site due to the "NO PARKING" restrictions adjoining the site and the high demand making a nearby carpark difficult to find. 27 Mr Kosnetter was taken to the council report on the proposal that assessed the two large units as 4-bed, and the only category for that size is houses where it requires 2 cars/dwelling parking. He had not realised that, as he had assessed the 2 large units as 3-bed plus study, as the DCP does not provide parking figures for units larger than 3-bed. 28 Also he agreed that cl 3.11(a) of the DCP allows waivure or variation of the parking requirements. Further that one could hold the opinion it is reasonable to reduce on-street parking demand, or not to increase it, by providing appropriate on-site parking. 29 Mr Morse said the council condition required the drive crossing to be only 4 m wide at the kerb and this is one of the reasons why a car wishing to enter the site would have to commence the turn from the centreline of the road, not adjacent the kerb. The drive crossing needed to be a 2-way crossing as well as the door. He agreed the garage door should be remote operated from cars to minimise the time a car would have to stop sitting across the footpath, but this is not a condition of consent. It should be. 30 He agreed that the likelihood of a car entering and a car leaving at the same time would be rare due to the small number of cars on-site, but it would occur he said. In that event his concern is the entering car from either direction has to halt in the roadway and block traffic until the exiting car can leave. The exiting car may have to wait some time for a gap in the traffic for the direction it wants to go. To him those traffic hazards had a simple solution by providing a driveway and a door 5.5m wide instead of 4m wide. 31 In coming to a conclusion on this appeal, I believe the answer on the driveway and garage door width is obvious. To make entry and exit safe and practical for Bronte Road traffic and users of the garage, a 5.5m wide driveway and garage door is justified. 32 In regard to the number of carspaces on site it seems to me there are a combination of considerations. One is that the two large units have large studies that could easily be used as bedrooms and one council report assessed them as bedrooms. The DCP has no classification for 4-bed units, so if one interprets a 4-bed unit as similar to a house, then 2 cars/unit are required. Another consideration is the application of Existing Use Rights to the original consent, reducing the weight of any applicable LEP or DCP.see Stromness Paine J. 33 In the other case mentioned by the parties Fodor Vs Hornsby it had additional issues of bulk and scale, and an existing building seeking change of use, and impacts on adjoining land, all of which do not apply here. The council approved the development as one of good design, and only wanted to reduce the number of carspaces and the size of the garage door and crossing. 34 If this site did not have the "NO PARKING" restriction and bus stop along its Bronte Road frontage, one might say there was room for any overflow parking on the street. However it does not have that benefit, and the evidence is the local streets are parked out, especially in summer. 35 By not providing adequate on-site parking, the overflow must go onto the congested streets. Compared to the existing flats with no carparking, the proposal must actually reduce on-street carparking demand by residents. By providing it there are no impacts of increased bulk and scale, the council agrees with the location of the carpark entry and its additional size will be inconsequential in visual impact compared to the size of the stone faced boundary wall and landscaping the council has approved. 36 No precent would be set given the particular circumstances of this case. 37 The Orders of the Court are: 1. The appeal is upheld. 2. Development consent 385/05/B issued by Waverley Council on 16 May 2007 for 3-storey apartment building containing 4 units at No. 501 Bronte Road, Bronte is amended by the deletion of Deferred Commencement Conditions 1(a) and 1(h) and the addition of 1(i) as in Annexure 'A' hereto. 3. The exhibits are returned to the parties except Exhibits A and 6. ___________________ K G Hoffman 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.