Land and Environment Court New South Wales Medium Neutral Citation: Savage v Council of the City of Sydney [2011] NSWLEC 1291 Hearing dates: 23 & 24 June 2011 Decision date: 24 June 2011 Jurisdiction: Class 1 Before: Murrell C Decision: Appeal dismissed Catchwords: APPEAL - Section 34AA Application to modify consent to provide basement parking; impact on streetscape; heritage conservation area; street tree; garden bed; pedestrian crossing Legislation Cited: Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2000 Cases Cited: Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226 Goldberg v Waverley [2007] NSWLEC 259 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Zhang v Canterbury City Council [2001] NSWCA167 Category: Principal judgment Parties: Luke Savage (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel Mr S Chapple - Barrister (Applicant) Mr A Hawkes - Solicitor (Respondent) Solicitors Yardy Legal (Applicant) Council of the City of Sydney (Respondent) File Number(s): 10288 of 2011 EXTEMPORE Judgment 1This is an ex tempore judgment for an appeal to council's refusal of a s 96 modification application. 9. The conciliation phase of the appeal under 34AA of the Land and Environment Court Act 197 failed to reach any agreement and the parties consented to the Court determining the matter by way of adjudication. 2The Court has the benefit of a site inspection, and the parties agreed at the beginning of the hearing in Court, that what was seen and heard on the site inspection could be taken into consideration in the assessment of the development application. 3The Court also has the benefit of expert evidence from council officers, Ms Tracey Funnell, who is an arborist, and Mr Rod King, a traffic engineer, and Ms Jessica Simmons, a town planner. The applicant did not file expert evidence as such, although I note that there is, in the council's bundle, a report from Mr Lyle Marshall, on traffic matters, and a report from an applicant's arborist. 4The background to this matter is that the council approved two terrace dwellings to be erected on the site known as 103 Arundel Street, Forest Lodge. At that time the development application was for the demolition of the existing building and the construction of two new terrace houses on a site that is approximately nine metres wide and some 335 sq m. The approval by the council was in respect of amended plans. The original application submitted to the council was to allow for a driveway and basement parking. Before determining the matter the council advised that the basement parking was not favoured and the applicant submitted to amended plans to delete the basement parking. 5Following the council's approval the applicant then submitted a modification application, which included amongst other things, a driveway crossover and basement parking for three vehicles. The council approved the other minor modifications and the appeal has a narrow focus of the driveway and basement parking for three vehicles. 6While not contested by the council nonetheless in terms of s 96(2) I must be satisfied that "development for which the consent as modified relates to is substantially the same development as the development for which consent was originally granted". In my opinion I am satisfied the modification application is substantially the same as that approved by the council. 7The Court also heard evidence regarding the Roads Act and the need for the removal of certain parts of the kerb and landscaping on the road, the extend depending upon the configuration of driveway in front of the subject property constructed in the roadway, a garden bed, and also the pedestrian crossing. It was submitted on behalf of the applicant, and the council does not cavil with this, that the Court does have the power under s 39(2) of the Land and Environment Court Act 1979 to approve the development having regard to the fact that there is a clear nexus between the development and the need for removal of the pedestrian crossing if the modification is approved. 8In this regard, there were a number of cases cited including his Honour Justice Biscoe in Goldberg v Waverley [2007] NSWLEC 259. The Court has the benefit of reading the judgments provided to the Court. Justice Biscoe, advises of the wide power of s 39(2) in determining development application. At the same time, as submitted on behalf of the council and as provided in the authority of the Chief Judge of this Court in Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No4) [2009] NSWLEC 226 , one must have regard to the objectives or the purpose of the Act in which consent or concurrence is granted by the Court and in this regard it is a matter of an assessment and not a matter of merely dismissing the provisions and the objects of the particular acts under which approval would be granted. 9The Court together with the parties carried an extensive inspection of the site and surrounding area to understand the relationship of the roadway, the garden bed, and also the pedestrian crossing. In the garden bed outside the subject premises there is a eucalypt tree, a Sydney Blue Gum that is some twenty to thirty years old on the evidence of Ms Fennell, and this is located in the garden bed that would require removal in part for the driveway. The garden bed is erected on the road pavement and has a sandstone base. 10The evidence of the expert Ms Fennell is that the tree is in good health, it does have superficial lesions or cankers, however, this does not affect the structural integrity of the tree. In her opinion the tree would have a life expectancy of some fifteen to twenty years. It is described as of good vigour and growth, of fair condition, and the health is good. In terms of the longevity of the tree, in her opinion, if the structural root zone was in any way severed, that would be impact on the tree. On site it was ascertained the extent of the 2.5 m from the trunk of the tree, the alternatives of a driveway approaching the site at an angle, and not perpendicular to the driveway was also discussed. 11The evidence of Mr King is that driveways are provided in terms of the Australian Standard, such that they are generally at 90 degrees, and this is to avoid two things: "that the angle is so that cars need to slow down to turn into driveways as such. If they are angled to the footpath, it takes up a greater degree of the footpath, and cars tend to travel faster along such driveways as opposed to a deliberate perpendicular 90 degree angle to the footpath." 12The Court also heard that the council has a parking permit system in accordance with RTA guidelines, such that there are two parking permits provided for the subject premises with a third temporary parking available for visitors. This scheme operates throughout the City of Sydney area, including that part formerly included in Leichhardt LGA. 13The Court has the benefit of hearing the concerns of the council and the statutory planning framework is contained within the council bundle as noted. I note that there is a Draft Local Environmental Plan and it is common ground or not contested that white this is not necessarily imminent it reflects a continuation of council's policies and in this regard, is considered to be certain. It incorporates many of the provisions as envisaged in what is known as council's 2030 vision or plan for the City of Sydney. The draft LEP is a relevant matter under s 79C(1)(a)(ii) although it is noted that it is not imminent and therefore I would not give it the same weight. Nonetheless, one must have regard to its provisions, and the council outlined the aims of the plan, in particular, F, to ensure the patterns of land use and density reflect the existing and future capacity of the transport network, and facilitates walking, cycling and the use of public transport. 14A relevant provision, is that contained in clause 5.9 for 'preservation of trees or vegetation'. This particular provision is to incorporate into the plan what are generally referred as Tree Preservation Orders and a Development Control Plan is to then identify various species that are exempt from the provisions of lopping, removing, injuring, et cetera, vegetation. 15There is no development control plan at this point in time but it would be envisaged that when the plan is made, that a Development Control Plan would accompany same to give effect to the plan. The draft plan also has provisions on heritage and conservation, which must be taken into consideration. 16The current planning provisions for the subject site are those contained in what is the Leichhardt Local Environmental Plan 2000 . T he Leichhardt LEP is one that contains land use objectives, in particular, at cl 7 subclause 3, and consent must not be granted for a proposed development within the zone unless the consent authority has taken into consideration such of the objectives of the plan as are relevant to the proposal, and is satisfied that the development is consistent with those objectives. 17In particular, the general objectives in cl 13 subclause 2(a) and (b). Clause 13 (2) provides: The general objective for the built and natural environment and amenity is to encourage the design of buildings, structures and spaces which are compatible with the character, form and scale of the area to: (a) protect and enhance the area's natural features, character and appearance, and ... (d) maintain amenity and contribute to a sense of place and community... 18The urban design principles are contained at cl 14 and require that: "Before granting an application for consent for development within any zone, the consent authority should consider whether (b), the proposed development reinforces and enhances the streetscape character of the locality. (g) the proposed development establishes and enhances the public domain in terms of the amount, location, design, use, management of public spaces in and around buildings." (k) the proposed development maximises opportunities to utilise public transport services, pedestrians and bike or cycleway links." 19The provisions of the Leichhardt LEP are contained in cl 15 and the objects include: "to enhance the character and identity of suburbs and localities by protecting attributes including streetscapes and townscapes and to prevent undesirable incremental change to places, which reduces the heritage significance of the locality." 20The general provisions for the heritage items are contained at cl 8, the heritage significance of the conservation area, with particular regard to any building or trees. It is noted that the subject tree is not identified as a heritage item as such. It is though within the heritage conservation area as contained in council's planning regime, and the Leichhardt LEP has a map which shows the conservation areas and landscape elements. 21The Eucalypt Blue Gum, is not a landscape element as such, however it is to be considered in the context of the council's framework for the conservation area. In this regard there is the DCP for Leichhardt which provides for the 'Bishopthorpe Distinctive Neighbourhood', and this is "a landscape or an area that is distinctive neighbourhood located to the south of Hereford between Forest Lodge and St Phillips distinctive neighbourhoods and situated in the main Glebe Plateau". 22It is an area that is distinctive and is shown on the map: "The Bishopthorpe Distinctive Neighbourhood remains one of the most unique and coherent townscape areas within the Leichhardt municipality, and the neighbourhood largely retains the historic low scale character and development predominantly reflects early Victorian style with elements retained from the Georgian area. A considerable attribute within Bishopthorpe is that of continuous footpaths unbroken by driveways. This contributes to and enhances pedestrian amenity of the neighbourhood." 23The desired future character is: "To promote land uses and urban design that contributes to the character and identity of the neighbourhood while protecting the conservation areas that combine to create the character, enhance the unified and historic townscape of Bishopthorpe, and the landscape elements maintain and enhance the prevalence of landscaping, and the encouragement of street trees and private tree plantings which are of an appropriate species, bulk and height." 24The other controls within the DCP relevant for my consideration include the number of driveway crossings should be minimised, and are discouraged. This is in the Neighbourhood Controls section of the Development Control Plan. The City of Sydney Council has a Development Control Plan of 2006 which is also a relevant matter for consideration, in particular, cl 7.2 subclause 7 that states: "Infill development is not to include garages and car access to the front elevation of the development where these are not characteristic of the area." 25There are also requirements for designing for vehicles and provisions that vehicle access and parking space is not to be located in the front of the site, and that, notwithstanding, the design for such access is subject to proposed new infill development with 15 m minimum frontage to sites. 26The Court has the benefit of the applicant's evidence to the Court as well, and there were a number of photographs provided in terms of the difficulty of parking within the area, and it was submitted on behalf of the applicant that the circumstances of this case are that the applicant is simply seeking a driveway and garage, and the reasons for this, are the scarcity of onsite parking, the inability to park directly outside the premises, and security risks associated with on street parking. In this regard, there was evidence provided in terms of maps showing what are the crime hot spots of vehicle thefts and break-ins to vehicles. 27It is noted that the maps that were provided from the New South Wales Bureau of Crime Statistics and Research show large parts of the City of Sydney that are in the top 10 and 20 per cent of the density of criminal incidence relative to the Sydney LGA, and for steal from motor vehicles, the subject site is within an area of the top 20 to 30 per cent, malicious damage to properties, the top ten to twenty per cent, and the motor vehicle theft in the top ten per cent. As I said, these maps show significant large spatial areas of the City of Sydney in these statistics of maps. 28The above may be reasons that motivate an applicant to submit a development application where development is permissible, but nonetheless the Court, in its assessment must consider the planning merits, and the broader planning framework and the impacts of the proposed development must be carefully assessed. 29Clearly where there are no impacts, then no doubt private requirements of undertaking works and development may be appropriate, but one must carry out a proper assessment in terms of council's controls for the area and guidelines. There was a great deal of discussion about character, and on the site inspection, a walk of the area indicated that there are a number of driveways that are in existence within the area, however, this in itself does not provide justification for approval of an application. There was no evidence to the Court as to the date of these driveways. It could be seen clearly that some were more recent, but many would have predated the existing planning regime and controls, and it is the current planning framework under which I must assess the development application. 30At the end of the proceedings, there were questions raised by the Court in terms of the details for the gradient of the driveway and the floor to ceiling height garage door as shown on the plans. Unfortunately, the plans were of such a reproduction that could not be scaled. At the end of the day however, it is not the details of the driveway and the gradient as to why the application fails but rather it is the fundamental concerns or issues raised by the council as to why this portion of the modification application fails. 31As this an ex tempore judgment, it is only fair and reasonable that I state at this point my determination, but clearly, I will give my reasons as to why the application is not worthy of approval on a merits assessment. 32The contentions raised by the council in the Statement of Facts and Contentions can be expressed as follows. Firstly street landscaping, and in the particulars the council refers to a number of the provisions in the plan, and the draft plan is also referred to. The provisions of the development control plan include the impact on the Eucalyptus Blue Gum tree in the street located on council property, and the impact that the proposed driveway would have on the tree. I do note that there were conditions proposed which relate to root zoning or root mapping for the tree, and this may have led to a reconfiguration of the driveway. The reconfiguration of the driveway to avoid the structural roots of the trees however does have further implications for the configuration for the basement parking that on the evidence of council's expert engineer is not desirable, and does not meet the Australian Standard. 33The second issue raised by the council is the impact of the driveway on the existing pedestrian crossing. Council's expert notes that the community uses the pedestrian crossing and its use was also referred to in letters of objection. It is also noted that since the pedestrian crossing was installed it has been located in the current position. This previously served the pre-school or kindergarten which is now owned by Sydney University and no longer operates, and there is now no warrant of sufficient number of pedestrians in the area to call up a warrant as required by the RTA in terms of the numbers of persons crossing the street. Nonetheless, it is in existence and it is the council's engineer's desire or preference that the pedestrian crossing be retained. 34There was evidence or rather there was discussion about the numbers of persons that may use the pedestrian crossing. Yes, it may be a fact that not everybody chooses to use a pedestrian crossing, and their desire line is such that they do not use it. By the same token there are also those in the community, in particular, elderly people and those with prams, et cetera, that will walk a further distance for greater safety that a pedestrian crossing provides. 35The other issue raised by the council is that the streetscape character of the heritage conservation area, and in this regard, as I said, the tree in itself is not a heritage item. It is the conservation area and it does contribute to the amenity of the conservation area as such. The council also raised the issue about the inconsistency of the proposal with the objectives of the Leichhardt LEP . 36The Court in its overall assessment must not only consider the modification in the context of the planning instruments, but the relevant provisions of s 79C which includes "the suitability of the site for the development". And in my assessment, the driveway to provide access to the basement parking is not suitable in terms of the subject site. It would be a most contrived entry in order to avoid or to redesign to ensure the longevity of the tree. The tree is an important streetscape element, however, even if the tree was not there, the pedestrian crossing does provide a community benefit and in this instance the private needs or wishes of the applicant do not provide a confluence with the public interest, and in my assessment there is a detrimental impact on the environment that is unreasonable and unnecessary in the circumstances of this case. 37The evidence adduced in an affidavit that there are currently five people living in the subject un-renovated premises with five cars, also does not justify the basement parking. Clearly, people that have the convenience of an inner city location and the availability of good public transport ard the other advantages of living in close proximity to the city and its facilities and infrastructure cannot expect the same on-street parking availability as in suburbia. 38Furthermore, there is no right to be able to park directly outside one's premises and the evidence to the Court is that while parking is at a premium in this area is not peculiar or unique to this inner city precinct and in my assessment must be accepted as part of the fine grained urban fabric of living with the convenience of proximity to the city. 39In terms of enhancement of the environment and the conservation of the heritage area I am of the opinion that the driveway is not consistent with the council's objectives which is a requirement or threshold question in terms of cl 73 of the Leichhardt LEP. 40The Court in its assessment must consider the impacts well beyond, as I stated, the needs of an applicant. In terms of the Roads Act, in this instance, I decline to utilise the provisions of s 39(2) in terms of the objects of the relevant Roads Act, which includes the Road Transport Act and Regulations and the Transport Administration Act and cl 138 of the Roads Act. I must have regard to the objects of the Act which are contained in cl 3, and the objects of that Act are to set out the rights of members of the public to pass along public roads and to set out the rights of persons who own land adjoining public roads to have access to public roads, and H is to regulate the carrying out of various activities. 41In the circumstances of this case, having regard to the provisions of the Roads Act and Regulations, the safety of pedestrians is also an issue that must be given consideration in the assessment of whether road openings are appropriate. It was submitted on behalf of the applicant that the planter bed could in fact be reduced in size to still accommodate a driveway. I am not satisfied after careful assessment that it is possible to redesign a driveway that would be satisfactory in terms of pedestrian safety and access, that is in terms of not only using the pedestrian crossing but the footpath. 42Based on the above determinative reasons for my refusal are in combination, the pedestrian crossing, the configuration of a driveway and the existence of the street tree which does provide for amenity to the conservation area and is a significant tree in the streetscape. As I stated, even if the tree was not in its current position, the driveway in my assessment would be contrived, and it could not be accommodated with the pedestrian crossing, and I am not prepared to approve or require the removal of the pedestrian crossing, even though I am empowered to under s 39(2) of the Land and Environment Court Act. 43The fact that there are other driveways within the area, is a matter that is relevant to the consistency that council applies its policy, however, the applicant persuaded that council's provisions have been inconsistently applied and I must give due consideration to the council's Development Control Plan provisions. In this regard, the DCP must be a central focus in my assessment, and I refer to the Court of Appeal judgment in Zhang v Canterbury City Council [2001] NSWCA167 where they must be a central focus to consideration, and I accept that they are not mandatory, but nonetheless I am not persuaded that in the circumstances of this case that they should be set aside. 44The importance of development control plans, the importance of certainty in the planning process, was also a matter raised in the judgment of the Chief Judge of this Court in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472. Council's controls and their future LEP have a nexus or rather a basis inform in terms of the council's vision and where there has been public participation and the development of controls and guidelines in this regard, they also must be given greater consideration. 45I do not accept the applicant's submission that I should give them limited weight because they are inappropriate planning solutions, they have been developed through public consultation and there is no expert evidence to say that they are inappropriate planning solutions, that is, that parking cars on the street is an attempt to preserve the aesthetics of the area. The logical conclusion, if I accepted this, would be the cumulative impact. If every dwelling had a car driveway, irrespective of the width of the frontage there would be few if any spaces left on the street, and council acknowledges the fact that there is a need for resident parking where there are not garages provided, and therefore it has instituted its parking permit system. 46As I said, parking will be and/or will be, and into the future at a premium in inner city areas, and the decision or the choice to live in these areas must have regard to such circumstances. Clearly, people live in these areas for the benefits of the proximity to infrastructure including public transport and the city itself. 47Whilst I raised issues about the design of the driveway and the practicality or execution of what was shown in the plans, that is not the reason for my refusal, but rather the modification application fails on a merits assessment. 48Accordingly based on my assessment above, the s 96 modification appeal in respect of 103 Arundel Street, Forest Lodge, for basement parking for three vehicles and a driveway crossing is determined by the refusal of consent. The council has approved of the other minor modifications of the s 96 application, and as such the whole of the s 96 modification is not refused but rather only that part which was the subject of the appeal. That is, the basement parking and the driveway crossing. 49The formal orders of the Court are: (1)The appeal pursuant to s 34AA of the Land and Environment Court Act for basement parking and a driveway crossover at No 103 Arundel Street Forest Lodge is dismissed. (2)The exhibits are returned to the parties. J S Murrell 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. Decision last updated: 06 October 2011