Land and Environment Court New South Wales Medium Neutral Citation: Atkin v Waverley Council [2011] NSWLEC 1352 Hearing dates: 6 December 2011 Decision date: 06 December 2011 Jurisdiction: Class 1 Before: Hussey C Decision: (1)The appeal is dismissed. (2)Development consent for DA 231/2011 for alterations to the front of the dwelling and provision of a car space and new fence and 168 Wellington St Bondi is refused. (3)The exhibits may be returned except 1, 7 and A. Catchwords: DEVELOPMENT APPLICATION - Alteration of front facade of dwelling to enable parking area in front of dwelling Legislation Cited: Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2010 Cases Cited: Anders v Waverley Council [2007] NSWLEC 760 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Category: Principal judgment Parties: Daniel Atkin (Applicant) Waverley Council (Respondent) Representation: Solicitors Mr M McMahon (Applicant) Mr S Patterson (Respondent) File Number(s): 10951 of 2011 Judgment Background 1This appeal was lodged against council's refusal of a development application for alterations to the front of a detached dwelling house located at 168 Wellington St, Bondi, to enable the creation of parking area within the front setback area. 2This proposal involves the complete setback of the existing front facade of the dwelling by 80 cm in order to achieve a minimum setback distance of 5.5m to the road boundary to facilitate an on-site car space. The parking space involves the construction of two car strips from the existing kerb to the front of the dwelling and they are to be graded and raised by approximately 200 mm above the existing front paving area. 3The proposal also includes complimentary landscaping, together with the erection of a variable height paling fence along the street alignment, which includes a sliding gate adjacent to the driveway strips. 4For the appeal the council identified the following contentions: * Whether the proposal would unreasonably detract from the design integrity of the existing dwelling and unreasonably impact on the streetscape * Loss of on-street parking space * Pedestrian and vehicular safety (not pursued) The site 5The site is located on the northwestern side of Wellington Street, Bondi Beach. It is rectangular in shape with the 7.62 m frontage to Wellington Street and a length of 40.23 m, resulting in a total site are of 306 sq m. 6Existing on the site is a single storey detached dwelling with no vehicular access and no on-site parking. The front setback area of the dwelling is substantially paved but it includes a mature frangipani tree. 7The site is not listed as a heritage item within a heritage conservation area. Planning controls 8The following apply in the subject matter : * Waverley Local Environmental Plan 1996 (WLEP) (a) The Specific Aims at cl 3 and the zone objectives at cl 10. * Waverley Development Control Plan 2010 (WDCP) (a) Part D1 - Dwelling house and Dual Occupancy Development (b) Part I1 - Land Use and Transport The evidence 9The evidence in this matter comprises a joint planning report prepared by: * Mr J Kosnetter; Senior planner Waverley Council * Mr A Betros; Consulting planner for the applicant 10In response to the streetscape issue, Mr Betros says that this comprises consideration of both sides of Wellington Street and contains a mix of semi-detached dwellings, attached dwellings and residential flat buildings which is not intact or consistent. He says that there are numerous other dwellings that have hardstand areas within the front setback and he considers the proposal is consistent with those. Overall he says that the combination of the altered front facade, vehicle driveway strips, front fencing and landscaping will result in a satisfactory amenity outcome. 11In support of this opinion, Mr Betros identified a number of other properties generally in the area where similar types of parking arrangements have been approved. One example is at No 58 Anglesea Street, Bondi. 12Against this, Mr Kosnetter says that the proposed alterations will both affect the integrity of the dwelling and its contribution to the streetscape. Insofar as the proposal is to effectively shift the front facade by about 80 cm and recreate the existing facade presentation; nevertheless he maintains his opinion that the alterations will be discernible and detract from of the building and streetscape. 13Whilst he acknowledges the existence of other such parking area within the setback areas, he says that: The building is a good example of its typology and has a consistent form with the surrounding dwellings. The increased setback proposed for the front wall alters the form of the building that would set it apart from the rest of the dwellings in the street. The placement of a vehicle in the front yard area then further detracts from the streetscape appeal of the dwelling...In my opinion these examples demonstrate an undesirable streetscape appeared dominated by cars (when parked) or open/empty paved areas (when not used) that is discouraged in the DCP. 14In support of his opinion, Mr Kosnetter says that since the operation of DCP 2010, which restricts parking spaces within the front building line, council has consistently adhered to these provisions. He referred to the adjoining property (No 170), which was initially granted consent for alterations but a proposed front car parking space was withdrawn. 15The proposed car space at No 170 was subsequently applied for on the basis that the front facade of the dwelling be demolished and replaced with an additional 60 cm set back from the street. However this proposal was refused. Conclusion 16Having undertaken a view and considered the disparate planning opinions, I determined this application on the basis of the existing planning framework. 17The primary control is the LEP where the general aims in clause 2 include: (c) to improve the amenity, safety and environmental quality of the built and natural environment. 18The specific aims in clause 3 (11) (b) is: to encourage land use patterns which reduce the need to travel by motor vehicles and increase the use of public transport, bicycles and walking to reduce the adverse impact of travel of the environment . 19Importantly, cl 10 contains the zone objectives and requires the consent authority to be satisfied that the proposal meets one or more of the following zone objectives: (a) to allow a housing only in the form of dwelling houses and boarding houses; (b) to maintain and improve the amenity an existing characteristics of locality predominantly characterised by dwelling houses; and... 20Having considered this requirement I accept that the proposal meets the general objective (a). 21The more detailed controls are in DCP 2010, which I understand has been progressively updated since 1999. Section 5.7 the deals with vehicle access and parking where by: 5.7 Vehicular Access and Parking The objectives, strategies and controls for vehicular access and parking are held in this Section. These apply to single dwellings, dual occupancies, semi-detached, attached and terrace-style housing. For further details refer Part I1. Objectives (a)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; (b)Maximise pedestrian and vehicular safety; (c)Minimise loss of on-street car parking, and (d)Minimise loss of views from the public domain. If the proposed off-street parking facilities or associated works will unreasonably detract from the appearance of the dwelling, streetscape or landscape, or from the heritage quality, or adversely impact on the pedestrian environment, or reduce the availability of on street car parking, a zero parking requirement may be imposed. Note: The characteristics of some sites may mean that car parking should not be provided on site. 22Section 5.72 deals with garages and carports and includes controls that no part of the street facade of a building is to be altered or demolished primarily to accommodate car accommodation. 23Part I1 contains the controls for Land Use and Transport where the objectives relevantly include: (b) ensure the provision of off-street parking is subject to consideration of urban design, streetscape ... 24Section 5 on Urban design, Streetscape and Heritage acknowledges that the retrospective provision of off-street car parking has caused significant impacts on streetscapes and accordingly provides for designs to incorporate: (b) existing on-street parking supply is protected by minimising impacts of additional vehicle kerb crossings. (c) the continuity of streetscapes, streetscape elements and landscaping is maintained... 5.2 Parking and Access (a) All car accommodation is to be located behind the front building line. (b) No part of the building is to be altered or demolished to primarily provide car parking except where topography or appropriate building design allows. 25In summary then, it seems to me that the overall effect of the controls is to restrict the provision of car spaces within the front setback areas, partially on the basis of reducing dependence on vehicles. In this regard, I note that no parking spaces are required for four bedroom dwellings. 26In this subject matter, the threshold issue is in regard to the provisions of 5.2 (b) of the DCP, which does not allow parts of a building to be demolished or altered primarily for car parking, subject to topography or design considerations. 27Whilst I accept that discretion can be exercised in the application of the DCP, nevertheless I think that the overall intent of the controls is to retain and enhance the streetscape/amenity of the residential areas and this is not achieved by the proliferation of parking areas within the front setback areas. 28Accordingly, it is apparent that the proposed demolition and reconstruction of the front facade within an additional 80 cm setback is contrary to these controls. Whilst this facilitates the on-site car parking space, it then allows vehicles to be parked inside, part of which will be seen above the fence or through the gate. 29Based on my observations at the view of the neighbouring properties, I accept Mr Kosnetter's opinion that the proposal would detract from the streetscape presentation in this section of Wellington Street. The adjoining houses maintain similar building setbacks and incorporate attractive landscaped front areas. Therefore allowing the proposal in this context would, in my opinion, detract from the streetscape. 30Consequently, I do not think that the approval of this demolition to primarily facilitate a car space within the front setback area satisfies the DCP. 31Another relevant issue concerns the reduction in the on-street car parking. Insofar as the planners have different opinions, I am satisfied that the location of the proposed driveway strips would still maintain six on street spaces, albeit probably not as convenient as currently available. But I do not consider the proposal would fail on this basis. 32I note that submissions were made about a number of other similar types of cases, some of which were approved and others refused. However those matters were determined on their merits and because of the differing facts and context concerning the driveways/crossings/parking spaces, I do not consider it appropriate to give any significant weight to those findings. 33However in the matter of Anders v Waverley Council [2007] NSWLEC 760 Murrell C referred to the matter of Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75, which dealt with the issue of precedence. 34It seems to me that in the circumstances of this case, there is a real possibility that approval on the subject application will create a precedent, particularly because No 170 previously sought a similar outcome proposing a 60 cm setback of the front facade of the dwelling to enable off-street parking. Likewise, No 166 has indicated its intention to seek a similar type of off-street parking. 35In the event of these properties being treated similarly and off-street parking spaces being allowed, then I consider that cumulative effect would significantly detract from the streetscape amenity and integrity of the dwellings. 36In the ultimate, I give determining weight to the provisions of the DCP, particularly s I1 5(2), which I do not consider the proposal satisfactorily complies with and therefore results in its refusal. Court orders 37The Court orders that (1)The appeal is dismissed. (2)Development consent for DA 231/2011 for alterations to the front of the dwelling and provision of a car space and new fence and 168 Wellington St Bondi is refused. (3)The exhibits may be returned except 1, 7 and A. R Hussey 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: 09 December 2011