Land and Environment Court New South Wales Medium Neutral Citation: Hales v Parramatta City Council [2015] NSWLEC 1210 Hearing dates: 22 May 2015 Date of orders: 17 June 2015 Decision date: 17 June 2015 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is dismissed. 2. The development application (505/2014) to construct an extension of a driveway within the front setback area and a second vehicle crossing with a gate at 84 Eastwood Avenue, Epping, is refused. 3. The exhibits, except Exhibits 1 and A, are returned. Catchwords: DEVELOPMENT APPLICATION: extension of driveway and a second vehicle crossing with a gate. Impact on character of the area. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 (LEC Act) Parramatta Local Environmental Plan 2011 Cases Cited: Davies v Penrith City Council [2013] NSWLEC 1141 Pafburn v North Sydney Council [2005] NSWLEC 444 Category: Principal judgment Parties: James and Emily Hales (Applicant) Parramatta City Council (Respondent) Representation: Counsel: Mr M Staunton (Applicant) Solicitors: Mr G Hartley of Hartley Solicitors (Applicant) Mr A Gough of Storey Gough Lawyers (Respondent) File Number(s): 10233 of 2015 Judgment 1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Parramatta City Council (council) of a development application (505/2014) to construct an extension of a driveway within the front setback area and a second vehicle crossing with a gate at 84 Eastwood Avenue, Epping (site). 2. The key issue in dispute between the parties is whether the proposal is inconsistent with the character of the area (Contention 1). Site and locality 1. The site is located on the northern side of Eastwood Avenue. It is rectangular in shape with a frontage of 30.48m and an area of 1532sqm. The site is developed with a two storey dwelling that has been recently extended with a new driveway on the western side boundary and turning bay forward of the house. The driveway leads to a porte-cochere which provides covered access to the house and to the double garage located at the rear of the lot. 2. The site adjoins residential development and the locality is predominantly one and two storey dwellings in landscaped settings. The subdivision pattern is of allotments with frontages of about 15m and the site and one other site are the only "double blocks" in the street, although the site is on one title. Planning controls 1. The site is zoned R2 Low Density Residential under Parramatta Local Environmental Plan 2011 (the LEP) and the development is permissible with consent. Clause 2.3(2) of the LEP provides that regard must be had to the objectives of the R2 Zone. The site is within the Epping/Eastwood Conservation Area (HCA) and under cl 5.10(4) of the LEP the effect of the proposed development on the heritage significance of the HCA must be considered. The council did not contend that these matters were not satisfied. 2. Parramatta Development Control Plan 2011 (the DCP) is relevant. Part 3 – Development Principles of the DCP provides objectives, design principles and controls for development which relevantly include cl 3.2.5 – Streetscape: Objectives O.1 To ensure new development responds to, reinforces and sensitively relates to the spatial characteristics of the existing urban environment. O.2 To increase the legibility of streetscapes and urban spaces so that the inter-relationship between development, landscape and open space is visually coherent and harmonious. Design Principles P.9 Vehicular access points are to be minimised and should not break the continuity of the streetscape. Landscaping should be used to minimise the visual intrusion of vehicular access points. 1. The Table to cl 3.1.3 of the DCP includes requirements for landscaped area (40% of the site) and deep soil zone (30% of the landscaped area, including 50% at the rear of the site and 15% at the front of the site). Contention 2 of the Statement of Facts and Contentions related to the proposal's compliance with these controls. As a result of amendments to the application and further information, the parties agree that the application meets these requirements and the contention was not pressed by council. 2. Part 4 – Special Precincts contains specific design requirements for certain precincts, including Parramatta City Centre, town and neighbourhood centres, special character areas, strategic precincts and heritage conservation areas. Clause 4.4.1 – Epping relevantly includes the following objective and controls that were in dispute between the parties: Objective O.1 To continue the high standard of design achieved in recent years so that the original form and character of houses remains obvious. General Controls Siting and Garden Area … C17 Maintain front garden areas, lawns and associated pathways as traditional garden settings for houses. …. C.21 Keep at least 60% of the site as garden space. Council will consider a minimum garden space of 50% where allotments are less than 700 m2 Garages, Carports & Utility …. C37 Maintain the established pattern of one opening per allotment for car access. Evidence 1. The Court visited the site and heard objections from the adjoining neighbour whose key concerns were the proximity of the new driveway to his property and the resultant impacts of noise, increased run off and loss of planting. In his opinion, a second driveway was unnecessary and uncharacteristic of the area. 2. The matter commenced as a conciliation conference under s34AA of the Land and Environment Court Act 1979 (LEC Act). The parties did not reached agreement, the conciliation conference was terminated and the hearing held forthwith. 3. The Court heard expert planning evidence from Mr I Glendinning, for the applicant, and Mr N Clarke, for the council. 4. During the hearing, the applicant sought and was granted leave to amend the application to provide wheel tracks, instead of a bitumen driveway, and increased planting. The applicant also proposed a condition requiring the exiting driveway to also be changed to wheel tracks and provided a landscape plan and increased information of the landscape areas and deep soil. With these changes and further information, the experts agreed that the proposal would comply with the landscaped area and deep soil controls in the DCP. 5. The key issue that remained in dispute was the provision of a second driveway crossover and the amount of garden space in the front setback area and whether this was consistent with the character of the area. 6. Mr Glendinning accepted that the proposal did not technically comply with the requirements of C37 as the proposal would result in two opening for car access on one allotment. The existing "garden space" may be marginally reduced by the proposal and not comply with C21. Furthermore, he accepted that a driveway in the front setback area, if it was regularly used for parking, would not maintain a traditional garden setting for the house, as required by C17. 7. Nevertheless, Mr Glendinning considered the proposal met the objectives of these controls as the pattern of subdivision in the area has allotments which are half the size of the site and consequently an additional driveway entrance at the opposite end of the frontage would maintain the pattern of openings for car access. Furthermore, he considered that the proposal would enhance safety by enabling cars to leave the site in a forward direction but acknowledged that this can presently occur with the turning bay. The proposed landscaping would screen the driveway and provide an improved "garden space" for the house. He noted that in 2007 council had approved subdivision of the site to provide a battle-axe allotment with separate access. While this approval has lapsed, Mr Glendinning considered that it demonstrates that an additional access would not be incompatible with the character of the area. 8. Mr Clarke acknowledged that the proposal to reduce the existing driveway and turning area by providing wheel strips and the increased landscaping were improvements but maintained his concerns that the additional driveway entrance was not consistent with the established pattern of one opening per allotment, it would enable the driveway and cars parking in front of the house to be viewed from the street and not provide adequate garden space or setting for the house. In his opinion, the proposal did not comply with or meet the objectives of the controls. Findings 1. The Distinctive Characteristics of Epping/Eastwood in the DCP include: A range of allotment sizes a considerable number of houses with original low brick fences and stone retaining walls as well as mature gardens with many planting contemporary with the houses, and together they create a homogenous area with attractive treed streetscapes. lack of structures, garages, carports between the building line and the front fence 1. The experts agree that the proposal does not comply with C17, C21 and C37 of cl 4.4.1 of the DCP but disagree on whether it meets the objectives of these controls. The site is a double allotment, which is unusual in the locality and the frontage of the site would provide about a 20m separation between the existing and proposed driveway. Consequently, the additional driveway on one allotment, in isolation, may not be a reason to refuse the application. However, the driveway openings enable clear views into the property and the driveway extension would transverse parallel to the house and be able to be viewed. While the amendments to provide wheel strips and increased landscaping will reduce the impact of the driveway, it would remain an element that is not characteristic of the area and would not maintain a traditional garden setting for the house or adequate "garden space", particularly if cars are parked along the driveway and parallel to the house. While the original form of the house would remain obvious, its character of being within a garden setting would not. Consequently, the development does not meet Objective O1 of cl 4.4.1 of the DCP. 2. The driveway entry, extension and parked cars would be a "visual intrusion" that would change the spacial characteristics and the inter-relationship of the house to its landscape and front open space and therefore does not meet Objectives O1 and O2 of cl cl 3.2.5. 3. The impacts of the proposal are to be assessed against its reasonableness (see Davies v Penrith City Council [2013] NSWLEC 1141 and Pafburn v North Sydney Council [2005] NSWLEC 444. As I understand, the purpose of the driveway is to enable cars to exit the site in a forward direction for increased safety and to provide additional parking. The existing house has a porte-cochere, which provides direct access to the house, as well as a turning bay that a car in the porte-cochere or driveway can reverse into and then leave the site in a forward direction. However, if a car is parked in the turning bay another car would not be able to leave the site in a forward direction. There is also a double garage at the rear of the site but with no turning bay or direct access to the house. The proposal seeks to enable a car parked in the turning bay or in the extended driveway to leave the site without reversing for safety and convenience reasons. Cars that are in the existing driveway or in the porte-cochere would still need to undertake a reversing manoeuvre. Consequently, unless cars are parked in front of the house the proposal would provide little additional safety benefits. 4. Cars parking in front of the house in the "garden space" would not be consistent with the existing character of the area or what is sought by the planning controls, where driveways and garages/carports are to the side of the house. Parking or a hardstand area in front of a house may be justified if it were not possible to provide it to the side or rear, but this is clearly not the case on this site where there is ample and convenient parking both on site and along the street frontage. 5. For these reasons, the proposal does not meet Aim 2(h) of the LEP "to enhance the amenity and characteristics of established residential areas" and consequently the application does not warrant approval. Orders 1. The Court makes the following Orders: 1. The appeal is dismissed. 2. The development application (505/2014) to construct an extension of a driveway within the front setback area and a second vehicle crossing with a gate at 84 Eastwood Avenue, Epping, is refused. 3. The exhibits, except Exhibits 1 and A, are returned. Annelise Tuor 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: 17 June 2015