Land and Environment Court New South Wales Medium Neutral Citation: Danny Lattouf v Leichhardt Municipal Council; Josephine Bitar v Leichhardt Municipal Council [2015] NSWLEC 1451 Hearing dates: 19 October 2015 Date of orders: 05 November 2015 Decision date: 05 November 2015 Jurisdiction: Class 1 Before: Hussey AC Decision: The Court makes the following orders: (1)The appeals No 10660 of 2015 and No 10661 of 2015 are dismissed. (2)Development Application No D/2015/94 for construction of a hard stand parking space and vehicular gates at 14 North Street, Leichhardt is refused. (3)Development Application No2015/95 for the construction of a hardstand parking space and vehicular gates at 16 North Street, Leichhardt is refused (4)The exhibits may be returned except for 1, 2, 7, A, B, E and F. Catchwords: Development application; Construct a new vehicular crossing and hard stand area in the front of a new dwelling house, forward of building line, reducing landscape area and streetscape impact. Legislation Cited: Environmental Planning and Assessment Act 1979 Leichhardt Local Environment Plan 2013 SEPP (BASIX) Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Leichhardt DCP 2013 Cases Cited: Jacob v Leichhardt Municipal Council [2014] NSWLEC 1140 Sue Higgins v Leichhardt Municipal Council [2004] NSWLEC 103 Category: Principal judgment Parties: Danny Lattouf (Applicant) – 15/10660 Josephine Bitar (Applicant) – 15/10661 Leichhardt Municipal Council (Respondent) Representation: Solicitors: Mr C McFadzean, Swaab Attorneys (Applicant) Mr M Bonanno, Leichhardt Municipal Council (Respondent) File Number(s): 10660 of 2015, 10661 of 2015 Judgment Background 1. These proceedings involve two concurrent appeals on adjoining lots at No 14 and 16 North Street, Leichhardt. The appeals are against Council's refusal of development applications for the construction of new vehicular accesses to a hard stand area and landscaping within the front setback areas of recently constructed dwellings. The appeals are: 1. Appeal No 10660 of 2015; in respect of No 14 North Street 2. Appeal No 10661 of 2015; in respect of No 16 North Street. 1. The appeals arise from the following (summarised) circumstances: 1. The subjects lots (No 14 and 16) were created by subdivision of 2 irregular shaped lots (Lots 9 and 1) in October 2103 subject to conditions, including the retention of a large Peppercorn tree and the closure of the two redundant vehicle crossings at the site. 2. A Complying Development Certificate (CDC) for new dwellings on each allotment was approved on 21 May 2014, including on-site parking but was subsequently surrendered on 28 May 2014 by new owners 3. The new owners then obtained another complying development certificate (CDCP/2015/27) on 5 February 2015 from Certified Building Specialists (Private Certifier) for the 2 dwellings as presently nearing completion. This did not include on – site car parking provisions. 4. The subject development applications for the 2 driveway crossings and frontal hard stand areas were lodged in April 2015. 5. Council responded to the application by identifying issues concerning loss of on street car spaces and inconsistencies with the LDCP controls. The development application was subsequently refused on 29 April 2015. 1. The appeal commenced by way of a s 34 Conciliation conference and as there was no agreement by the parties, the conference was terminated and proceeded to determination on the basis of the s34AA provisions 2. For the appeal, Council identified a considerable number of contentions, which were reviewed at the hearing and summarised as follows: 1. The suitability of the proposed parking forward of the building line in contravention of planning controls in a street where residential properties predominantly have no off street parking forward of the building line. 2. The effect of the proposed parking in the front of the building line in denying the scope for landscaping and front garden setting for the dwelling houses. 3. The adverse impact on the existing and future streetscape character and cumulative effect on off street parking displacing front gardens. 4. Development by creep. The site 1. The land is described as: 1. 14 North Street; being Lot 2 in DP 1196552 and having an area of 208.4 sq m and 6.05m frontage to North Street. 2. 16 North Street; being Lot 1 in DP 1196552 and having an area of 208.4 sq m and 6.05m frontage to North Street. 1. The area proximate to the site is characterised by a mixture of detached dwellings, terrace dwellings and semi-detached dwellings of mixed single and 2 – storey form and appearance. There are a few remaining older style commercial and industrial premises. 2. There is a distinctive difference in the form of onsite parking arrangements with some of the newer developments having no onsite parking and front gardens in the building setback areas. Older developments, with the exception of a minor few, have no onsite parking and instead have some forms of landscaping at the front. Those that do have onsite parking, it is mainly at the rear of the property and accessed via a side driveway. Planning Controls 1. The following planning legislation, environmental planning instruments, development control plan, policies and planning agreement apply to the proposal. 1. Environmental Planning and Assessment Act 1979, as amended; 2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; 3. Leichhardt LEP 2013 (LLEP 2013); under which the sites are within the R1 General Residential zone and the development is permissible. The Zone R1 objectives relevantly include: 1. To provide for the housing needs of the community. 2. To provide for a variety of housing types and densities. 3. To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas. 4. To provide landscaped areas for the use and enjoyment of existing and future resident. 5. To protect and enhance the amenity of existing and future residents and the neighbourhood. 6. … 1. Leichhardt DCP 2013 (LDCP 2013); under which the sites are in the Helsarmel Distinctive Neighbourhood. 1. Section C1.11of the DCP deals with parking on the basis that the municipality will face significant parking demands and that "the location, design and treatment of these areas have a major impact on the streetscape and will need to be carefully considered." Insofar as the General Objectives seek to reduce reliance on the car by various means, the associated urban design objectives include: 06 To accommodate on-site parking that is safe, accessible, well laid out and appropriately lit. 07… 08 The impact of car parking areas on the urban fabric of the neighbourhood should be minimised. 09 To design parking for all appropriate transport modes on private properties so that it will reinforce the quality and integrity of streetscapes, the layout, the siting and use of neighbouring buildings, as well as the subject site and building design and will not detract from the amenity of adjoining areas. 10 To ensure the design and construction of vehicle parking, service and delivery areas and loading facilities minimises visual and amenity impacts that can be caused by traffic movements and parked vehicles. … 1. Section C3 states: C3 In the event that established parking areas located at the front of a property are proposed to be altered, or in the instance that new parking areas are sought to be located at the front, consideration will be given to the reasonableness of the parking location based on the general pattern of development within the streetscape, the constraints of the site, the desired future character of the neighbourhood and if a the design is of high quality, b the development proposes quality materials, c the development includes tree planting, and d the development includes lighting and appropriate boundary treatments to reinforce the legibility of the area Note For residential development, refer below to heading Residential Development within this section of the Development Control Plan for further controls 1. Also relevant are the following sections: C4 On-site parking areas must be designed and constructed to ensure that the movements of pedestrians and cyclists are properly accommodated, and that the safety and accessibility of disabled people is not compromised C5 In any instance where Council permits a new vehicle cross over, only one (1) single width vehicle crossover will be permitted for individual dwellings In some circumstances, with regard to the desired future character, or heritage significance of an area, vehicle crossings will not be supported Note Exceptions will be considered in certain circumstances for residential flat buildings or for commercial/industrial situations, following consideration of the urban character of the neighbourhood C48 Where no rear lane or secondary road access is available, vehicle parking maybe provided from the primary street frontage when: a. It is located wholly behind the front wall of the main building of the dwelling; b. has a single width parking space only; c. has one access point per dwelling; d. has a maximum vehicle crossing and parking space width less than 50% of the width of the front elevation of the main building on the site; and e. is subordinate to the main building. 1. The site is located within the Helsarmel Distinctive Neighbourhood where the existing character is described as having small lots subdivided during the 1880's economic boom giving the streetscape coherence by its regular grid pattern However, development was slow and continued well into the 20th century 2. Within the existing character there is a predominant low scale character and consistency of residential form in the majority of Helsarmel Distinctive Neighbourhood This development is in the form of detached, single storey cottages on small lots, demonstrating a variety of architectural styles and building materials Many of these dwellings are Federation or post-war styles, with scattered examples of California Bungalows and workers' cottages These dwellings reflect the consistent and regular allotment pattern found on such streets as James Street, Charles Street and Elswick Street North 3. The character of the Helsarmel Distinctive Neighbourhood is heavily influenced by the regular road pattern and subdivision layout. The streets are mostly wide and tree-lined, with a strong residential character. … 4. The desired future character is to be achieved via the following controls: C1 Maintain the character of the Helsarmel Distinctive Neighbourhood by keeping development complementary in architectural style, form and materials. C1 Maintain and enhance the predominant low scale 'cottage' character of the residential streets. C2 Preserve and enhance the weatherboard cottages and California Bungalows scattered throughout Helsarmel Distinctive Neighbourhood C3 Preserve the consistency of the subdivision pattern in this area C4 ... C5 Maintain the prevalence of street trees in addition to mature and visually significant trees on private land. C6 Encourage street tree planting throughout Helsarmel Distinctive Neighbourhood. C7 Encourage and enhance landscaping in the front building setback throughout Helsarmel Distinctive Neighbourhood. …. The evidence 1. Detailed evidence was presented by: 1. Mr B McDonald (Ex 2); consulting architect/planner for council 2. Mr J Lovell (Ex F); consulting planner for the applicant. 1. Insofar as the main issues concern the impact on the streetscape and character of the area, both planners undertook individual assessments of the existing development context of North Street. 2. According to Mr Lovell's assessment, the neighbourhood is characterised by an eclectic mix of land uses, building forms, architectural styles, materials and finishes. The landscape treatment in North Street is notable for the lack of any consistent building line and the diversity of fences/walls and in terms of parking, North Street contains a mix of no off street parking, basement parking, elevated parking, garages to the front and rear of buildings, carports and open stand parking spaces. Of 46 lots, his evidence is that 22 (or 48%) contain some form of on-site parking. In his opinion the provision of parking in the manner proposed is consistent with the streetscape and character of the area. 3. Mr Lovell recognises that the DCP controls express a preference for any parking to be located behind the building line but says that provisions are included to allow parking in the front of properties subject to: 1. reasonableness having regard to the general pattern of development within the streetscape, 2. the constraints of the site, 3. the desired future character of the neighbourhood, 4. design quality, 5. the inclusion of tree planting, 6. lighting to reinforce legibility 7. maintaining single width parking and one access point per dwelling only with a maximum width less than 50% of the building elevation; 8. being subordinate to the building 1. Accordingly he considers the discretion available should be exercised to allow the proposed crossings for the following reasons: 1. The development conforms with the eclectic mix of land uses, building forms, materials, finishes, landscape treatments and parking arrangements. The parking arrangement will not disrupt any clearly defined streetscape element or pattern or introduce a form of parking that does not already exist; 2. The lots are constrained by their width, with no opportunity to park at the rear ; 3. Relevant desired future character objectives for the Helsarmel Distinctive Neighbourhood are to maintain the prevalence of street trees, encourage street planting and encourage and enhance landscaping in the front building setback. The development does not involve removal of street trees. Street trees in North Street are of limited quality, randomly spaces and restrict pedestrian access, nonetheless a street tree could be planted if desired. Landscaping in the front setback could be enhanced by planting tree/s and supplementary shrubs/groundcovers resulting in a greater quantify and quality of landscaping than the majority of North Street properties. The development therefore conforms to the desired future character; 4. Materials are limited to concrete wheel strips and do not include carports, pergolas or awnings which could potentially affect the streetscape; 5. Tree planting is recommended; 6. No lighting is required and legibility is not affected; 7. The spaces are single width with a single access point of approximately 50% of the elevation; and 8. The spaces are subordinate to the building. 1. Mr McDonald also undertook a detailed analysis of the off street parking in North Street as summarised in Exhibit 7. However he makes the distinction that the critical issue is not how many properties have off street parking, but how many properties have off street parking forward of the building line. He also considers it reasonable to differentiate the parking arrangements for some of the older commercial and industrial properties in North Street from the residential properties, some of which have redevelopment potential. 2. His assessment is that of the 31 dwellings in North Street (even numbers), 8 have a garage at or behind the building line, mainly in the rear yard. On the opposite side (odd numbers) there are 32 dwellings of which 11 have garages that are in front of the building line, at the building line, or behind the building line. In only two cases are there approved garages or car spaces forward of the building line and these are apparently a result of old approvals approved in 1957 and 1971. 3. Based on his assessment of the existing streetscape and the prevailing controls, Mr McDonald does not support the current proposal because: 1. The proposed car parking spaces are contrary to the existing and desired future character of the streetscape in the Helsarmel Distinctive Neighbourhood and specifically in North Street, because parking in front of the building lines is not the predominant pattern at present and the desired future character is to maintain and enhance this character with front gardens and front fences 2. There appears to be no serious attempt to undertake a proper site and context analysis that would justify parking in front of the dwelling houses as proposed 3. Setting aside the shops that have frontages to Allen Street, eight (8) properties have off street parking arrangements that can be described as forward of the front building line or impinging over the front building line. The analysis of the development history involving driveways in North Street (prepared by Council officers) and zoning history map showing previous light industrial zones at Appendix 1 demonstrate that existing cross overs and parking forward of the building line pre date current planning controls. 4. The proposed car spaces forward of the existing building line at 14 and 16 North Street would have a detrimental impact on the streetscape by denying the opportunity to provide attractively landscaped front gardens behind a conventional low fence and gate. The appearance of parked cars forward of the dwellings, occupying more than half the frontage, would be visually intrusive and out of character with the existing and desired future streetscape quality. 5. With regard to Section 79C(1)(b) the proposed parking would have an unacceptable visual impact in a streetscape where parking forward of the front building line is the exception and would also create potential risk due to the poor sight lines that would be available at the gates and between parked cars in the street. 6. With regard to Section 79C(1)(c) the existing sites at 6095 mm width are too narrow to accommodate off street parking bays leaving adequate space for a landscaped front garden and the 6000mm depth of the front building setback does not allow sufficient room for inward swinging gates and a parked car, Therefore the site is unsuitable for the proposed development. 7. With regard to Section 79C(1)(e) the public interest is not served by the proposal's detrimental visual impact on the existing and future streetscape character and the potential conflict with pedestrian and vehicular movements. 1. With reference to the Helsarmel Distinctive Neighbourhood statement, Mr McDonald says that nowhere in any of the descriptions of the existing character and in the controls is there anything that says parking in front of houses is a characteristic element or a desired future outcome. However s3 3 4 of the DCP establishes the historic small lot subdivision pattern as the underlying influence on the scale and character of residential development Following from this established lot pattern is the historic pattern of landscaped front gardens and street trees referred to repeatedly in Part C2 2 3 4. The proposed parking in front of the existing dwelling houses is the antithesis of what the development controls seek to protect and enhance, in his opinion. Conclusion 1. For the determination of this matter I have carefully considered the evidence, submissions and information obtained at the view. Insofar as a considerable number of particularised contentions were identified, it appears to me that the main issue concerns the impact on the character of the local area and streetscape that would arise if the two footpath crossings and associated hard stand areas were approved totally within the front building line setback area. 2. I have initially considered the general Zone R1 objectives and note that a relevant matter concerns whether the proposal adequately protects and enhances the amenity of existing and future residents in the neighbourhood and also whether the proposed landscaping areas are satisfactory for the enjoyment of existing and future residents. 3. More detailed controls are contained in the DCP wherein section C1.11 deals with car parking. Interestingly, the controls do not prescribe a requirement for on – site car parking in this district. Instead there is a preference to reduce car dependency and the associated urban design controls seek to minimise the impact of car parking on the urban fabric. 4. In this regard I have considered Mr McFadzean's references about specific parking considerations and landscaping in other local districts within the overall municipality. However I consider it reasonable to give diminished weight to the characteristics of other districts and instead determining weight should be given to the DCP provision for the subject Helsarmel Neighbourhood. 5. In order to apply the overall set of controls to the subject application, I initially accept that there is an eclectic form of detached dwellings and other past industrial and commercial uses in North Street. It is apparent to me that car parking within the front setback area is not a common feature and in the relatively few places where it can occur, that is in situations that were probably approved many years ago, certainly prior to the DCP 2013 controls. In these circumstances I give diminished weight to the few considerably older footpath crossings and on-site parking as a precedent for new development. 6. Notwithstanding this, it seems to me that there is a further distinction between the subject land and those older existing developments in terms of the lot widths. The subject lots are in the order of 6m wide whereas the older lots have frontages predominantly exceeding 9m. Also there is a noticeably greater separation between on-site hard stand areas at the existing dwellings. 7. However in the subject application, the proposed individual footpath crossings and associated hard stand areas are in the order of 2.9m wide and separated by about 5m, which includes 2 x 1m wide footpaths, common boundary fence and low landscaping. As the streetscape impact is assessed assuming vehicles on the hard stand areas, it seems to me that there would be a greater concentration of built form over natural/landscape form, which is not consistent with the existing or desired future character of the area. 8. In the circumstances that Control C48 may be applied to allow parking from the street frontage, the control requires the vehicle parking to be located wholly behind the front wall of the main building of the dwelling, as shown in the following figure. However, I consider the proposal presents as a Case 2 and is not compliant. Figure C3 1. A further component of the streetscape and character of the area concerns landscaping. In my assessment the existing residential developments are enhanced by various landscaping forms. Consequently, I am not satisfied that the area remaining for landscaping after the car parking and access arrangements, would be able to make a satisfactory contribution to the protection and enhancement of the landscaping amenity. This is notwithstanding the offer during the appeal to plant a larger canopy tree somewhere in the area between the two hard stand areas. In the absence of more specific details, I have concerns about its prospects of achieving effective maturity because of its position near the separate pathways. I consider the landscaping associated with the hard stand areas does not reasonably satisfy the DCP controls and this is a negative aspect of the proposal. 2. The contentions also included an engineering issue that the approval of the 2 crossings would effectively result in the loss of 2 on –street car spaces. In this regard I accept Mr Bonano's submissions that there is high demand for car spaces in the street and that the associated public interest in allowing competition for available spaces would be diminished due to the 2 private crossings. In this regard I understand that the original lots had parking access but the conditions of consent explicitly required the 2 redundant vehicle crossings to be closed and sandstone kerb and gutter to constructed across the entire frontage of the property. These conditions were apparently accepted to enable the subdivision to be finally approved. 3. This proposal then to effectively reinstate the 2 crossings is part of Council's contention that the proposal represents "development by creep." I have considered the evidence presented to the Court in various documents and submissions and it is apparent that there has been an unfortunate process leading up to the subject development application, which could not be considered orderly. 4. However the various steps following the subdivision indicated that if that road access and on-site parking was required then careful consideration of the prevailing controls would be required to achieve this. The original CDC included on-site parking but was surrendered. In the circumstances where 2 on –site car parking spaces are now sought, Mr McDonald said that it could be possible for a skilful design to incorporate these car spaces in a complying manner in a different design. But the current application does not achieve this. 5. Accordingly, I do not consider it reasonable to exercise any discretion to effectively set aside the DCP controls which seek to restrict vehicle parking in the front setback areas and instead encourage complimentary landscaping to protect and enhance the streetscape amenity. I rely on the opinion of Mr McDonald that the proposed hard stand areas do not merit consent because: 1. The narrowness of the sites significantly limits the ability of vehicle on each to be effectively screened by landscaping as required by the development controls and blend in with the character of the area, and 2. Notwithstanding the proposed landscaping, the approval of the car spaces would be contrary to the intent of the DCP controls and such approval would detract rather than enhance the streetscape and character of the area. 1. Mr Bonano also referred to a number of previous cases involving similar issues. Firstly, the matter of Sue Higgins v Leichhardt Municipal Council [2004] NSWLEC 103, which concerned building alterations and provision of on- site car parking and access over the footpath to a property in Balmain. In that matter, I refused the application and stated that: 22 On balance then, I am inclined to accept Ms Gordon's evidence that this proposal would most probably result in the loss of one on-street parking space due to the requirement for the new 4.3 m kerb opening. In these circumstances it seems reasonable to me to adopt the A.S. provisions for a minimum 6 m bay as a reasonable standard, considering the competition for these spaces and tendency to "squeeze" in cars at peak times. If a more conservative approach was taken in the interests of public safety and convenience, then it would be desirable to allow 8 m bays, considering the demand and turnover for these limited on-site carparking spaces, which confirms the loss of at least one space. 23. Accordingly I do not consider this proposal satisfies the DCP requirement in s B13 because the vehicular crossing will most probably result in the reduction of one on-street carparking space in a location where this is in high demand. I also note from the council officer's assessment report that over recent times the owners of this property have consistently been informed that direct access onto Curtis Road would not be permitted. In my opinion then there was no compelling evidence to demonstrate this policy should be disregarded in this case 1. In the matter of Jacob v Leichhardt Municipal Council [2014] NSWLEC 1140, an application was made for a single open car space and front fence at Balmain. Commissioner Tuor refused that application and stated: 21 The site is narrow but this results in the presence of a car in the front setback area being potentially more dominant than it would be on a wider site, particularly if the car could be parked to the side of the dwelling. I acknowledge that the site has no on street parking and consequently there would be no net loss. Rather by providing a car space on site there would be one less car seeking parking in an area with a limited supply. The provision of on site parking would provide significant amenity to the owners of the dwelling and is supported by other residents. However, I do not accept that these positive aspects and the considered design of the development out way the concerns raised by Mr McDonald about the visual impact of a parked car in a small front garden in front of the dwelling. 22 Similarly the eclectic mix and transitional nature of the context does not justify a variation to the controls. The site is in a prominent location near the corner of Darling Street and the dwelling with a parked car would be visible from the opposite side of Curtis Road and Darling Street. The car park areas and their driveways on the adjoining properties, particularly the two spaces at 215A Darling Street, have a negative impact on the streetscape and are not sought to be emulated by the planning controls. While the proposal is clearly a significantly better design, an additional car parked in front of the dwelling would further impact on the street and the HCA. There are few other examples of car spaces in front of dwellings in Curtis Road, and those that exist were approved under earlier controls or form part of a recent dwelling. 23 The characteristics of the area and the constraints of the site do not justify the proposal which does not meet the control or the principles in Part B 1.3 of the DCP and will have an adverse impact on the HCA 1. These cases, together with the other references indicate that determining weight has consistently been given to the prevailing controls unless extraordinary circumstances are demonstrated. For the aforementioned reasons, I do not consider there were reasonable circumstances identified in the subject matter to effectively set aside the DCP controls. 2. In summary then, I do not consider these applications merit consent because they do not reasonably satisfy the DCP provisions that seek to restrict on – site parking forward of the building line in the subject area. Even though Section C3 allows some discretion, I am not satisfied it should be exercised in this matter because of the narrow width of the subject lots, which significantly restricts the provision of landscaping. Any such approval would offend the public interest controls that seek compatibility with the neighbourhood and enhancement of landscaping in the front setback areas, which these proposals do not achieve in my assessment, which consistent with Mr McDonald's evidence on which I rely. Court Orders: 1. The Court makes the following orders: 1. The appeals No 10660 of 2015 and No 10661 of 2015 are dismissed. 2. Development Application No D/2015/94 for construction of a hard stand parking space and vehicular gates at 14 North Street, Leichhardt is refused. 3. Development Application No2015/95 for the construction of a hardstand parking space and vehicular gates at 16 North Street, Leichhardt is refused 4. The exhibits may be returned except for 1, 2, 7, A, B, E and F. R Hussey Acting Commissioner ********** 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 November 2015