Land and Environment Court New South Wales Medium Neutral Citation: Bellenger & anor v Randwick City Council [2016] NSWLEC 1279 Hearing dates: 15 June 2016 Date of orders: 05 July 2016 Decision date: 05 July 2016 Jurisdiction: Class 1 Before: Hussey AC Decision: (1) The appeal is dismissed. (2) Development consent to DA/810/2015 for alterations to the front of the dwelling at 43 Greville Street, Clovelly to allow construction of a hardstand area is refused. (3) The exhibits may be returned except 1, 3, 6, 7 and A. Catchwords: Development application: Provision of a new hardstand car space within the front setback area, inconsistent with character of the area, inadequate length, non- compliance with relevant controls and standards, precedent and loss of on-street parking space. Legislation Cited: Environmental Planning and Assessment Act 1979 Randwick LEP 2012; Randwick DCP 2013 Cases Cited: Defterios v Woollahra Municipal Council [2007] NSWLEC 434 Deguara v Waverley Council [2012] NSWLEC 1305 Category: Principal judgment Parties: Christopher Raymond Bellenger (First Applicant) Janice Merle Bellenger (Second Applicant) Randwick City Council (Respondent) Representation: Counsel: Mr J Rafferty (Applicant) Solicitors: Mr R Tong, WB Scott and Tong Solicitors (Applicant) Ms V McGrath, Norton Rose Fulbright Australia (Respondent) File Number(s): 155403 of 2016 Judgment Background 1. This appeal was lodged against council's refusal of a development application to demolish part of the front verandah and masonary fence at 43 Greville Street, Clovelly to enable the construction of a hardstand car space within the front setback area. The subject site has an area of 221.3 sqm and a frontage of 6.22m and it is part of a semi-detached dwelling adjoining 43A Greville Street. The front elevation is setback in the order of 4.8m from the road boundary. 2. A number of contentions were identified which are summarised as follows: 1. The proposal is inconsistent with the zone objectives, 2. Inadequate car space dimensions, in terms of the RDCP and AS 2890.1 – Design of Parking Modules provisions, 3. Loss of on-street parking. The proposal 1. The proposal includes: * Demolition of the front verandah and its balustrade, while retaining all masonry structural piers and original decorative timber trimmings. * Demolition of a portion of masonry front fence in between the 2 main brick piers * Provision of a car stand within the front setback with dimensions of 3m wide x 4.72m long and comprising of a pattern of pavers in between grass and ground cover. This is intended to minimise the impermeable surface and maximise the landscaped appearance of the garden. * Retain pedestrian entry to front door and replace existing paving with new. * Replace existing pedestrian gates of the same size with timber pickets. * Replace side passage gates of the same size with timber pickets. * Replace existing landscaping with new planting on either side of the parking space. * Demolish existing crossing that does not align with any functioning driveway, and replace with a new crossing in-line with the proposed new car space. * Relocate power pole on front verge to provide clear access into the driveway: subject to utility authority approval. Planning controls 1. The following controls apply: 1. Environmental Planning and Assessment Act 1979, and the associated Environmental Planning and Assessment Regulation 2000 2. Randwick LEP 2012; under which the site is within the R2 Low Density Residential Zone. . Clause 2.3(2) of the RLEP 2012 states: "(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone." The objectives for the R2 Low Density Residential Zone in the Land Use Table in RLEP 2012 are: " 1 Objectives of zone ● To provide for the housing needs of the community within a low density residential environment. ● To enable other land uses that provide facilities or services to meet the day to day needs of residents. ● To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area. ● To protect the amenity of residents. ● To encourage housing affordability. ● To enable small-scale business uses in existing commercial buildings. 1. Randwick DCP 2013; contains detailed controls in Clause 6.1 – Location of Parking Facilities and Clause 6.7 – Hardstand Car Space Configuration of part C1 – Low density residential. The fourth objective of Clause 6 of the RDCP 2013 is: "To ensure the location and design of parking and access facilities do not pose undue safety risks on building occupants and pedestrians." Clause 6.7 ii) requires that "a hardstand car space must have minimum dimensions of 2.4m x 5.4m". Clause 3.6 Car park location and design, streetscape and heritage of Part B7 - Transport, Traffic, Parking and Access under the RDCP 2013 also applies and Clause 3.6 i) requires development to "Minimise the loss of existing on-street parking supply by: a. Careful location of crossings and laybacks b. Tapering the driveway at the property boundary c. Amalgamating driveway crossings with adjoining property where possible d. Considering the overall streetscape, continuity of footpaths and the need for safe pedestrian movement." 1. Australian Standard AS 2890.1 is referred to in the RDCP and it provides in Clause 2.4.1 - Angle parking spaces • "Length The nominal length of a parking space in a parking module shall be 5.4 min except as follows: iii) Spaces for small cars. In certain circumstances it may be appropriate to provide a space smaller than specified above for small cars. It shall be designated as a space for small cars. The minimum dimensions shall be as follows: In Australia - 2.3m wide x 5.0m long" The evidence 1. Evidence in this matter was given by: * Mr G Higgins; Council's consulting traffic engineer, * Mr P Brennan; Applicant's consulting planner. * Neighbours also gave evidence supporting the proposal. 1. The consultant's evidence was presented in a Joint Expert report (Ex 3). This report addressed the contentions and involved an assessment of similar hardstands in the neighbourhood. Mr Higgin's primary position is that the proposed car space is deficient in length and accordingly he does not support its approval. His opinion is that where there is a car space provided with a length below the 5.4m specified in the RDCP and AS 2890.1, there is a high probability of a car not utilising the space as intended and unsafe parking outcomes are likely. 2. Against this, Mr Brennan says that there many other hardstands and off-street parking arrangements in the vicinity of the subject land that do not meet the RDCP and AS 2890.1 provisions. Based on his extensive planning experience in the area, he is not aware of any safety or amenity issues occasioned by these situations. He supports the proposal notwithstanding its minor deficiency in length because any consent can be conditioned to only allow a small car to use the hardstand. 3. However the contentions contain detailed particulars and in reference to the car space dimensions contention, cll 6.1 and 6.7 of the RDCP are cited. Clause 6.7: (ii) requires a hardstand to have minimum dimensions of 2.4m x 5.4m. This is consistent with cl 3.7, which states: i) An off-street car space must be a minimum of 2.4m by 5.4m long and comply with AS 2890.1 1. Insofar as these development controls require a minimum length of 5.4m, this is to achieve consistency with the provisions of AS 2890.1, which provides standards for off-street parking. This Australian Standard contains a discussion about the evolution of different sizes of vehicle and associated requirements for parking. It refers to the large vehicle as the B99 (99.8 percentile vehicle) that currently requires a parking length of 5.4m. 2. The experts discussed the relative size of vehicles in terms of where exceptions to the standards may be allowed. Mr Brennan referred to a number of non – complying hardstands in the neighbourhood and said that cl A6 of the Standard refers to the length of the 50th percentile vehicle as the medium car category with an increasing number of smaller vehicles that have a representative length of 4450mm and width of 1700mm. As the subject property owners intend to purchase a small car, then Mr Brennan supports the conditional approval of the application on the aforementioned basis. 3. I accept the proposition that in recent times there has been a noticeable a change in the length of other smaller vehicles. Consequently, AS 2890.1 recognises this and states A6.1: "With the size of most vehicles that are now in the small car category being close to the size of the 50th percentile vehicle that was used in the previous editions of this Standard, the light car category should now be used as the basis of the small car space. The representative dimensions of the light car are a length of 4450 mm and a width of 1700 mm. The length is the same as that of the previous 50th percentile vehicle and the width is 40 mm wider. No change to the minimum specified dimension for a small car space" 1. In response to Mr Brennan's position, Mr Higgins accepted that in the circumstances discretion could be exercised in the application of the 5.4m DCP controls but his opinion is that the minimum hardstand length should be 5.0m as maintained for a small car in AS 2890.1. He says that the application of the small car space dimension is more usually applied in larger developments containing multiple car spaces, where the majority of spaces have a minimum length of 5.4m and the smaller spaces are clearly sign posted. Furthermore he says that such smaller spaces are sub optimal and are generally only acceptable where other regular spaces are available. 2. Accordingly, he does not support the proposed 4.72mm hard stand because: * It does not satisfy the AS 2890.1 requirement for a minimum length of 5m for a small vehicle. * There is a high probability of a parked vehicle regularly overhanging the property boundary and partially blocking the footpath or a vehicle forgoing the use of the space as being impractically small and instead parking on the driveway in the footpath, as is common practice with neighbouring developments. * This problem is likely to be exacerbated with the parking of larger service vehicles or visitors due to the limited availability of on - street car spaces. * As the subject property is located opposite the school and future preschool there is likely to be a significant volume of pedestrians using the footpath and any vehicle partially blocking the path would likely create an impediment to the general public, particularly members using prams and wheelchairs. * Reversing vehicles from the hardstand area will be immediately reversing across the footpath, with no forewarning of the reversing movement for passing pedestrians, which results in unnecessarily dangerous outcome, particularly in an area with a high volume of small children using the footpath. 1. Against this, Mr Brennan says that in his experience there is no evidence to support the notion that a car overhanging the footpath poses undue safety risk to pedestrians. Instead he considers that if the property owners are given the opportunity to acquire a smaller car that will fit inside the property and the small space is clearly designated and wheel stops installed and conditioned for only small car use, then there will be a satisfactory outcome that is consistent with the other existing crossings/hardstands in the area. 2. Mr Higgins noted his observations of several nearby vehicles not utilising their undersized off street parking spaces and parking illegally across the footpath. He says that it is not practical for Council to enforce an infraction every time the footway is obstructed as a result of a misjudged parking manoeuvre or a vehicle parking on the driveway. In his opinion there is a need to adhere to sound traffic design principles when planning new developments, as opposed to the continuation of poor unsafe practices seen within the neighbourhood. 3. In regard to the issue of on –street parking , Mr Higgings is concerned with: * The current parking arrangement along the frontage of 43 Greville Street permits unrestricted parking for a single car. * The provision of a driveway in this location will have the practical effect of removing this compliant space from the benefit of use by the wider public, instead reserving its use by the residents of No 43 ,albeit in a compromised arrangement * According to the Environmental Effects (Issue C - Nov 2015) accompanying the development application, it states the 'entire street is parked out' during school pick up and drop off period and that this situation is 'likely to worsen' once an approved preschool on the corner of Greville and Arden Streets is operational. Indeed this section of the report states the situation is exacerbated as 'all other properties on the street have off-street parking, and so potential spots are taken up by driveway crossings'. * As implied by the Statement of Environmental Effects the effect of adding an additional driveway crossing will be to further exacerbate this problem, at a time when additional on-street parking is likely to be required, due to the approval of the aforementioned childcare centre. * The frontage of number 43 Greville Street will no longer be able to be used by the public, even when the residents of number 43 are away and do not require it. In my view, the private needs of a single dwelling occupant should not override the wider public Interest. 1. But Mr Brennan says that the proposed loss of one on street car parking space is off set by the creation of one off street car parking space. The proposal is therefore neutral in relation to the loss of parking, i.e it causes no parking space loss. 2. In his assessment, Greville Street does not have a hiqh demand for on street parking other than at drop off (am) and pick up (pm) of school children and there is no apparent evidence of parking stress in the street. Other than the drop off and pickup of school children, Greville Street is not a highly visited location. The school has a designated pick up and drop off zone in Arden Street. Even though there may be an increase in demand for off street parking with the future operation of the Childcare Centre (pickup and drop off). There are no parking restrictions in the street or residential car parking schemes. The proposal does not impact the availability of parking on the street as the resident's car would usually be parked on the street. Conclusion 1. Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent. Part of the Applicant's case relies on the precedence of a number of similar non – complying hardstands in the surrounding area, including Greville Street. However, the submissions for Council acknowledged the existence of several existing hardstands, many of which have never been approved by Council or they were approved before RDCP 2013 came into effect.. 2. In acknowledging these crossings/hardstands, the RDCP was adopted in 2013 and the Council assessment report in Ex 2 states: "Further to the consistent advice provided by Council since 2008, it is considered that the controls relating to hardstand spaces within the RDCP 2013 have been consistently applied to development applications. Council has recognised the particular site constraints that commonly exist within the LGA for hardstand spaces for semi-detached dwellings. As shown in the referral from Council's Development Engineer, on the 24th July 2007 Council passed Mayoral Minute No 70/2007 whereby all current and future development applications shall be assessed with regard to the minimum small car requirements of the Australian Standards or 5 metres in length, whichever is the lesser." 1. Accordingly, I give little weight to the Applicant's referral to other non –complying, not approved hardstands and instead give determining weight to the RDCP 2013 provisions, on the basis that they have been consistently applied and they represent the changing desired future character of the area. Consequently, considering the minimum length hardstand it is then apparent that in some circumstances it may be an unreasonable expectation for a property owner that a hardstand area with a length less that 5m would be acceptable. Whilst the experts agreed that a 5m long hardstand could be appropriate in the circumstances, the proposal is deficient and the Applicant has been unable to consider alternatives. 2. Considering the merits, I rely on Mr Higgins engineering evidence that there is a strong likelihood of the on –site parking encroaching onto the footpath area, which would reduce the road and footpath safety. I think this would be an undesirable outcome in this street where there appears to be significant competition for on- street parking and footpath use to access the school and most likely the future preschool. This is notwithstanding references to other traffic consultant's information that was discussed. 3. With regard to the loss of one on – street car parking space, my assessment of the competing private and public interest considerations is the that there would be an unreasonable loss of public interest benefit because whilst the existing on –street space may be used by the Applicant, nevertheless it is available for the general public when vacant. Whilst the Applicant intends to remove the redundant driveway to No 43, this according to Mr Brennan " whilst not providing for the reinstatement of an on street car parking space will allow for the reinstatement of an equivalent amount of grassed nature strip". Overall, I do not consider this a positive public interest outcome. 4. By reference to RLEP 2012 I understand that this site is within the Zone R2 Low Density Residential Zone and I have considered the zone objectives of which the following is relevant: To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area. 1. In this regard the subject property is the only semi-detached dwelling in the street and the adjoining semi has a non – complying hardstand. Whilst there are other detached dwellings that have some forms of off –street parking, I consider that the approval of this proposal for a non –complying hardstand that would presumably be noticeably marked for small car parking only, would not be one of the desirable elements of the streetscape and that it would likely introduce additional safety issues and have a negative impacts on the streetscape and amenity of residents as stated by Mr Higgins. 2. The RDCP controls in cl 3.6 requires consideration of the overall streetscape, continuity of footpaths and the need for safe pedestrian movement together with ensuring that pedestrian and cycling safety is maintained or improved. Based on Mr Higgins opinion on which I rely, I consider the pedestrian safety will be compromised rather than maintained or improved and this contributes to the proposals refusal. 3. The RDCP objectives in Cl 6 (C1) include that the location of parking/access facilities do not pose undue safety risks to occupants and pedestrians or adverse impacts on the amenity of neighbouring properties. Based on the foregoing evidence, I do not consider these objectives are reasonably satisfied in this case as stated by Mr Higgins. 4. In this regard, I have carefully considered the Applicant's proposal to acquire a smaller car and accept a condition restricting on-site parking to only small cars that have a length of no greater than 4.6m with the condition running with the land binding future residents. Also a s88E convenant could be placed on the property limiting the use of the car space to small vehicles of less than 4.6m long. 5. Whilst I accept that there is an expectation that residents will comply with all conditions of consent, I am not satisfied that this is a reasonable condition to impose in the subject circumstances. Under the current planning controls, including the RDCP 2013, Randwick Council has not elected to approve of any undersized hardstand spaces, in a manner proposed by the Applicant (i.e. conditioning the use of an undersized hardstand or requiring s88E convenant to restrict parking to a small vehicle). 6. In the circumstances the Court accepts the Council's submissions that it is not in the public interest to set such a precent in this locality. The approval of other similar developments under different planning controls is not a basis for approval of this application as it sets an unacceptable precedent for other developments in the area. 7. Furthermore, whilst I accept it is legally possible to impose such a condition and restrictions on title, on the evidence before me I do not consider this would result in a reasonable planning outcome. I do not consider the imposition of the suggested conditions addresses the fundamental constraints of the site, particularly the restricted setback of the dwelling, which then restricts the available parking hardstand area. The experts addressed the situation where a vehicle could protrude into the footpath area with Mr Higgins expressing concerns about safety and Mr Brennan saying that there is no evidence to support the notion that a car overhanging the footpath poses undue safety risks. 8. In the subject context, with the neighbouring school and future pre – school, I consider a cautious approach to parking is reasonable and therefore I am satisfied to rely on Mr Higgins engineering opinion which is consistent with car parking objectives to ensure that car parking doesn't pose an undue safety risk to pedestrians. 9. Insofar as reference was made to the determination of other similar matters, including Defterios v Woollahra Municipal Council [2007] NSWLEC 434 and Deguara v Waverley Council [2012] NSWLEC 1305, I give these little weight in the current matter because they relate to other local government areas and in my assessment determining weight should be given to the facts and circumstances by reference to the provisions of the relatively recent RLEP 2012 and RDCP 2013. On this basis and for the above reasons, I consider this proposal falls into the category stated in cl 3.6 of the RDCP, which notes that "in some cases, it may not be possible to provide off –street car parking" and accordingly I consider this application should be refused. Court orders 1. The Court orders that : 1. The appeal is dismissed. 2. Development consent to DA/810/2015 for alterations to the front of the dwelling at 43 Greville Street, Clovelly to allow construction of a hardstand area is refused. 3. The exhibits may be returned except 1, 3, 6, 7 and A. 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: 05 July 2016