Land and Environment Court New South Wales Medium Neutral Citation: Chulatunga v Randwick City Council [2018] NSWLEC 1348 Hearing dates: 02 July 2018 Date of orders: 10 July 2018 Decision date: 10 July 2018 Jurisdiction: Class 1 Before: Blakely AC Decision: The orders of the Court are: (1) The appeal is dismissed. (2) The Development Application No. 535/2017 to construct a carport at 43 Boronia Street, Kensington, is refused. (3) The exhibits are returned except for exhibits 1 and 2. Catchwords: DEVELOPMENT APPLICATION: carport, parking at front of dwelling, streetscape, neighbourhood character, visual amenity, structural design, site frontage, on property parking, landscaping, visual domination. Legislation Cited: Environmental Planning and Assessment Act 1979 The Randwick Development Control Plan 2013 The Randwick Environmental Plan 2012 Cases Cited: Zhang v Canterbury Council (2001) 115 LGERA 373 Category: Principal judgment Parties: Daluwatu Chulatunga (First Applicant) Tajma Chulatunga (Second Applicant) Randwick City Council (Respondent) Representation: Solicitors: Litigants in Person (Applicants) A Bowen, Eakin McCaffery Cox (Respondent) File Number(s): 2018/3441 Publication restriction: No Judgment 1. COMMISSIONER: Development Application No. 535/2017 for constructing a carport over the car parking area at front of 43 Boronia Street Kensington, City of Randwick. For the reasons listed below I have determined to refuse the application. 2. The council maintains, in their Statement of Facts and Contentions, that the application should be refused because: * the proposed structure is out of character for the immediate neighbourhood areas; * the design of the agreed upon submission (no.5) is visually dominant on the streetscape * the propose structure is out of character with the adjacent single-family homes of the same style, * inadequate site frontage; * inadequate landscaping; * poor articulation with the surrounding street amenity; * out of character. 1. The applicant provided several sets of plans to the Council for consideration. The Council refused all of the alternatives. For the purposes of this determination the Council and applicant agreed on Option 5 as the only plan to be used for the Court's deliberations. History and Site 1. This application seeks to construct a carport on the front of the single-family dwelling in the Kensington inner suburb adjacent to Anzac Parade. The immediate neighbourhood is proximate the coming light rail connecting this area with the central city. The area is well located and well-appointed with many urban attractions nearby including the Sydney Cricket Ground several parks and schools with bicycle access to downtown Sydney. The areas is undergoing rapid transition from single historic Federation and similar early 20th century attached and detached bungalows and small to midsize apartments along with other multifamily dwellings. The larger dwellings occupy the periphery of the area creating pockets of small single-family areas between and among the larger scale buildings. The single-family dwellings act as small island atolls between the larger masses creating pleasant view corridors to the City skyline with street canopies and solar access strips. 2. Whether intended as biophilic connectors or simple visual respites the small groups of homes give the area a soft appearance among the larger buildings that surround them. 3. It is in this environment that the Chulatunga family seeks to add a small addition to their frontage area of an early 20th century home. Their home is small and similar in character to the other homes (photo below). When the Chulatunga residence was constructed the automobile was not a central feature attached to houses. The only location available to place a vehicle off the street is in a small hard stand area directly in front of the south side of their dwelling. The Chulatungas made a request on 30 August 2017 to the Randwick Council for a carport for their vehicle to shelter it from the elements. The Chulatunga's approach to council under established procedures to ask permission to erect a carport or similar cover for their vehicle. 4. The proposal advanced by the Chulatungas was denied under delegated authority as it did not satisfy the intentions of the Randwick Local Environmental Plan of 2012 for these reasons. 5. "The proposed carport fails to satisfy the relevant objectives and development controls of Part C1 of the Randwick Comprehensive Development Control Plan 2013 in relation to Car Parking and Access and the proposed carport will detract from the appearance of the existing dwelling and the character of the streetscape". 6. The Randwick Council endorsed this denial on 16 December 2017. 7. Mr Chulatunga presented option 5 as the plan for consideration. The City accepted Option 5 of 5 as the plan for consideration and the Court gave leave on 2 July 2018 for Option 5 to be the single matter for consideration before the Court. Subject Property The Appeal 1. Mr and Mrs Chulatunga appealed the Council determination pursuant to s8.7 of the Environmental Planning and Assessment Act, 1979. On July 2, 2018 an s34AA case commenced with the site visit to the home at 43 Boronia. The applicant family and the Council's representatives and I conducted an onsite review of the site. The applicant indicated he would represent himself in the proceedings. The Council was represented by Ms Ann Maree Bowen Solicitor. Ms Bowen was assisted by two colleagues and a Council Planner. Mr Chulatunga indicated that he would act as representative for his family and he would have NO expert witnesses. (Schedule D) 2. Since Mr Chulatunga decided he would have no experts the Council experts in attendance did not speak nor were they invited to come and give evidence orally or in writing for the proceedings. The matter reached an immediate impasse at the site review. The matter was terminated and the parties adjourned to the Land and Environment Court for a Hearing. I set an additional hour aside for the parties to discuss the matter to ascertain whether there was any potential for conciliation prior to the proceedings commencing. This additional time bore no fruitful outcomes. 3. The parties agreed that each side would offer arguments on the central point that would stand as opening and concluding remarks with the option for countering questions or remarks. 4. Mr Chulatunga requested leave to present his sketch noted as option 5 in his submission as the document to be used for the deliberations. Ms Bowen accepted Option 5 and the Court gave leave for Option 5 plan 5 to be placed on record as plan under consideration. Character Test 1. The arguments regarding the carport relate to what the physical manifestation of the carport does for or against the micro character of the surrounding environment. The legal grounds rely on s4.5 of Land and Environment Act 1979 and the Randwick LEP s 4.3 and 4.4. The test of character arises from s 6.3 of the Council DCP which places limits on size and configuration of parking reflecting the visual impact of the structure and the design dominance any feature on the property detracts from visual amenity. 2. Ms Bowen speaking for the Council laid out significant rationale for the Council's position. 3. She enumerated the goals of the Council's DCP part 6 of the DCP C1 which provides: * The location, size and configuration of parking and vehicular access have significant implications on building design and the streetscape character; * Parking facilities should be properly integrated into the architecture of buildings and do not present as prominent, intrusive features; * The provision of any car parking in existing and infill development must be sensitive to the character of the buildings and streetscapes, noting that dwellings developed in the late 19th and early 20th centuries were not designed to accommodate private cars 1. Clause 6.1 of the DCP indicates there is a maximum of 1 vehicular access and if the width of the lot is less than 12m only single width carport facing the primary street is permitted. Eye of the Needle 1. Mr Chulatunga offers compelling arguments regarding his desire to make it small intrusion on the visual environment. He provides five alternatives that fit what he sees as the character of the community and the shelter needs he requires for his vehicle. In each alternative he recognizes the intentions of the Council to mimic the shape and size of his proposal to meet the character test laid out in the DCP. Clause 6.6 of the DCP requires that carports meet specific requirements with respect to be maximum width and length for parking areas. These DCP controls aim at. 2. a. ensuring car parking and access facilities do not visually dominate the property frontage or streetscape; and 3. b. ensuring parking facilities are integrated with the architectural expression of the dwelling as an integrated element. 4. To address these concerns Mr Chulatunga described how he took care to ensure that the space he would provide fit adequately into the only area where vehicle might be accommodated. The site is tight. It is difficult to fit the vehicle and carport within the narrow confines that the DCP allows. But. Mr Chulatunga showed several ways where he came close to meeting all the DCP options regarding roof, siding and other aspects that reduced visual intrusion on the streetscape and did not, from his viewpoint, alter or dominate the frontage of the house. 5. Mr Chulatunga described the surrounding environment in which he pointed out many deviations from the DCP in the proximity of his home. He also discussed in his presentation blank walls and other unappealing visual features that defy the Council intent. He argued his proposal does not detract but enhances the visual qualities of the locality. He submitted several photos reinforcing his position. These photos and related material were not taken in evidence since they could not be verified regarding the time of placement with regard to the DCP or regulatory controls that allowed them. Nor was it clear, that all the projects he presented were approved by the Council. 6. In sum, Mr Chulatunga expressed his intent to thread the needle of the very narrow possibilities within the DCP to meet Council requirements. Unfortunately his proposal failed to meet all Randwick LEP and DCP requirement. Findings 1. In addition to listening to the arguments, I also visited the surrounding area as I returned to Court to obtain a visual examination of the place in context. There is unevenness in the landscape and streetscape. However, the small intact islands of Federation and other homes offer soft visual relief and solar access as well as evening sky views that are important elements for the surrounding community. These small zones provide visual relief to an increasingly dense settlement pattern. Macro rules cannot be forged that ensure the pleasant uneven outcomes this landscape already has. The Chulatunga's are asking for a variation in this form. But there are no small interferences since every incursion into the character of single lot or home configurations alters the overall presentation of the street and the visual amenity. 2. The Council's LEP of 2012 and DCP provide ample guidance and congruity to support this denial which is reinforced by Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ at [75] raises three important propositions. First, although the Court has wide-ranging discretion, the discretion is not at large or unfettered. Second, a DCP are to be a fundamental element or a focal point in the decision-making process, particularly if there are no issues relating to compliance with the local environmental plan. Third, a provision in the DCP directly pertinent to the application may have significant weight in the decision-making process but it is not determinative. The third proposition provides for some flexibility in the enforcement of provisions in the DCP. 3. In this instance I find no flexible options. 4. The carport is not a requisite amenity and it would form visual dominance on the street and landscape that is unnecessary. Moreover, the proposed carport fails to meet DCP requirements. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. The Development Application No. 535/2017 to construct a carport at 43 Boronia Street, Kensington, is refused. 3. The exhibits are returned except for exhibits 1 and 2. ………………………. Edward Blakely Acting Commissioner of the Court Schedule D (33.9 KB, pdf) Plan 5 (97.8 KB, pdf) ********** 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: 10 July 2018