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Land and Environment Court
New South Wales

Medium Neutral Citation:
Double Happiness Company Pty Limited v Waverley Council [2014] NSWLEC 1225
Hearing dates:
30 October 2014
Decision date:
04 November 2014
Jurisdiction:
Class 1
Before:
O'Neill C
Decision:

1.The appeal is dismissed.

2.Development Application No. 484/2013 for alterations to an existing semi-detached dwelling to accommodate an on-site car parking space within the front setback is refused.

3.The exhibits, other than exhibits 2 and F, are returned.

Catchwords:
DEVELOPMENT APPLICATION: alterations and additions to an existing semi-detached dwelling; parking space within the front setback; streetscape impact; precedent; loss of on-street parking space.
Legislation Cited:
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Cases Cited:
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Category:
Principal judgment
Parties:
Double Happiness Company Pty Ltd (Applicant)
Waverley Council (Respondent)
Representation:
Ms S Duggan SC (Applicant)
Mr S Patterson Solicitor (Respondent)
Deutsch Miller (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):
10678 of 2014

Judgment

1COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 484/2013 for alterations to an existing semi-detached dwelling to accommodate an on-site car parking space within the front setback (the proposal) at 64 Plowman Street, North Bondi (the site) by Waverley Municipal Council (the Council).

2The appeal was subject to mandatory conciliation on 30 October 2014, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. As agreement was not reached during the conciliation phase, the conciliation conference was terminated, pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i).

Issues

3The Council's contentions in the matter can be summarised as:

  • There is inadequate setback between the existing dwelling and the front boundary to provide a suitable parking space;
  • The proposal results in unacceptable streetscape impacts;
  • The proposal results in the loss on an on-street parking space; and
  • The proposal will set an undesirable precedent.

The site and its context

4The site is on the eastern side of Plowman Street, close to the intersection of Plowman Street and Griffith Avenue. The site contains a semi-detached dwelling, in the Federation Bungalow style. The existing dwelling has a hipped roof, with a contemporary first floor addition located towards the rear of the site, but visible from the street and the face brick of the existing dwelling has been painted. The attached dwelling to the south of the site has a gable front facing the street and the face brick remains unpainted. The attached dwellings are not a mirror image of each other, instead the building appears as a free standing cottage in the Federation Bungalow style which, on closer inspection, is divided into two dwellings.

5The locality includes semi-detached dwellings and free standing dwellings on small sites, many with parking provided on-site, including parking spaces and carports in the front setback.

6North Bondi shopping village is to the south of the site, at the intersection of Plowman Street and Blair Street.

The proposal

7The proposal is to demolish the masonry balustrade, footing and floor of the front verandah, between the existing masonry verandah piers and retain the verandah piers, the stairs and landing to the front door and the verandah roof.

8The proposal is to remove a section of the front fence and pave the area below the verandah at natural ground level, and provide timber wheel tracks with grass over between the former verandah and the front boundary. The proposal retains the front pedestrian entry gate and paved pathway to the entry. The remainder of the front setback is to be soft landscaping.

9The distance between the front boundary and the façade of the dwelling, including the area under the verandah, is 5455mm (exhibit F).

Planning framework

10The site is zoned R2 Low Density Residential pursuant to Waverley Local Environment Plan 2012 (LEP 2012) and the proposal is permissible with consent. The objectives of the R2 zone are as follows:

· 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

11The proposal is subject to the provisions of the Waverley Development Control Plan 2012, Amendment 1 (DCP 2012). The proposal was lodged on 5 November 2013 and Amendment 2 of DCP 2012 came into effect on 8 January 2014. Amendment 2 of DCP 2012 contains a savings provision at Section 1.6, 'All applications received after the commencement date of an amendment to the DCP are subject to the DCP as amended'. The parties agreed that the relevant version of DCP 2012 is Amendment 1. The references to DCP 2012 in this judgment refer to the version identified as Amendment 1 (exhibit 1, tab 12).

12Part B, cl 7.4 of DCP 2012, 'Urban Design', relevantly includes the following:

The provision of parking should satisfy the parking demand for current and future residents but recognise the need to balance car parking access and urban design outcomes.
Objective
(a) To ensure the provision of off-street parking is subject to considerations of urban design, streetscape and heritage conservation.
Controls
(a) Where off street parking is not characteristic of the street, vehicular access from the street is not permitted.
(b) Properties which have two street frontages are only permitted to have one vehicular crossing to the secondary frontage only (eg the lane).
(c) Applications involving off-street parking spaces shall indicate in the site analysis how the proposal maximises the retention of on-street parking, pedestrian and cyclist amenity.
The site analysis must show a comparison between the current and proposed on-street parking and pedestrian and cyclist accessibility.
(d) Vehicular crossings should be provided from rear lanes where possible.
(e) Where only front access is available, car parking shall be provided behind the front building line, unless otherwise indicated in the controls within the DCP.
(f) Car parking and vehicular access must not dominate the streetscape. Landscaping is to be used to soften the impact of such structures/areas.
(g) Car parking and driveway design is to preserve mature and significant trees and vegetation on the site and in the surrounding streetscape.
(j) Entry gates and structures for car accommodation are to be of an open design to allow for improved security by way of street surveillance and reduce any impact on the streetscape.

13Part C, cl 1.10 of DCP 2012, relevantly includes the following:

Objectives
(a) To ensure that the design, location and size of off-street carparking areas do not unreasonably detract from the appearance and quality of the dwelling house or streetscape.
(d) To minimise loss of on-street parking.
Controls
(b) For alterations and addition to an existing dwelling, additional carparking is not required.
(c) Notwithstanding the above, Council may require a reduced rate or no parking in the following circumstances, where:
(i) parking may have a detrimental impact on the character of the streetscape;
(v) The access to the car-parking will result in the loss of more than 1 on-street car-parking space.
(d) All car accommodation must be sympathetic in architectural character to the dwelling.
(e) Car parking accommodation must not dominate or impact on the existing built or landscape character of the street.
No park of the street façade of a building is to be altered or demolished primarily to accommodate car accommodation unless it is sympathetically integrated into the design of the dwelling.
(j) For existing development, car spaces should e sited having regard to the following hierarchy:
(iv) hardstand car space forward of the building line.
(m) A hardstand or carport (in the form of wheel strips) forward of the building line may be permitted where:
(i)There is no rear access;
(ii) The site is of sufficient width where the car space will not dominate the existing building (i.e. does not exceed 45% of the width of the site frontage);
(iii) It is no greater than a single car space;
(iv) The distance between the building and the front property boundary is a minimum of 5.5m;
(vi) There is a predominance of this form of off street car parking in the immediate vicinity of the site;
(vii) It is designed so that it does not detract from the building and its landscape setting;
(ix) There is limited availability to public transport;
(x) There is a high availability of on-street parking in the immediate locality;
(xii) There is adequate bin storage other than on the hardstand.
(y) Existing on-street parking supply is protected by minimising impacts of additional vehicular kerb crossings.

Expert evidence

14Ms Kerry Gordon provided expert planning evidence for the Council and Mr Ross Fleming provided expert planning evidence for the applicant.

15The proposal was amended following the joint conferencing of the planning experts to retain the masonry verandah piers and other minor amendments.

16The planning experts agreed the proposal will result in the loss of one onstreet parking space.

17The parties disagreed on whether the proposal will create a precedent for future, similar applications. According to Ms Gordon, 12% of dwellings in the locality (which in Ms Gordon's opinion does not include Griffith Street, opposite the site) have a car space at the front of the property with a remodelled front façade or verandah.

18According to Ms Gordon, the proposal to demolish part of the verandah compromises the integrity of the existing built form of the dwelling and the pair of semis, as well as the landscaped character of the street, due to the loss of landscaping on-site and in the nature strip, which results in an unacceptable streetscape impact. Mr Fleming considers that there is little symmetry in the style of the adjacent semis and mature landscaping within the setbacks to the street is not a characteristic of the locality.

Submissions

19Mr Patterson submits that an on-street parking space is more valuable than a private on-site parking space, as the on-street parking space can be occupied at all times, by residents, by visitors and by local workers, whereas the on-site parking space can only be occupied by the occupant. Therefore the loss of an on-street parking space will make it more difficult for residents and visitors to find on-street parking.

20Ms Duggan submits that there are abundant precedents for parking in the front setback within the vicinity of the site and the attached dwelling has a shorter distance between the front façade and the street boundary, which is likely to preclude a future application for a similar proposal by the owner of the attached dwelling.

Findings

21I accept the agreement of the planning experts that the proposal will result in the loss of one on-street parking space. I am satisfied that the loss of one on-street parking space, exchanged for one private on-site parking space, is acceptable and complies with the DCP 2012, Part C1, Section 1.10, control (c)(v), as it does not result in the loss of 'more than 1 on-street car parking space'.

22The Council's contention particular 3(a) (exhibit 2), in relation to the loss of an on-street parking space, states that Plowman Street, particularly at the southern end, is currently experiencing 'extreme parking stress' due to the demand for parking created by the number of properties without on-site parking, which is further exacerbated by the demand created by the nearby shopping village. The difficulty in finding on-street parking was evident at the site view, as there was very limited availability of on-street parking spaces in the vicinity of the site, at that time. Council contends that the effective 'privatisation' of a publicly available parking space does not comply with DCP 2012 Part C1, cl 1.10, control (m)(x), which requires a high availability of on-street parking in the immediate locality, before permitting a hardstand forward of the building line. The reality is that if there was a high availability of on-street parking in the immediate locality, it is likely that the applicant would not have been as motivated to obtain consent for an on-site parking space. I am certainly sympathetic to the applicant's frustration, as expressed by him at the commencement of the proceedings on site, with regularly not being able to find parking in the vicinity of his home. In my view, the difficulty of finding parking in the locality provides a compelling justification for approving on-site parking for residents and the loss of one on-street parking space, in exchange for an on-site parking space, would be acceptable in the circumstances, were it not for the unsympathetic disfigurement of the front elevation of the dwelling, required to accommodate the on-site parking space. In my opinion, there is a strong argument for a resident parking scheme in this locality.

23I accept Ms Duggan's submission that there are abundant precedents for parking in the front setback within the locality (the locality being Plowman Street and the eastern end of Griffith Avenue), including unsympathetic alterations and additions to the front of dwellings to accommodate parking spaces and carport structures. I also accept Ms Duggan's submission that, given the asymmetry of the street façade of the pair of semi-detached dwellings and the alignment of the road, which results in a shorter front setback for the attached dwelling, the proposal would not provide a persuasive precedent for a future application for on-site parking in the front setback of the attached dwelling. For these reasons, I do not accept that the proposal, if approved, would create a planning precedent for future, similar development applications.

24I am satisfied that the proposed removal of a section of the front fence, the provision of timber wheel tracks with grass over in the front setback, the retention of the front pedestrian entry gate and paved pathway and the addition of soft landscaping would be acceptable and consistent with the character of the street and would have an acceptable impact on both the streetscape and the existing dwelling. This aspect of the proposal complies with the relevant objectives and controls of the DCP 2012.

25However, the proposed demolition of the masonry balustrade, footing and floor of the front verandah, between the existing masonry verandah piers, and extension of natural ground level under the verandah to the front façade of the dwelling, would unreasonably erode the integrity of the existing dwelling, detracting from the appearance and quality of the dwelling and the pair of semi-detached dwellings, regardless of their asymmetry. The proposed disfigurement of the front of the dwelling, in order to make room for a vehicle in the front setback, is contrary to Part C1, cl 1.10, objective (a) that the design, location and size of off-street car parking does not unreasonably detract from the appearance and quality of the dwelling-house; and fails to comply with control (i) that no part of the street façade of a building is to be altered or demolished primarily to accommodate car accommodation, unless it is sympathetically integrated into the design of the dwelling; and control (m)(vii) that a hardstand is designed so that it does not detract from the building.

26Relevantly, McClellan CJ set out, in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, the principles relevant to a consideration of development control plans, at [87] and it is in this context that I approach the relevant objectives and controls of the DCP 2012:

A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a large area or confined to an individual site. The provisions of a development control plan must be consistent with the provisions of any relevant local environmental plan. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan.
A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation.
A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied.
A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies.
Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property.

Conclusion

27I am satisfied that the loss of one on-street parking space, exchanged for one on-site parking space, would be acceptable and complies with the relevant provisions of the DCP 2012.

28I accept that there are abundant precedents for parking in the front setback within the locality and that the proposal would not provide a precedent for a future application for on-site parking in the front setback of the attached dwelling. For these reasons, I do not accept that the proposal would create a planning precedent for future, similar development applications.

29I am satisfied that the proposal, other than the proposed partial demolition of the front verandah, would have been acceptable and consistent with the character of the street and complies with the relevant objectives and controls of the DCP 2012.

30However, the proposed partial demolition of the front verandah will unreasonably detract from the appearance and quality of the existing dwelling and the pair of semi-detached dwellings and the contribution they make to the streetscape, which is contrary to the relevant objectives and controls of DCP 2012, particularly, objective (a) of Part C1, cl 1.10, which requires that the design, location and size of off-street car parking does not unreasonably detract from the appearance and quality of the dwelling-house; and controls (i) and (m)(vii).

Orders

31The orders of the Court are:

(1)The appeal is dismissed.

(2)Development Application No. 484/2013 for alterations to an existing semi-detached dwelling to accommodate an on-site car parking space within the front setback is refused.

(3)The exhibits, other than exhibits 2 and F, are returned.

Susan O'Neill

Commissioner of the Court

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Decision last updated: 04 November 2014