ABD Holdings v Waverley Council

Land and Environment Court (NSW)|2012-09-18

Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of Development Application No. 446/2011 (the application) by Waverley Council (the Council) for alterations and additions to a residential flat building, at 70 Fletcher Street, Bondi (the site). 2The appeal was subject to mandatory conciliation on 14 May 2012, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached during the conciliation phase, the conciliation conference was terminated on 24 July 2012 pursuant to s 34(4) of the LEC Act.

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

The proposal will compromise pedestrian amenity and safety;
The proposed development does not satisfactorily recognise the constraints of the site; and
The proposal will result in an unacceptable impact on the visual privacy of unit 1, 68 Fletcher Street, Bondi.

Background and the proposal 8The alterations and additions to the existing residential flat building include driveway access to the site from Fletcher Street, realignment and raising the footpath on either side of the driveway, excavation and construction of a basement car park, with car access from the ground floor via a car lift and a new pedestrian lift. 9The proposal includes the construction of a driveway on an unmade section of Fletcher Street, which is a public road, within the meaning of the Roads Act 1993 (Roads Act) and on land which is zoned 6(a) Open Space, pursuant to Waverley Local Environmental Plan 1996 (LEP 1996). Consent is required for the construction of the driveway, pursuant to s. 139(1) of the Roads Act. 10The construction of the driveway includes the demolition of a rustic stone stair between the footpath in front of 70 Fletcher Street and Marks Park.

Planning Framework 11The proposal is subject to the provisions of State Environmental Planning Policy No 71 - Coastal Protection (SEPP 71). The relevant aims of this policy, at clause 2, are: (b) to protect and improve existing public access to and along coastal foreshores to the extent that this is compatible with the natural attributes of the coastal foreshore, 12The relevant matters for consideration, at clause 8 of SEPP 71, are: (b) existing public access to and along the coastal foreshore for pedestrians or persons with a disability should be retained and, where possible, public access to and along the coastal foreshore for pedestrians or persons with a disability should be improved, 13Clause 14 of SEPP 71 relevantly states: A consent authority must not consent to an application to carry out development on land to which this Policy applies if, in the opinion of the consent authority, the development will, or is likely to, result in the impeding or diminishing, to any extent, of the physical, land-based right of access of the public to or along the coastal foreshore. 14s. 138(1) of the Roads Act states: 138 Works and structures (1) A person must not: (a) erect a structure or carry out a work in, on or over a public road, or (b) dig up or disturb the surface of a public road, or (c) remove or interfere with a structure, work or tree on a public road, or (d) pump water into a public road from any land adjoining the road, or (e) connect a road (whether public or private) to a classified road, otherwise than with the consent of the appropriate roads authority. 15s. 139(1) of the Roads Act 1993 states: 139 Nature of consent (1) A consent under this Division: (a) may be granted on the roads authority's initiative or on the application of any person, and (b) may be granted generally or for a particular case, and (c) may relate to a specific structure, work or tree or to structures, works or trees of a specified class, and (c1) in relation to integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979, is subject to Division 5 of Part 4 of that Act, and (d) may be granted on such conditions as the appropriate roads authority thinks fit. 16The site is located within the 2(c1) Residential - Medium and High Density Zone, pursuant to LEP 1996. The relevant objectives of this zone, at clause 10 of LEP 1996, are: (a) to allow for a variety of housing forms, including dwelling-houses, townhouses and boarding houses, 17The adjacent Marks Park is located within the 6(a) Open Space Zone pursuant to LEP 1996. The relevant objective of this zone, at clause 10 of LEP 1996, are: (a) to protect, maintain and enhance existing open space 18Clause 32 of LEP 1996, 'Development along zone boundaries', states: In granting consent to the carrying out of development on land adjoining land in another zone, the Council must have regard to the objectives of the adjoining zone and to the measures to reduce the adverse impact of the development on land within the adjoining zone. 19Clause 43 of LEP 1996 states: This Plan does not restrict or prohibit or enable the Council to restrict or prohibit: (a) the carrying out of development described in Schedule 4, or (b) the use of existing buildings of the Crown by the Crown. 20Schedule 4 of LEP 1996, 'Excepted development', referred to in clause 43 of LEP 1996, includes the following: 8 The carrying out of any development required in connection with the construction, reconstruction, improvement, maintenance, repair or operation of any road, except the widening or realignment of a road. 21The proposal is subject to the provisions of Waverley Development Control Plan 2010 (DCP 2010). 22Section D2 Multi-Unit Housing of DCP 2010, includes, at clause 4.2 'Vehicular Access and Parking', the following objectives: (a) To integrate adequate car parking without compromising street character, landscape quality, or pedestrian amenity and safety. (b) Encourage increased use of public transport and bicycles. 23Section I1 Land Use and Transport of DCP 2010 includes, at clause 2.0 'Parking Provision - Context', the following: Community views on transport planning are changing and contemporary planning theory is looking to a more sustainable and integrated transport and land use planning approach. Council seeks to address issues regarding on-site parking demand, the principle of car use reduction encouraging walking, cycling and the use of public transport. 24Section I1 of DCP 2010 includes, at clause 5.0, 'Urban Design, Streetscape and Heritage Conservation', the following: The LGA has older established areas, which were designed and built before the widespread use of cars. The retrospective provision of off-street car parking has caused significant impacts on streetscapes and has impacted upon the amenity of pedestrians and cyclists. 5.1 Design (a) Pedestrian and cyclist amenity on streets is maintained or improved. (b) Existing on-street parking supply is protected by minimising impacts of additional vehicular kerb crossings.

Public submissions 25Three residents from the adjoining residential flat building at 68 Fletcher Street provided evidence on site. Their concerns can be summarised as:

The footpath in front of their residential apartment building is proposed to be raised 375 mm and this will allow pedestrians to look over the fence and into the windows of the living room and bedroom of unit 1;
If the front boundary fence of 68 Fletcher Street is raised 375 mm to maintain the existing height above the footpath, unit 1 will receive less light into the living room and bedroom window;
The proposal will result in increased noise and fumes from the cars entering and exiting the basement car park;
The proposal will result in disturbance from the noise of the car lift; and
The proposed excavation of the basement car park may result in structural damage to their residential flat building and site.

Expert evidence 26A joint traffic report was provided by Mr Craig McLaren for the applicant and Mr Chris Hallam for the Council. A joint stormwater report was provided by Mr Drew Bewsher for the applicant and Mr Minas Kassiou for the Council. 27Expert planning evidence was provided by Mr Andrew Darroch on behalf of the applicant and Mr Kerry Nash on behalf of the Council.

Traffic 28The traffic experts agree that the proposal will result in the loss of one on-street parking space and the provision of six parking spaces on site and that this is an acceptable trade-off. The traffic experts agree that the profile of the driveway is satisfactory. 29The traffic experts have agreed to amend the proposal as follows:

The landing at the top of the stairs to the east of the driveway is to be increased by relocating the stairs further to the east;
The boundary wall is to be removed for pedestrian safety; and
Amber lights, visible to pedestrians, are to be installed as a warning of an exiting vehicle. 30Following these amendments, the traffic experts agree that the proposal satisfies the contentions raised by Council in their Statement of Facts and Contentions concerning vehicle scraping on the driveway, pedestrian/vehicle safety and loss of on-street parking.

Stormwater 31The stormwater experts have agreed to amend the proposal as follows:

The grate in the gutter/layback area is to be relocated 450 mm to the north-east so that the south-west edge of the grate aligns with the gutter lip and the proposed grate is to be shaped in an 'inverted butterfly' profile (two straight 450 mm wide panels either side of RL26.059 to match the gradients specified by the traffic engineers);
The proposed new gully pit on Fletcher Street, located to the west of the driveway, is to have benching in the pit to deal with the 90 degree change in direction; and
The surface inlet pit adjacent to the footpath outside no. 68 Fletcher Street is to be a standard letterbox pit (with entry on all four sides) and the pit is to be relocated to allow the outlet pipe to avoid the service pit. 32The stormwater experts agree that these amendments can be dealt with by conditions of consent. Following these amendments, the stormwater experts agree that the proposal satisfies the contentions raised by Council in their Statement of Facts and Contentions concerning stormwater.

Planning 33The planners agree on the following:

The driveway access works are wholly within the Road Reserve and the works within the 6(a) Zone are confined to the reconfiguration of the footpath and steps;
Marks Park is a key venue for the annual Sculptures by the Sea exhibition and is part of the coastal walk along the eastern seaboard and as a consequence, the footpaths in this area carry a higher than normal volume of pedestrians;
The proposal does not require the removal of any trees in Marks Park and that the construction of the driveway will only affect the Coastal Rosemary shrubs adjacent to the rustic stone steps;
A layback for pedestrian access to Marks Park is to be provided on the eastern side of the top of the driveway;
The applicant offering to increase the height of the batten screen fence on the street boundary of 68 Fletcher Street, relative to the footpath, could address the impact of the raised level of the footpath on the privacy of unit 1. 34Mr Nash has included a condition requiring a Construction Management Plan be prepared in consultation with Council as Council is concerned that the construction of the proposal is likely to cause disruption to pedestrian movements on the northern side of Fletcher Street and any disruption to the pedestrian traffic needs to be appropriately managed, including avoiding construction during the Sculpture By the Sea exhibition (mid October - early November). The applicant agrees with this condition.

Submissions 35Mr Eastman submits that there are two legal issues arising in this matter, firstly whether or not works in the 6(a) zoned component of the land is able to be carried out and secondly, how the Court deals with the applications under Part 5 of the Environmental Planning and Assessment Act 1979 (EPA Act). 36Mr Eastman submits that under s 39(2) of the Land and Environment Court Act 1979 (the Court Act), the Court has the power to grant the Roads Act approval (Goldberg v Waverley Council [2007] NSWLEC 259 [Goldberg]). Biscoe J held, in Goldberg, that the road works were permissible without development consent under LEP 1996 because 'by cl 43 and Sch 4 (item 8), no provision of that local environmental plan can operate to prohibit or restrict the construction of a road' (at par 13). 37Mr Eastman submits that with respect to the 6(a) zoned land where some works are proposed to the footpath within the road reserve, the combined effect of clause 43 and Schedule 4 of LEP 1996 means that the works are not prohibited and can be carried out as part of the relevant Roads Act approval. 38The Council accepted the approach suggested by Mr Eastman.

Traffic and stormwater 39I accept the evidence of the traffic experts that Council's contention regarding the safety and amenity of pedestrians is addressed by their amendments to the proposal. 40I accept the evidence of the stormwater experts that Council's contentions regarding stormwater are addressed by their amendments to the proposal.

Impact on 68 Fletcher Street 41Following the addition of conditions of consent by the experts addressing Council's contentions and the agreement by the parties that an offer is to be made to 68 Fletcher Street to raise the fence and maintain the existing height above the footpath, Council's only remaining contention was the impact of the use of the driveway on the residents of 68 Fletcher Street. 42During the site inspection, I observed that there are a number of two and three storey residential flat buildings on the northern side of Fletcher Street with driveway crossovers and on-site parking. 43According to Mr McLaren, the expected traffic generation of the proposal is 30 movements each day, or 3 movements during the morning and afternoon peak hours. I am satisfied that the impact of these movements on the residents of 68 Fletcher Street is acceptable. While there will be some additional noise generated by a limited number of residential vehicles, this will not create unacceptable amenity impacts that would warrant the refusal of the application. 44I note that conditions are included requiring the following in relation to 68 Fletcher Street;

That an offer be made to raise the level of the fence to maintain the existing height of the fence above the footpath (condition 2(j));
That the raised footpath in front of 68 Fletcher Street will be structurally independent of the existing front boundary wall (condition 2(j)); and
That a dilapidation report be prepared by a structural engineer regarding the adjoining property and submitted to the Principal Certifying Authority (condition 27). 45I am satisfied that the matters raised by the resident objectors do not warrant further amendment or refusal of the application.

Roads Act approval 46I accept Mr Eastman's submissions that under s 39(2) of the Court Act, the Court has the power to grant the Roads Act approval and that with respect to the 6(a) zoned land, the combined effect of clause 43 and Schedule 4 of LEP 1996 means that the works are not prohibited and can be carried out as part of the relevant Roads Act approval.

Conclusion 47In considering the amendments to the proposal agreed by the experts, and taking into consideration the issues raised by the objectors, I am satisfied that it is appropriate to grant the consent, having regard to the whole of the circumstances, including the proposed conditions of consent.

Orders 48The orders of the Court are:

The appeal is upheld.
Development Application No DA-446/2011 dated 2 November 2008 in relation to the alteration of and addition to the existing basement to accommodate a car park for 6 cars including car lift is approved subject to the conditions constituting annexure "A"
Approval is granted pursuant to s 138 of the Roads Act 1993 (NSW) for construction of a new driveway on the unmade road reserve shown in the Waverley Local Environmental Plan 1996 and is to be carried out in accordance with the conditions approved in order 2 above.
Approval is granted pursuant to section 112 of Part 5 of the Environmental Planning and Assessment Act 1979 (NSW) for works in the area zoned 6(a) Open Space pursuant to the Waverley Local Environmental Plan 1996 and is to be carried out in accordance with the conditions approved in order 2 above.
The exhibits, other than exhibits 6 and A, are returned.

Susan O'Neill Commissioner of the Court ANNEXURE A

Amendments 12 November 2012 - Additional Orders added in accordance with Rule 36.17 of the Uniform Civil Procedure Rules 2005. Amended paragraphs: Judgment Coversheet and Decision 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: 12 November 2012

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