Coty (England) Pty Ltd v Sydney City Council

Coty (England) Pty Ltd v Sydney City Council - [2005] WASAT 145 - WASAT 2005 case summary — Zoe

[53]

24 As noted earlier in these reasons, the plan the subject of the DA was amended so as to preserve the Flooded Gum located on the verge adjacent to the northwestern portion of the principal part of the site. This tree was identified by Cr Klein as "a magnificent tree". It was similarly described by Mr Kar. However, it was not identified as having individual significance in a detailed arboriculture report prepared by Mr B Moorman in February 2005.

25 Rather, as Mr Allerding said in his written evidence, "[t]he photographs show the tree is a significant element of the streetscape and contributes in particular to the character and amenity of the immediate locality of Anzac Terrace". Mr Moorman considered that the overall health of the tree is good, although it has experienced a large number of large limb failures. He considered that it was possible to retain the tree "as long as guidelines for proper tree preservation are followed". Accordingly, had the applicants not amended the plans to avoid the destruction of the tree, if the Tribunal was otherwise minded to grant development approval, it would have imposed the condition recommended by the respondent's assessing planning officer.

26 Mr Moorman identified three "guidelines for proper tree preservation" which should be followed so as to retain the tree. First, he considered that "significant canopy works are required in an attempt to restore a reasonably acceptable structural form and remove any obvious hazards and deadwood". As the tree is located on the respondent's land, and as these canopy works are required irrespective of the proposed development, their implementation is the respondent's responsibility. Second, Mr Moorman considered that the tree should be monitored by a consulting arborist to evaluate health and vigour. Finally, he stated that "an undisturbed area around this tree free of any construction or other disturbances" was required. In particular, he recommended "a tree preservation zone around this tree approximately 7 metres in diameter and restrict all construction, compaction, storage, etc. within that area".

27 It was Mr Allerding's oral evidence, and Mr Wittkuhn's submission, that although the amended plans sought to preserve the tree, Mr Moorman's recommendation of a tree preservation zone could not be accommodated. In particular, Mr Allerding said that, when Mr Moorman used the word "diameter", it is more likely that he meant "radius". However, it appears from his report that Mr Moorman was an appropriately qualified and experienced arboricultural consultant. When an arboricultural consultant uses the word "diameter", it is reasonable to consider that that is precisely what he meant. According to the Macquarie Dictionary (Revised 3rd Edition), "diameter" means "a straight line passing through the centre of a circle or sphere and terminated at each end by the circumference of the circle" (page 527), whereas "radius" means "a straight line extending from a circle or sphere to the circumference or surface" (page 1563).

28 It appears that, other than a front fence, the closest structures proposed within the development to the tree are the verandah of unit 11, set back approximately 7.0 metres from the tree, and the western driveway, set back approximately 6.0 metres. The development, therefore, comfortably satisfies Mr Moorman's recommendation. However, for more abundant caution, and as Mr Burke did not oppose such a condition, all works and storage (other than the front fence) could be excluded from the area north of a point 1.0 metre from the verandah of unit 11 and west of a point 1.0 metre from the western driveway. This would allow the construction of those structures without interference with the tree.

[57]

32 In his written statement of evidence, Mr E Ryke, a civil engineer with 14 years' experience in the design and construction of major road works, traffic engineering and infrastructure projects, who was called on behalf of the respondent, identified two principal problems in relation to the internal circulation of the proposed development. First, he considered that a standard garbage truck would not be able to circulate within the internal driveway. Second, he noted that unit 4 and unit 12 had long driveways leading to their garage or carport and that it was necessary for vehicles exiting these units to reverse along that driveway before being able to proceed out of the development in a forward direction.

33 Mr Veal holds a masters degree in transport planning and engineering and has practised as a traffic and transport engineer for over 25 years. It was his evidence that the internal road "should accommodate the swept path movements of rubbish trucks and furniture vehicles". He also stated that, if "turning heads" were introduced for the benefit of unit 4 and unit 12, vehicles could enter and exit the car parking area of these units in a forward direction. As noted earlier, the amended plan incorporated "turning heads".

34 At the Tribunal's direction, Mr Ryke and Mr Veal had discussions outside the Tribunal room before they were called to give evidence, in order determine matters agreed between them, matters not agreed between them, and the reasons for any disagreement. When they came to give evidence, they did so concurrently. The Tribunal asked questions of each witness in relation to each relevant issue in turn. Each witness was then given an opportunity to ask his colleague any relevant question. Finally, counsel for the parties were given an opportunity to ask questions. The Tribunal found this process to be particularly helpful in understanding the evidence and the issues.

35 It quickly became apparent that the principal reason for the disagreement between the experts in relation to whether a rubbish truck could travel through the site in a continuous movement, was that, whereas Mr Veal had used a standard design 8.8metre long service vehicle in his assessment, Mr Ryke had used a 10.0metre long vehicle, which is the length of the vehicle which collects rubbish in the respondent's local government area. Mr Ryke and Mr Veal agreed that a standard design 8.8metre long service vehicle could traverse the proposed internal driveway in a single movement. After overnight work, Mr Ryke and Mr Veal also agreed that a 10metre long garbage truck could traverse the internal driveway in a single movement if a proposed dedicated pedestrian path were removed or if it were a dual-purpose path, and if a triangular area having a maximum depth of 0.5 metres and a length of 8.0 to 9.0 metres were removed from the private open space of unit 10 and added to the driveway area. Mr Ryke considered that it would be "totally unacceptable" not to have a dedicated pedestrian path, and he suggested that the private open space of unit 9 and unit 10 should be reduced so as to allow for a dedicated pathway. Mr Veal considered that a dedicated pedestrian path was unnecessary, because of the low volume and low speed environment of the development.

36 Mr Allerding stated in his oral evidence that, if the design of the development were modified to eliminate the dedicated pedestrian path in order to permit a garbage truck to manoeuvre through the site in a single movement, the development would breach the Acceptable Development criteria in relation to pedestrian access prescribed in cl 3.5.5 of the RCodes. The relevant criterion in par A5.1 is as follows:

[67]

40 In this latter respect, we prefer the evidence of Mr Veal, who is an experienced, specialist traffic and transport engineer with over 25 years' experience, to that of Mr Ryke, who is a civil engineer, although with experience in traffic engineering and infrastructure projects. However, consistently with par A4.5 of cl 3.5.4 of the RCodes, the Tribunal considers that the width of the internal driveway, where it serves more than one dwelling, should be increased to 4.0 metres exclusive of a 1.2metre wide pedestrian path (which, as noted earlier, would be in part a dualuse path for pedestrians and vehicles). Condition 25 in the annexure to these reasons describes the necessary modifications which should be made to the plan.

41 Finally, in relation to garbage truck movement, Mr Ryke noted that "twoway traffic access will be impeded when rubbish trucks are collecting waste from within the site". However, it was Cr Klein's evidence that garbage collection occurs only once a week (with recycling collection at the same time, but only every second week). The fact that some residents might be inconvenienced for a relatively short period once a week does not make the proposal unacceptable. Indeed, the fact that residents of the proposed development would have the convenience of being able to leave their rubbish bins directly in front of their dwellings, or in the case of unit 4 and unit 12 having to roll the bin or bins a relatively short distance to the principal portion of the driveway, rather than having to roll their bins a considerably greater distance to Anzac Terrace, adds to the internal amenity of the proposal. It also adds to the amenity of the locality, because it avoids 12 or 24 bins being placed on the Anzac Terrace verge. Contrary to Mr Wittkuhn's submission, there are a number of places off the driveway and pedestrian path where the residents of unit 4 and unit 12 could leave their bins adjacent to units 5, 8, 9, 10 or 11.

42 In relation to the "turning heads" shown on the amended plan, Mr Ryke and Mr Veal agreed that vehicles could enter and exit the car parking area of unit 4 in a forward direction, if the carport of that unit were relocated to the northern side of the area allocated to that unit. Condition 23 in the annexure to these reasons addresses this modification. Mr Ryke and Mr Veal also agreed that the proposed turning head for unit 12 would permit vehicles to enter and exit the parking area of that unit in a forward direction, although larger four wheel drive vehicles would require more than a three point turn. Mr Ryke said that a larger four wheel drive vehicle might require a five point turn to be able to exit in a forward direction. The Tribunal does not consider that the fact that, in the case of one unit, a larger four wheel drive vehicle might require a five point turn, means that the internal circulation of the proposed development is unacceptable.

43 Mr Ryke and Mr Veal also agreed in their concurrent evidence that the distance between the two driveways on Anzac Terrace was acceptable and that the sightlines were acceptable. In particular, they both considered that there were no branches or growth in the tree to be retained on the verge which would obstruct visibility.

[70]

46 Although it was apparent from photographs that the trees in the access handle part of the site do contribute positively to the amenity of the three residential properties immediately to the west of the site, in light of the zoning and density coding of the site (and of the three adjoining residential properties), it would not be reasonable to insist on the retention of the trees in the access handle in order to preserve this "borrowed" private residential amenity. The retention of the trees in the access handle part of the site would, in effect, preclude development of that part of the site for dwellings. Moreover, the aerial photograph indicated that the westernmost two properties adjoining the access handle had been developed with structures in close proximity to the common boundary, rather than with landscaping. In particular, the residence of Mr MA Hansen at No 13 Anzac Terrace, who gave evidence in the respondent's case objecting, among other things, to the removal of trees in this section of the site, has a large pool and what appear to be buildings or other structures, without any trees, adjacent to the common boundary with the site. It would not be reasonable to preclude residential development in the access handle because of the choice of adjoining property owners to develop their properties effectively to the common boundary.

47 From Railway Parade, the proposed development would replace the present view of a treed, grasscovered laneway with a singlestorey, freestanding dwelling. A tree at the southwestern corner of the site and two trees to the rear of proposed unit 13 would be retained. The Tribunal considers that the impact of the development on streetscape and amenity when viewed from Railway Parade is acceptable.

48 Existing fig trees are proposed to be retained along slightly more than half of the southern boundary of the site, although the two singlestorey dwellings proposed along the access handle part would be visible in the sections where existing trees are proposed to be removed. The Tribunal considers that, in light of the zoning and density coding of the site, and the presence of significant railway infrastructure to its south, the proposed development, including the removal of trees, would have an acceptable amenity impact when the site is viewed from the dualuse pathway and from residential properties to the south of the railway line.

[79]

58 Mr Ryke did not undertake a similar operational assessment, and did not question the operational assessment undertaken by Mr Veal. However, Mr Ryke noted that Mr Veal's assessment had classified the level of service for the vehicles exiting the Success Hill Locality, in both the morning peak and afternoon peak, as "F", which means "unacceptable, fail" for both the existing and postdevelopment scenarios. Mr Veal responded that the program had, nevertheless, classified the overall performance of the intersection as "A", which means "excellent", for both scenarios. The "F" level of service in the morning and afternoon peaks for the existing situation was generated by an average delay of 68 seconds, with a queue length of two vehicles, in the morning, and 68 seconds, with a queue length of one vehicle, in the afternoon. The development would increase the average delay by only 9 seconds and the queue length by one vehicle in the morning, and would only increase the afternoon delay by 5 seconds and the queue length by one vehicle. In Mr Veal's experience, such delays and length of queues was not unexpected in the peak periods in relation to such intersections.

59 A number of residents objected to the proposed development, because it would exacerbate existing congestion at the Success Road/Lord Street intersection. Councillor Klein described the intersection at peak hour in the morning as "a real problem area". Mr Hansen referred to "large backlogs of traffic queuing every morning along Lord Street, making it difficult to turn safely from Success Road".

60 Although the residents' objections and evidence about delays in exiting the Success Hill Locality are borne out in the operational assessment undertaken by Mr Veal, the Tribunal does not consider that the level of delay and potential traffic safety risk in the peak periods warrants the refusal of the proposed development. The Tribunal accepts the evidence of Mr Veal that the level of delay and potential for vehicular collisions are not unacceptable for an intersection of the type at Lord Street/Success Road. It does so in light of Mr Veal's significant level of specialist experience and the fact that the intersection has not been identified as warranting "black spot" expenditure. Although, given the level of service found by Mr Veal in the peak periods, the intersection would no doubt benefit from expenditure which would improve performance and safety, the Tribunal is satisfied that the intersection has sufficient capacity to cater for the vehicles generated by the proposed development.

[81]

61 Mr Veal had caused traffic counts to be undertaken on Anzac Terrace. On the basis of these counts, he estimated that there were approximately 120 vehicle trips per day in the busiest section of Anzac Terrace. The proposed development would double this traffic volume, resulting in an average of 20 movements per hour or one movement every three minutes. In the immediate vicinity of the culdesac, where the present vehicular generation is about 20 movements per day, the proposed development would increase that number five or sixfold.

62 However, Mr Veal considered that a road having a paved width such as Anzac Terrace had the capacity to cater for 1000 vehicle trips per day. He, therefore, considered that Anzac Terrace had sufficient capacity to cater for the proposed development. Moreover, he did not consider that the development would give rise to an unacceptable pedestrian safety risk.

63 A number of the objections which were made by residents to the respondent in relation to the proposed development raised concerns about safety and noise issues associated with additional vehicular use of Anzac Terrace. In his evidence, Mr Hansen noted that, because of the width of Anzac Terrace, vehicles cannot easily pass coming from opposite directions and that there is no footpath. He noted that he had observed vehicles picking up speed on River Street and Eighth Avenue as they approached the intersection of Anzac Terrace, because of the steep downward slope onto Anzac Terrace. He also said that the increase in traffic "will adversely affect enjoyment of our property by forever altering the quiet and secluded character of the area".

64 Mr Ryke raised no concern about the capacity or safety issues of additional traffic generated by the proposed development on Anzac Terrace. As noted earlier in these reasons, Mr Ryke and Mr Veal agreed that the distance between the two proposed driveways on Anzac Terrace was acceptable and that there were adequate sightlines for safe vehicular exit onto Anzac Terrace. In consequence of the evidence of both traffic experts that Anzac Terrace has sufficient capacity to cater for the proposed additional traffic, and that the additional traffic will not give rise to an unacceptable safety risk, the Tribunal has concluded that the development is acceptable in this respect. Although it is likely that, in the vicinity of the head of the culdesac, a sixfold increase in traffic would be noticeable, it is simply a consequence of the zoning and density coding of the site. It would, therefore, be unreasonable to refuse the development application because cars generated by it are likely to affect residential amenity in the immediate locality.

[92]

72 In her oral evidence, Cr Klein said that, in 1996, the respondent had set about changing the zoning of the site from "R25" to "R1520". However, "that failed because the government did not agree". In 2003, the respondent assessed the fragility of the river and resolved that the area should be coded "R10". Although Cr Klein stated at first that "most definitely" the site would be downzoned to "R10", she conceded that she had not spoken to the Minister for Planning in relation to the downcoding, and that, if the respondent were to receive submissions in opposition to the downcoding, "we will need to look at it again". She conceded that "anything could happen", and volunteered that, in her earlier evidence, her use of the word "definitely" was "very presumptuous".

73 Mr Carter gave evidence that it was his opinion, and, based on discussions, councillors' opinions generally, "that TPS3 does not reflect some of the environmental concerns that have arisen in the past 20 years, especially for land adjacent to the Swan River". He stated that "as such, at all stages through the proposed Town Planning Scheme No. 10 process, land has been identified for a lower density". He indicated that the downcoding process commenced in about 1995. Although "there have been considerable delays, particularly on the part of the Western Australian Planning Commission, ... Council's intent with regard to 1 Anzac Terrace has been clear and consistent". In his oral evidence, Mr Carter confirmed Cr Klein's evidence that, in 2003, "the Planning Commission took [the respondent's proposed downcoding of the site and locality] as a down-zoning and had concerns".

74 There are two ways in which the LPS could be of relevance in relation to the proposed development. First, par (c) of cl 5.3.1 of TPS3 requires the respondent, and the Tribunal on review, to take into consideration "any ... policy adopted by the Council for development of the locality". This would include the LPS, which has been adopted by the respondent, and which, on the evidence, reflects the view of the respondent since at least 1996 that the "R25" coding of the site was, in Cr Klein's words, "an anomaly". However, although the contemplated downcoding in the LPS is a relevant consideration under cl 5.3.1 of TPS3, it could only be given minimal weight as an adopted policy of the respondent, because the express objects of the Scheme include:

[105]

79 In this case, Mr Wittkuhn ultimately made no submission in relation to weight. Mr Burke identified the statutory processes which were required to be completed before the downcoding contemplated in the LPS could form part of the Scheme, and emphasised the evidence of Cr Klein that "anything could happen". He noted that previous attempts to rezone the land were met with opposition from the Minister.

80 The Tribunal considers that only minimal weight could be given to the downcoding contemplated in the LPS in the circumstances of this case. Although the downcoding addresses the specific application in question in these proceedings, there was no satisfactory evidence before the Tribunal in relation to whether the downcoding is based on sound town planning principles, at least in relation to the first reason put forward for the downcoding. While Cr Klein and Mr Carter identified one of the bases of the downcoding as concern about the impact of residential development on the environmental quality of the river, no scientific evidence was presented to establish that the downcoding was necessary in order to preserve that environment. Indeed, the Swan River Trust advised the respondent that it had no objections to the proposal, subject to the imposition of conditions. The second reason put forward by Cr Klein for the downcoding, namely "to preserve the character and feel and amenity of the area" was supported by Mr Allerding. It appears that this reason might be based on sound town planning principles.

81 However, the downcoding envisaged in the LPS is uncertain and quite the opposite of imminent. No evidence was presented in relation to the attitude of the Western Australian Planning Commission, much less of the Minister, in relation to the downcoding. The fact that approval has been given by the Commission to advertise the LPS could not be regarded as endorsement of any or all of that document. The fact that the Minister did not agree to a downcoding of "R15R20" does not bode well for a more significant downcoding to "R10". Moreover, the LPS is not even a proposed amendment to TPS3, although the LPS envisages that its provisions would ultimately be effected through amendment of the Scheme. Therefore, in addition to the receipt and consideration of submissions which, as Cr Klein conceded, could result in the respondent having to "look at it again", the respondent's final position following the review of submissions would need to be translated into a draft amendment to TPS3.

82 Mr Allerding considered that "notwithstanding the density code that applies over the subject site [at present], it is considered that the form of development proposed will be incongruous with the nature and form of existing development within the area particularly that identified within Council's Local Planning Strategy for Area F". Mr Allerding emphasised the following matters:

[111]

83 Mr Allerding stated that "achievement of the maximum density [permitted under the RCodes] should not ... override all other planning considerations, including those outlined in Clause 5.3 of Council's Town Planning Scheme No. 3 in order to achieve good urban form and the interests of orderly and proper planning". However, he considered that "it is possible that the same density could be achievable" once the issues which he identified were satisfactorily addressed. In crossexamination, Mr Burke challenged Mr Allerding to reconcile his view that a similar density could be achievable with his view that the proposed density was unacceptable in light of the considerations identified above. Mr Burke suggested to Mr Allerding that, if larger lots were required at the street frontage to achieve good urban form and in the interests of orderly and proper planning, a similar density to that proposed could only be achieved by significantly smaller lots within the development. That, however, would involve a breach of the RCodes.

84 Mr Sri Ramanathan considered that the building forms, and the spaces between and around the proposed buildings, would contribute "to a harmonious streetscape composition". He emphasised that the proposed buildings would have pitched roof configurations compatible with the existing dwellings in the vicinity and that their heights matched existing dwellings. He also emphasised that the location of the garages on the driveway permitted the forecourts of the street front dwellings to be landscaped and to achieve an open streetscape setting for the buildings, thus enhancing the streetscape composition.

85 Although the Tribunal accepts Mr Allerding's evidence that the density coding is a maximum density and that it should not override other planning considerations, it does not accept his opinion that the proposed development "will be incongruous with the nature and form of existing development". While the street presentation of the proposed development will be different to existing development in the locality, it will, nevertheless, be compatible with existing development. This compatibility is achieved by the presentation of the three buildings facing Anzac Terrace and the single building facing Railway Parade as single detached dwellinghouses in a landscaped setting. The fact that the width, lot sizes and front gardens of the proposed dwellings are smaller than that which is typical of large single dwellinghouses on large allotments of land is, however, an almost inevitable consequence of development of the site in accordance with the applicable zoning and planning controls. No photographs were tendered of the appearance of the site and of the locality from the river. However, there is room for landscaping between the proposed buildings and the river. Conditions 6 and 7 in the annexure to these reasons require the preparation, implementation and maintenance of a landscape management plan to the satisfaction of the Swan River Trust for this part of the site. In addition, condition 14 requires the approval by the respondent, and implementation and maintenance, of a landscape plan for the site generally.

86 A number of objectors also raised a concern that the density and form of the development would be out of character with the locality. Councillor Klein gave evidence that she was:

[114]

90 On the proper construction of TPS3, the conformity of a residential development with all applicable provisions of the RCodes does not mandate approval. The respondent, and the Tribunal on review, retains residual discretion under the terms of the Scheme, taking into consideration the specified matters set out in cl 5.3.1. However, the fact that a development conforms to a relevant provision of the RCodes is likely to be significant in relation to a related required matter for consideration under a town planning scheme.

91 In this case, the principal merit considerations in relation to the proposed development concerned density, traffic delay and safety, and internal circulation.

92 The Tribunal has determined that the proposed development is not an overdevelopment of the site. It is not a development which exceeds the environmental or planning capacity of the site. In this regard, although the respondent has formulated, and placed on public exhibition, a proposal which would ultimately, if implemented, lead to a downcoding of the site, the weight which can be reasonably given to the proposed downcoding is minimal. While it is a "seriouslyentertained planning proposal" and, therefore, a relevant matter for consideration in the planning assessment, the ultimate downcoding of the site is, on the evidence, uncertain and, if it ever occurs, hardly imminent.

93 The form and presentation of the proposed development would certainly be different to the form and presentation of existing dwellings in the immediate locality. However, given that development in the locality is characterised by large dwelling-houses on large allotments of land, that is hardly surprising. The fact that the proposal would present to the public domain as more modestly sized dwellings on smaller allotments is an almost inevitable product of the zoning and coding of the site. However, the Tribunal is satisfied that the proposed development, while different, would, nevertheless, be compatible with the nature and form of existing development in the locality, principally because the proposed dwellings would present as single dwellings of one or two storeys in a landscaped setting. The retention of a large Flooded Gum on the road reserve adjacent to the site will also assist in integrating the proposed development into the wider locality.

94 Although, unusually, the locality of the site has only a single access point to the district road network, the Tribunal is satisfied that the intersection which provides access to the district network has sufficient capacity to cater for the proposed development and that the proposed development does not give rise to an unacceptable traffic safety risk. Similarly, the Tribunal is satisfied that the immediate road network has sufficient capacity to cater for the development and that the development does not give rise to an unacceptable pedestrian or vehicular safety risk in the immediate locality. Although the increase in vehicular use of the immediate road environment of the site would be noticeable, that impact is an almost inevitable consequence of the zoning and density coding of the site.

95 The Tribunal is satisfied that, with some modification by way of condition, the internal circulation proposed is workable. In particular, the Tribunal is satisfied that, with conditions to be imposed, the site can be serviced, including by 10metre long garbage trucks, without the need for multiple movements. Furthermore, vehicles will be able to access each of the units off Anzac Terrace and exit the site in a forward direction, without having to reverse for other than a short distance on the common driveway.

96 The Tribunal is, therefore, satisfied that the proposed development merits conditional development approval. The orders of the Tribunal are as follows:

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (146 paragraphs)

Dumbleton & Anor and Town of Bassendean [2005] WASAT 145 (28 June 2005)

Parties

Cases Cited (1)