Elias v Blacktown City Council

Land and Environment Court (NSW)|2022-03-28

The Applicant's expert evidence

The Applicant's expert, Mr Varga, gave evidence that the currently approved driveway does not allow for two vehicles to pass each other and that, in his opinion, "… it is clear that two vehicles passing in opposite directions at the same time was not contemplated by Council when it approved the 4.7 m wide access handle" (Ex 3, par 3.1.2.2). His evidence is that the low traffic volumes using the driveway mean that the provision of a two-lane driveway or a waiting bay at the site entry is not required by either Austroads Guide to Traffic Management (Austroads) or AS/NZS 2890.1:2004 - Parking Facilities (AS/NZS 2809.1).
In oral evidence Mr Varga, the Applicant's traffic expert, did not accept that the objective of clause 4.3.10 of the DCP was to enable cars to pass within the driveway. In his opinion, the objective of the clause was what he described as a "greater land take" adding that he thought it was an unusual provision and that he didn't "see the point of it". Mr Varga also gave evidence that, in his opinion, it would not be possible for two vehicles to pass in the currently approved 4.7 m wide access handle. In this regard his evidence (Ex 3, par 3.1.2.3) is that: 1. The width of a B85 vehicle is 2.1 m, including side mirrors; 2. Thus, the clearance between two B85 vehicles passing on a 4.7 m driveway between a wall and a fence is only 166 mm; 3. It is "highly unlikely" that two B85 drivers travelling in opposite directions could achieve the required 166 mm clearances (less than the width of an A4 page) on both sides of the vehicle; 4. AS/NZS 2890.1 requires a clearance of 300 mm on both sides of slow moving vehicles and this is "clearly unachievable" in the currently approved 4.7 m driveway; 5. Larger vehicles such as SUV's and 4WD's are likely to have clearances of even less than 166 mm, if not eliminated altogether, and thus the proposition that two vehicles will be able to pass each other in a 4.7 m wide driveway "is clearly unreasonable and untenable".

The respondent's expert evidence

The Council says that the objective of the 5 m access handle in clause 4.3.10 of the DCP is to provide for two vehicles to pass and also to provide the opportunity for a landscape buffer to properties adjoining the access handle: (Ex 1, p 14). In the Joint Expert Report, the Council's traffic expert, Mr Steal, gave evidence (Ex 3, par 3.1.6) that the 5.0 m access width required by clause 4.3.10 of the DCP "is intended to achieve multiple desirable outcomes including but not limited to: 1. Providing for two-way passing for passenger vehicles of all sizes at low speeds; 2. Providing the opportunity for a low-level landscaped buffer which does not inhibit two-way passing opportunities; 3. Increasing the width of the driveway at the boundary to provide for improved sight lines between pedestrians on the footpath and vehicles exiting the site, compared to a single-width driveway opening."
Mr Steal gave evidence (Ex 3, par 3.2.3.1) that the provision of two-way passing along the proposed driveway is required not only by the DCP but also by clause 3.2.2 of AS/NZS 2890.1. That clause is as follows:
Mr Steal's evidence (Ex 3, par 3.2.3.2) is that this clause requires the provision of passing facilities for Category 1 access driveways where the driveway is 30 m or longer.
In this case, Mr Steal says the proposed driveway is 34.1 m in length thus requiring the provision of passing facilities (Ex 3, par 3.2.3.3). He also observes that an entering vehicle will not be able to observe the entire length of the driveway until after turning into the driveway (although Mr Varga's evidence is that this can be remedied by the provision of a convex mirror at the entrance to the Site (Ex 3, par 3.2.2.7)).
Mr Steal explains in his evidence (Ex 3, par 3.2.3.9) that the 99th percentile vehicle (B99) represents a vehicle that is larger than all but 1% of the passenger vehicle fleet. Similarly, a B85 vehicle is a vehicle that is larger than all but 15% of the passenger fleet and a B50 "light car" represents the median vehicle with a 4.45 m length and 1.7 m width (Ex 3, pars 3.2.3.10 and 3.2.3.11).
Mr Steal's evidence is that under AS/NZS 2890.1, 300 mm clearance should be provided on both sides of vehicles when undertaking swept path testing as this provides for a range of driver skill levels and provides a "forgiving" design. Using the vehicle dimensions in AS/NZS 2890.1 and allowing 300 mm clearance, Mr Steal's evidence is that the minimum width for two vehicles to pass each other at slow speeds is set out in the following table (Ex 3, par 3.2.3.13):
The total clearance width of 0.9 m allows clearance of 300 mm on either side and also between passing vehicles (Ex 3, par 3.2.2.14).
Mr Steal's evidence is that all combinations of vehicles would be able to pass on a 5.0 m driveway which is the width prescribed by the DCP. For a 4.7 m driveway, Mr Steal's evidence is that only the combinations of large vehicles (B99/B85) would be unable to pass with 300 mm clearances maintained and that a reduction in clearances by 8 cm from 900 cm to 892 cm would be required to achieve the passing of two B99 vehicles, a reduction which he says is inconsequential and would not inhibit the ability of vehicles to physically pass each other on a 4.7 m wide easement at slow speeds (Ex 3, pars 3.2.3.15 to 3.2.3.17).
Mr Steal also says that the passing of vehicles can be facilitated by folding in the side mirrors and that passing vehicles could also use the landscaped strips on either side of the driveway pavement, which he notes are to comprise decorative gravel with a low level planting of decorative grasses (Ex 3, par 3.2.3.25).
Mr Steal concludes his evidence on this point as follows (Ex 3, par 3.2.3.18): "Whilst my preference would be that a 6.1m width be provided where two-way passing of vehicles between high obstructions is required, passing could physically occur using a 5.0m width or a 4.7m width and this is intended under the DCP for low-volume access driveways. Further, it is my expectation that were a 4.7m wide driveway provided, drivers would utilise it to achieve two-way passing, particularly given that they would be familiar and regular users of it."
In cross-examination, Mr Steal would not agree that it would be impractical for two vehicles to pass on a 4.7 m driveway without causing damage to the vehicles or buildings adjoining the driveway and insisted that passing would be "practical at low speeds".
Mr Steal says that, while he acknowledges that there is a low probability of two vehicles travelling in opposite directions along the driveway at the same time, "when the design life of the development is considered it is inevitable that it will occur" (Ex 3, par 3.2.3.26).
Mr Steal's evidence (Ex 3, par 3.1.3.1) is that the proposed reduction in the width of the driveway will result in several undesirable outcomes including: 1. Drivers being forced to reverse out of the driveway into the travel lanes of Turner St to allow an exiting vehicle to pass. His evidence is that this could result in a collision with a vehicle travelling on Turner St or a collision with a pedestrian walking along the footpath. He says the chance of a collision with a pedestrian is compounded given the reduced sight distances available at the driveway entry resulting from the reduced driveway width. 2. Drivers being forced to make long reversing manoeuvres internally to provide for passing. Long reversing manoeuvres, he says, require a level of driver skill and may result in vehicle damage or damage to structures. This, in his view, is an unreasonable burden on the future residents of the proposed development. 3. The reduced sightlines available at the driveway opening will, on Mr Steal's evidence, reduce the mutual sightlines available and increase the risk of a collision between a vehicle exiting the site with a pedestrian walking along the footpath compared to the approved design.

Mr Varga's response

In relation to clause 3.2.2 of AS/NZS 2890.1, Mr Varga's evidence is that the element of non-compliance with the nominated 30m length "is very minor, in the order of only 4.1 m. In practical terms this minor non-compliance will have no effect on the day-to-day use of the proposed driveway."
Mr Varga disputes the outcomes forecast by Mr Steal at par 46. He says that the long reversing manoeuvres referred to by Mr Steal are unlikely to ever occur in practice given the low probability of two vehicles travelling in opposite directions within the driveway at the same time. In respect of the visibility splays, Mr Varga points out that the currently approved design itself does not make provision for such splays and that the proposed 3.5 m wide driveway will have the same driver sightlines as the currently approved development. He also gave evidence that the sightlines could be improved by providing a low-height fence on the common boundary with 49 Turner St and installing a convex mirror on the common boundary with 49 Turner St to provide visibility across the frontage of 47B Turner St. Mr Varga also suggested that a discrete travel signal system with two small lamps could be installed in the same position as the mirror which would display a green signal to entering traffic except when activated by an exiting vehicle.

Findings

In my assessment, the clear purpose of clause 4.3.10 of the DCP is to provide for a driveway capable of accommodating two vehicles travelling in opposite directions. The clause generally requires a separate 3.5 m wide driveway to each dual-occupancy or secondary dwelling but contemplates the approval of a shared driveway of 5 m minimum width in appropriate circumstances. I accept Mr Steal's evidence that the additional width required by clause 4.3.10 for a shared driveway was intended to provide for the passing of vehicles travelling on the driveway in different directions.
I reject Mr Varga's evidence that two vehicles passing in opposite directions at the same time was not contemplated by the Council when it approved the 4.7 m wide access handle. The email from Judith Portelli to the applicant on 8 October 2020 expressly stated that, in her view, allowing the 4.7 m wide driveway rather than the 5.0 m required by the DCP would still provide "ample space to enable 2 cars to pass each other from the rear dual occupancy" (Ex 2, p 58).
I accept Mr Varga's evidence that the probability of two vehicles travelling in opposite directions on the driveway at the same time is low. However, as Mr Steal pointed out, it is inevitable that this will occur during the life of the proposed development and when it does, the proposed reduction in the width of the driveway would inevitably require vehicles to reverse onto Turner St, an outcome clause 3.2.2 of AS/NZS 2890.1 says should be "prohibited wherever possible". It may also require lengthy reversing manoeuvres, as explained by Mr Steal, which would also be unsatisfactory.
As to the ability of two vehicles to pass on the approved 4.7 m wide driveway, I prefer Mr Steal's evidence that most types of vehicles would be able to pass safely at low speeds. The difficulty larger vehicles will experience in passing one another does not detract from the benefit of having a wider driveway for all other drivers.
Section 4.55(3) of the EPA Act requires the Court, in the determination of the Modification Application, to take into consideration such of the matters set out in s 4.15 of the EPA Act as are of relevance to the development the subject of the application. Section 4.15(1)(a)(iii) of the EPA Act requires the Court to take into consideration any development control plan of relevance to the development.
It is well established that the relevant provisions of a development control plan need to be taken into consideration as a "fundamental element" in or a "focal point" of the decision-making process: Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001); [2001] NSWCA 167 ('Zhang') (at [75], [77]). A provision of a development control plan directly pertinent to a development application is entitled to significant weight in the decision-making process but it is not in itself determinative: Zhang at [75].
Section 4.15(3A)(b) of the EPA Act is also relevant. That section provides that: If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority - (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development
Clause 4.3.10 of the DCP deals with access to dual occupancies and is therefore directly relevant to the development the subject of the Modification Application. That clause provides that each dwelling should "generally" have access by way of an individual driveway with a minimum width of 3.5 m. The clause recognises, however, that a shared driveway of a minimum width of 5 m may also be appropriate in some circumstances.
Clause 4.3.10 must be applied flexibly and the Court must allow reasonable alternative solutions that achieve the objects of the clause. However, as Moore J said in Kelly v Randwick City Council [2021] NSWLEC 68 (at [156], [157]), that flexibility does not provide a basis to permit what would be the complete setting aside or abandonment of the standard.
The access driveway proposed by the Applicant does not comply with the standards set out in clause 4.3.10 of the DCP. The 3.5 m wide driveway proposed meets the standard set for access to an individual dwelling but not that for a dual occupancy. The Applicant does not propose individual access to each unit in the dual occupancy nor does it propose shared access of the width suggested by the clause. Instead, it proposes a single access of 3.5 m in width.
There is no dispute that cars travelling in opposite directions cannot pass one another within a 3.5 m wide driveway. Increasing the width of the driveway to 3.6 m, as proposed by the Applicant at the hearing of the appeal, would not change this. The Council applied the provisions of clause 4.3.10 flexibly when, in granting consent to the approved development, it agreed to reduce the required width of the shared driveway from 5.0 m to 4.7 m. To approve the modification proposed by the Applicant would, in my view, involve the complete setting aside or abandonment of the standard for a shared driveway.

Conclusion

I am satisfied that the preconditions at s 4.55(2) of the EPA Act are met and that the Court, as consent authority, has power to grant consent to the Modification Application. However, I find that, on merit, the exercise of that power is not warranted as reducing the width of the driveway as proposed by the Modification Application will completely remove the ability of vehicles to pass one another in opposite directions and will inevitably result in vehicles having to reverse onto Turner St. This may require lengthy and difficult reversing manoeuvres at some times. While large vehicles may have difficulty passing each other on the currently approved driveway, I find that the majority of vehicles will be able to safely pass one another and would benefit from the continued provision of the currently approved wider 4.7 m driveway.
Given the adverse impacts of the proposed modification, I find that the Modification Application should be refused.

Orders of the Court

The orders of the Court are: 1. The appeal is dismissed. 2. Modification Application MOD-21-00162 which seeks consent to modify Development Consent DA-20-01245 for the subdivision of Lot 346 DP 7875 known as 49 Turner St Blacktown and the erection of a two-storey attached dual occupancy by reducing the width of the proposed battle-axe access handle is determined by way of refusal. 3. All exhibits are to be returned with the exception of Exhibits 1, A and B, which are retained.

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: 02 May 2022

Substantially the same development

As noted above at par [11], the Council contends that the Modification Application must be refused because the development as proposed to be modified is not substantially the same development as the development for which the Consent was originally granted. The Council says that when compared to the development for which consent was originally granted, the development as proposed to be modified would result in the following quantitative changes: 1. The width of the access handle to the dual occupancy dwellings would be reduced from 4.7 metres to 3.5 metres (being a reduction of 25.5%); 2. The width of the concrete driveway within the access handle would be reduced from 3.5 metres to 2.5 metres (being a reduction of 28.6%); 3. The reduction or deletion of landscaping within the area of the access handle; 4. The dwelling on the front lot is no longer proposed to be altered to accommodate the access handle; 5. There will be a reduction in the area of proposed Lot B by approximately 40 m2 and an increase in the area of proposed Lot A by a similar amount.
The Council also says that the Modification Application would result in a qualitative change to the approved development being that it would no longer be physically possible for two vehicles to pass within the access handle.
The Council submits that, taken together, material and essential features of the Proposed Development will change in such a way that the development as proposed to be modified will no longer be substantially the same development as that originally approved.
The Applicant argues that the development the subject of the Consent comprises the subdivision of the Site into two lots, the construction of a two-storey attached dual occupancy on the proposed rear lot and the strata subdivision of the dual occupancy development. The development the subject of the Consent will, the Applicant submits, be substantially the same development as the development for which consent was originally granted even if the width of the driveway is reduced as proposed and the other changes proposed by the Modification Application are made.
Section 4.55(2) of the EPA Act requires the Court to form the positive opinion of satisfaction that the development as proposed to be modified is substantially the same development as the development for which consent was originally granted. In Arrage v Inner West Council [2019] NSWLEC 85 ('Arrage') (at [27] to [28]) Preston CJ observed that in most cases the most instructive (but not the only) way to identify whether the modified development is substantially the same as the originally approved development is to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required.
I have set out at par [13] above the features of the development the Council relies on to establish that, in a quantitative sense, the development as proposed to be modified will not be substantially the same as the development originally approved. As noted above at par [14], the Council also relies on a qualitative change, being that it says it would no longer be physically possible for two vehicles to pass within the access handle.
In my view, however, the Council has focussed on one element of the Proposed Development rather than on a comparison of all the essential elements of the development as proposed to be modified and the development as originally approved: see Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [16]; Arrage at [24]. I find that the essential elements of the approved development are: 1. The subdivision of the Site into two Torrens Title lots; 2. The construction of a two-storey attached dual occupancy on the rear lot; 3. A battle-axe access handle providing access to the rear lot; 4. The strata subdivision of the dual occupancy development on the rear lot.
These essential elements will remain if the Modification Application is approved. The reduction in the width of the driveway, and the other quantitative changes relied on by the Council, do not, in my view, result in the modified development not being substantially the same as the development for which consent was originally granted. As for the qualitative change relied on by the Council, while the parties' experts agreed that the reduced width of the driveway proposed by the Modification Application will not be sufficient for two vehicles to pass, there was a dispute between the experts as to whether the width of the driveway as currently approved by the Consent is itself sufficient to enable two vehicles to pass. I deal with the resolution of that dispute later in this judgment. For now, it suffices to say that, in my opinion, even if I accept the Council's position, this change to one aspect of the approved development does not mean that the development as a whole (as proposed to be modified) does not remain substantially the same as the development for which consent was originally granted. Accordingly, I find that the Court does have jurisdiction to determine the Modification Application.

The reasons for the grant of consent

The Council originally contended that the Modification Application should be refused because the development, as proposed to be modified, would be inconsistent with the reasons for the grant of the development consent. However, at the hearing of the appeal, the Council conceded that as the Consent did not set out a statement of reasons for the grant of consent, the recent decision of Robson J in Feldkirchen Pty Ltd v Development Implementation Pty Ltd [2021] NSWLEC 116 meant that this contention could not succeed. In that case, his Honour held (at [70] to [71]) that the reference in s. 4.55(3) to "the reasons given by the consent authority" restricts the consent authority's obligation to consider reasons to those objectively identifiable reasons that are specifically produced by the consent authority when granting the original consent, rather than the background circumstances when the consent was granted. In the light of this decision, the Council did not press this contention and I agree that, as the Council did not give any specific reasons for the grant of the Consent, this aspect of s 4.55(3) does not apply in the circumstances of this appeal.

(2008) 166 LGERA 342

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