Evewall v Cessnock City Council [2009] NSWLEC 1448 | Case summary

JUDGMENT Introduction 1 The applicant has consent to build a seniors living development on land at 6 Wine Country Road, Nulkaba and 16 Dover Street, Cessnock subject to conditions. This appeal pursuant to s 96(6) of the Environmental Planning and Assessment Act 1979 concerns conditions 74, 80 81 and 82 and 83 imposed by Cessnock City Council's on April 2009 in respect of DA 8/208/537/1 via a modification application DA8/208/537/2. 2 The hearing commenced on site and this enabled a view of the property and surrounding area and an opportunity to hear the residents' evidence. It continued in Maitland Courthouse until it was adjourned to allow the parties' single traffic expert, Mr Waugh, time to conduct a further traffic survey and prepare a supplementary traffic report. It resumed today in Sydney for completion of the evidence and submissions. 3 I was assisted during the hearing by the expert evidence of Mr Fielding the applicant's town planner and Mr Warnes the respondent's town planner and as I said the parties' single traffic expert Mr Waugh. I note the evidence of the many local residents who attended the onsite hearing and provided oral and written submissions in respect of their concerns. 4 The agreed facts and issues of this appeal are detailed in the parties' statements of facts and contentions filed in the proceedings and refined during the hearing. Today, I am advised that the issue in relation to the main access to the site from Wine Country Drive is resolved by an amended condition 74 as shown in the concept plan in Exhibit C. I have also been told that council no longer presses condition 83 of the amended consent. 5 The remaining issues raise the following questions for determination: a Is the amended development application for unrestricted vehicle access from Dover Street substantially the same development as that originally approved by the council in DA8/208/537/1? b If it is substantially the same development, is it acceptable to amend the conditions of the consent to allow such unrestricted vehicle access from Dover Street? 6 Following a consideration of the evidence and submissions and the relevant provisions of the Environmental Planning and Assessment Act 1979 (EPA Act) I am satisfied that the modification application is substantially the same development as that approved by the council on 24 June 2008. Therefore, I approve the modification of condition 74 as proposed by the parties in respect of the access from Wine Country Drive. However, I am not satisfied, on a merit assessment, that there should be unrestricted vehicle access to the site from Dover Street. Accordingly, I do not approve a modification of the conditions to allow unrestricted vehicle access from Dover Street other than for the purpose of the demolition of dwelling 16 during construction of the development and for emergency vehicles. I set out the reasons for my decision below. Is this modified development substantially the same development as that approved by council? 7 The council submits that this modified development is not the same development as that approved by the council. To appreciate that fact, council submits I must undertake a comparison of the applications from both a quantitative and qualitative perspective. I am referred to the court's decision in Moto Projects (No 2) Pty Limited v North Sydney Municipal Council [1999] NSWLEC 280, in particular Bignold J's comments at para 56 of Moto which read: "The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted)." 8 Council contends that the introduction of a secondary access point for vehicles at Dover Street significantly changes the approved development. Apart from physical changes to the development including the removal of the locked gate at the Dover Street access and the introduction of traffic calming measures along the access road, council submits there will be a number of qualitative changes. These include a loss of amenity for the local residents caused by an increase in traffic (up to 20 new car movements during the peak period each day) within the Dover Street precinct, glare from vehicle headlights, vehicle noise and privacy issues for the properties adjoining the access way. The residents of the area also raised in their submissions a concern for the safety of the pedestrians and school children that regularly walk in the area and alight from the school bus near the Jurd/Allendale Street intersection because of the increase in cars if unrestricted access is approved. They were also concerned about any further traffic congestion and delay at the Jurd and Allandale Street intersection onto Wine Country Drive. 9 In support its contention council refers me to its assessment report in respect of the modification application (at tab 5 of exhibit 4) that describes the adverse impacts caused by unrestricted vehicle access at Dover Street. Of particular concern to the residents is the fear that the opening of this access point for all vehicles from the site would reintroduce a "rat run" through their residential community to the shopping area in Cessnock. 10 It was common ground between the council and the residents that all vehicle access to the site should be from Wine Country Drive in order to avoid unacceptable traffic congestion in the Dover street precinct and an unacceptable loss of residential amenity. Council submits that an assessment of the quantitative and qualitative changes demonstrates that the modified development is not substantially the same as was approved by the council. 11 As to be expected the applicant contends that the amended application is substantially the same development as that approved by council. The applicant submits that the modification does no more than introduce a secondary access point to the site which at its highest will generate a low level increase in traffic movements. The applicant's evidence is that any traffic issues generated by unrestricted vehicle access from the Dover Street access will be ameliorated by the traffic calming measures proposed including the onsite traffic management plan which will encourage cars to use the Wine Country Drive access. The applicant submits that the residents' fear of a loss of amenity will not be realised and the traffic evidence of Mr Waugh and their planning evidence from Mr Fielding support this. Finding 12 Whether the amended development is substantially the same development as that approved by council and whether the amended development is acceptable on its merits are two discrete questions. 13 In answering the first question I have compared the proposed amended development with the approved development and considered the evidence and the submissions of the parties. On that basis I am satisfied that the amended development is substantially the same development as was originally approved by council. The evidence demonstrates that the amended development remains a retirement village with its main vehicle access fronting Wine Country Drive and a secondary vehicle access point at Dover Street. Now that I am satisfied of that fact I will deal with the merits of unrestricted vehicle access at Dover Street and the other merit issues raised by the council. Merit Assessment 14 There are two main contentions: the first is the acceptability of the traffic and amenity impacts generated by unrestricted vehicular access from Dover Street and the second is whether unrestricted vehicle access achieves better connectivity between the development and the adjoining residential area in the Dover Street precinct. Traffic 15 Mr Waugh, the parties' single traffic expert, evidence addresses the first contention. His evidence is that there is no traffic need for a secondary vehicle access point at Dover Street because the main access at Wine Country Drive adequately services the whole development. His evidence is that the amended condition 74 as described in the concept plan exhibit C adequately accommodates the access and egress of all vehicles to the site. 16 Despite that evidence he was asked to assess the environmental capacity of the Dover and Church Street area for increased traffic if unrestricted vehicle access from Dover Street is approved. His evidence is that the area can easily accommodate the anticipated increase in traffic which is on his calculation may be up to twenty new vehicles movements during the peak period, one every three minutes. Although he did add that unrestricted access would increase in traffic and delay at the Jurd /Allandale Road intersection, particularly, for right hand turns out of Jurd Street onto Wine Country Road. 17 When asked if he supports the inclusion of traffic calming measures such as chicanes being placed at the Dover Street access to help reduce any adverse amenity impacts for the neighbouring properties such as noise from speeding vehicles using that access point, he agreed. However, when asked about the onsite traffic management plan to help co ordinate all traffic to the main access he had no direct experience with the operation of onsite plans of management to co-ordinate traffic with respect to retirement development. However, he did tell me that the RTA of late encourages developments such as hospitals; to have such onsite traffic management plans. In his opinion if it was introduced in this development it may achieve about a 10% benefit in co-ordinating traffic on this site through the main access at Wine Country Drive. 18 Although Mr Waugh was not directly asked to comment on connectivity he did say that he thought some of the local residents in the Dover /Church Street precinct might use the Dover Street access point to get to Wine Country Drive. However, he changed his evidence when he was informed that the internal roads of the development are to remain private roads and that non-resident traffic on the site will be discouraged. 19 Mr Waugh's evidence was based on limited survey data. In assessing the existing traffic in the area he did not take into account the traffic generated by the playing fields at the end of Dover Street because he did not undertake a survey when they were in operation. Therefore I have no expert evidence to contradict the evidence of the local residents who told me; when the playing fields are in use there is an increase in traffic and delay for those vehicles turning right at the Jurd Street intersection 20 Several of the residents who gave evidence onsite emphasised the already congested traffic at the Jurd /Allendale intersection They were clearly of the view that unrestricted vehicle use of the Dover street access will result in an unacceptable increase in traffic congestion and noise for that local area. Of particular concern for many who addressed me on site is the fear that the Dover Street access from the development will be used as a rat run and backstreet entry for cars into town. According to their evidence, the Dover Street access to Wine Country Road was made a cul-de-sac in recent years to address this exact problem: to stop vehicles using Dover and Church streets as a rat run into town. 21 While Mr Waugh did not accept the applicant's submission about the likelihood of a rat run he did not have any basis for discrediting the resident's experience. Connectivity 22 Both Mr Fielding and Mr Warnes agree that the proposed development should inter-relate or connect with the adjoining residential area in Dover-Church Street. There is no dispute between the experts that this makes good planning sense. Both accepted that this is currently achieved at the main access off Wine Country Drive but the experts had different opinions as to how best to achieve connectivity between the development and the Dover and Church Street precinct. 23 In Mr Fileding's expert opinion connectivity is best achieved by an extension of the traffic grid for the residential development into the site at the Dover street access point. In his view this will avoid isolation and encourage integration between the new development and the existing residential community that adjoins the development. His evidence is that the development currently presents as a "gated estate", which in his opinion is a draconian design representative of the bad town planning of the 70s and 80s. In his expert opinion, that style of development does not achieve connectivity or good planning. 24 Mr Fielding supports the amendment to remove the locked gate and to allow unrestricted vehicle access at Dover Street as he says this will achieve better connectivity and supplement the pedestrian and cycle access already approved. With respect to the glare from car headlights and noise associated with the increase in traffic, Mr Fielding says the residents will perceive a change to their existing amenity but in time their fear of noise, headlights and a rat run will be proved wrong. 25 Mr Warnes, council's planner who is also supportive of connectivity says that it was better achieved with restricted vehicle access at Dover Street. His evidence is that the council approved pedestrian walkway and cycleway adequately achieves connectivity and is the best way to integrate the residents of the new development with the existing residential community. 26 Mr Warnes submits that his evidence is supported by the fact that unrestricted access at Dover Street is not needed, there is no planning reason or traffic reason to further reduce the amenity of the existing residents .He relies on Mr Waugh's expert evidence that the main access at Wine Country Drive adequately services all traffic to the development. In his expert opinion better community relations are achieved if pedestrian and cycling access is allowed rather than cars. Mr Warne's evidence is that unrestricted access will result in an unacceptable loss of amenity for the residents of Dover and Church Streets, even with the chicanes he believes it is likely that unrestricted vehicle access will result in a rat run for cars into town. 27 In support of his submission that pedestrian and cycle access provides adequate connectivity I am referred to New South Wales Planning guidelines for walking and cycling dated December 2004(exhibit 11) that he submits supports connectivity through pedestrian and cycling access rather than cars. However, while the guideline does support connectivity through pedestrian walkways and cycle ways and public transport rather than cars I accept the applicant's submission that this document cannot be read in isolation but must be read with other relevant strategies which also promote connectivity by vehicular access. I do not give the Guideline determinative weight in this matter. 28 I was able to understand the residents' concerns through the evidence they gave onsite and their written submissions. I appreciate that a large number of people attended on the day to convey to me, both orally and in writing their particularly strong objection to unrestricted vehicle access from the Dover Street access point. 29 I note the evidence of the adjoining owner who addressed me at the hearing and talked about the new development's ability to co-exist harmoniously with existing development. I found her oral and written evidence compelling. Her evidence is that this is a quiet residential community and was not intended to be a through fare and that is what will result if this unrestricted access is approved. 30 Many other residents who gave evidence onsite focused on the existing residential area with its quiet community of residents who wish to continue to enjoy their current amenity and who do not want an increase in traffic and congestion at the intersection at Jurd Street. Collectively the resident's voiced concern for the safety of pedestrians and children who use the local bus stop and hall and local playing fields. In accepting that the development next door is for 177 dwellings with conditions that in some way protect their amenity (the locked gate and restricted access to emergency vehicles) they do not want those conditions removed.

Conclusion 31 I cannot accept Mr Fielding 'evidence that unrestricted vehicular access at Dover Street will better integrate the development with its neighbours. The relationship between the development site and the adjoining residential area is not equal. The applicant's own evidence supports that fact. The local residents will not have the same opportunity to use the private road system of the new development to achieve access to Wine Country Road. 32 This development cannot be an extension of a public road grid because the internal roads of the development are private. The evidence is that the applicant will not encourage local traffic from the Dover Street-Church Street area to use the roads on the new development if there is unrestricted access at Dover Street. 33 The connectivity discussed by the experts, particularly Mr Fielding, through an extension of a road grid, in this case has little weight. There is no opportunity to extend the public traffic grid into the development because it is private land. 34 I accept the council's planning evidence that the approved pedestrian/cycle access achieves effective and adequate connectivity between the new development and the old residential area in the particular circumstances of this case. The locked gate that can be opened for emergency vehicles will allow a practical secondary access point when it is needed but it will be locked when it is not necessary to use it for emergency reasons. This will reduce traffic and congestion that would occur if the gate were removed and the access opened up to all vehicles. While I accept the traffic evidence is that the Dover street area can cope with the increase in traffic the question remains why should it? This secondary unrestricted vehicle access, based is on the traffic evidence is not necessary. 35 I accept that pedestrian and cycling access will provide for an opportunity for people to walk through the neighbour's residential area without causing any adverse impact on the existing amenity of the residents. 36 The council submits that the planning principle in Pafburn v North Sydney Council [2005] NSWLEC 444 is on point. It deals with the assessment of impacts on neighbouring properties and sets out criteria that are useful guidelines when accessing impact and I have considered that planning principle in my assessment of the merits of this matter. In this case, the neighbours will perceive a change in their amenity by the development of 177 units, even if this secondary access point remains restricted to emergency vehicles. There will be a loss of their current quiet amenity simply by the fact that 177 units will live next door. This change has been assessed by council in accordance with the relevant matters under section 79 C of the EPA ACT and it has been determined after notification and a consideration of the submissions received that the development be approved subject to conditions. 37 The application proposes further change that will on the evidence have some traffic and amenity impacts for the existing residents in particular an increase in the traffic congestion and delay at the Jurd Street intersection. Mr Fielding says the residents will perceive a change but they will get use to it. However, there is no planning or traffic reason on my assessment of the evidence to require them to lose any further existing amenity than is necessary. 38 The question that arises, why have the secondary access for unrestricted vehicles? Connectivity says Mr Fielding, and an extension of the traffic grid. 39 However, I do not accept that the evidence supports a finding that the residents will feel better connected to the new residents if there is unfettered vehicle access at Dover Street by the removal of the locked gate. They would be required to enter private roads, which will not be encouraged, and I do not believe that they will do it. 40 Having considered the evidence and submissions and the relevant matters in s79C of the EPA Act I do not approve the unrestricted access of vehicles from Dover Street or the removal of the locked gate. It is not necessary and on the evidence, the private road system is better integrated with the existing residential community by allowing pedestrian and cycling access, as the conditions require. 41 With respect to the use of the Dover Street access for the demolition of the dwelling at number 16 I am satisfied on the evidence that it is appropriate that this be allowed during the construction of the development and that needs to be addressed in the conditions. For obvious reason the use of the access at Dover Street for emergency vehicle is appropriate.

Evewall v Cessnock City Council

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Judgment (14 paragraphs)

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Cases Cited (2)