30 By virtue of cl43 and cl8 of Schedule 4 of the LEP the construction of roadworks on Birrell Street does not require development consent under Part 4 of the Act. Accordingly, the provisions of Part 5 of the Act apply. The roadworks are an "activity" as defined in s110 of the Act and the Council is a determining authority for the roadworks as it is a public authority whose approval is required to enable the activity to be carried out. Section 111 of the Act requires the determining authority, in its consideration of an activity, to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity. Section 112 states that if an activity is likely to significantly affect the environment the determining authority must first be furnished with, and consider, an environmental impact statement in respect of the activity.
31 Clause 228(2) of the Environmental Planning and Assessment Regulation 2000 (the EPA Regulation) sets out the factors to be taken into account when consideration is being given to the likely impact of an activity on the environment, in the absence of guidelines established by the Director-General:
(2) The factors referred to in subclause (1) (b) (ii) are as follows:
(a) any environmental impact on a community,
(b) any transformation of a locality,
(c) any environmental impact on the ecosystems of the locality,
(d) any reduction of the aesthetic, recreational, scientific or other environmental quality or value of a locality,
(e) any effect on a locality, place or building having aesthetic, anthropological, archaeological, architectural, cultural, historical, scientific or social significance or other special value for present or future generations,
(f) any impact on the habitat of protected fauna (within the meaning of the National Parks and Wildlife Act 1974),
(g) any endangering of any species of animal, plant or other form of life, whether living on land, in water or in the air,
(h) any long-term effects on the environment,
(i) any degradation of the quality of the environment,
(j) any risk to the safety of the environment,
(k) any reduction in the range of beneficial uses of the environment,
(l) any pollution of the environment,
(m) any environmental problems associated with the disposal of waste,
(n) any increased demands on resources (natural or otherwise) that are, or are likely to become, in short supply,
(o) any cumulative environmental effect with other existing or likely future activities.
32 The Council submits that neither the s111 nor the s112 function is capable of being performed by the Court under s39(2) of the Court Act, and can only be performed by the Council. The Council supports its construction of Part 5 of the Act by reference to the purpose of Part 5 being to allow self assessment of projects undertaken or regulated by public authorities; the absence of any merits appeal from an unfavourable Part 5 decision; the imposition under s112C of consultation and concurrence pre-conditions; the potential exercise of powers by the Department under s113(5) or the Minister under s114; the potential for the Court to be involved in making contestable decisions, including a decision whether to prepare or accept and environmental impact statement for exhibition; and the potential administrative issue for the Court Registry to become a place where environmental impact statements could be inspected under s113. The Council submits that there is no decision before that of Biscoe J suggesting that s39(2) of the Court Act attracts to the Court the functions and discretions of a determining authority under Part 5, and relies on the decision of Bignold J in Rundle v Tweed Shire Council (1989) 68 LGRA 308 rejecting the proposition that it was for the Court to determine whether an activity is likely to significantly affect the environment (and also dicta in Building Recyclers Investments Pty Ltd v Marrickville Council (2003) 131 LGERA 413 at [26]; Mirvac Projects (No 2) Pty Ltd v Concord Municipal Council (1993) 81 LGERA 441). The Council submits that even on the wide view of s39(2), which it submits has not been adopted by the Court of Appeal, the power to decide under Part 5 of the Act is not available to the Court on appeal; and that s39(2) refers to the matter that forms part of the subject matter of an application for development consent thus excluding development that, as in this case by virtue of cl43, may not be authorised or restricted by a development consent: since cl43 entirely excludes the road work from the purview of the development application, there is no relevant function of the Council for the Court to assume under s39(2).
33 The applicant submits that the issue of capacity under Part 5 of the Act was determined by Biscoe J, and was further addressed by Lloyd J in Goldberg v Waverley Council [2008] NSWLEC 49, who assessed the application under s111 of the Act and found that the proposed development was not likely to significantly affect the environment for the purposes of that section.
34 The proceedings before Biscoe J in Goldberg v Waverley Council (2007) 156 LGERA 27 were the Class 1 appeal in proceedings 10058 of 2007 against refusal of the development application for "Demolition of existing dwelling; subdivision of land into 2 lots; extension of local road; and new driveway". Biscoe J described the "matter the subject of the appeal" for the purposes of s39(2) in the following terms:
52 As to the first question, the matter the subject of this appeal, in my view, is the proposal to demolish the existing dwelling, subdivide the land into two parts and to provide vehicular access from Birrell Street as a result of the proposed roadwork. The "matter" the subject of an appeal is a wider concept than the "decision" the subject of the appeal: see the authorities cited at [33] above. Although the proposed roadwork does not require development consent, it is a vital part of the overall proposal and many of the council's reasons for refusing the development consent were to do with the proposed roadwork and the consent under s 138 of the Roads Act. Thus, in the particular circumstances of this case, the refusal of development approval, the proposed roadwork and the matter of a s 138 consent were inextricably intertwined such as to constitute the "matter" contemplated by s 39(2).
35 I agree with the applicant that the Council's contentions on s39(2) of the Court Act have been determined in the questions of law answered by Biscoe J in Goldberg v Waverley Council (2007) 156 LGERA 27. Several of the arguments put on behalf of the Council were considered, and rejected, by Biscoe J in those proceedings (at paragraphs 58-64). Biscoe J engaged in an extensive consideration of the authorities both in this Court and the Court of Appeal, providing reasons for his conclusion that the broad approach to s39(2) (Kogarah Municipal Council v Kent (1982) 46 LGRA 334; McDougall v Warringah Shire Council (No 2) (1993) 30 NSWLR 258; Sydney City Council v Ipoh Pty Ltd (2006) 149 LGERA 329) should be adopted. Biscoe J concluded:
The result of that interpretation, as articulated by Kirby P in McDougall at 264 is that "all the functions and discretions the council could have exercised when considering the application are open to the Land and Environment Court on appeal and not only those strictly necessary to the approval". Of course, the functions and discretions (as Cripps JA indicated in McDougall ) must have a relevant nexus to the matter the subject of the appeal in order to be "in respect of " that matter. I take this to mean that if a development application is refused and something has a relevant nexus to it, s 39(2) throws a blanket over both, that is, empowers the Court to deal with both.
36 There is no basis on which it would be open to me not to apply that approach to the interpretation of s39(2), which was confirmed by the decision of Lloyd J Goldberg v Waverley Council [2008] NSWLEC 49.
37 In these proceedings the proposed roadwork is a vital part of the overall proposal and the matter of the s138 Roads Act approval is as intertwined with the refusal of development approval as it was in proceedings 10058 of 2007, and s39(2) of the Court Act empowers the Court to exercise the function of considering an application for consent under s138 of the Roads Act. The application for approval of the proposed road works under s138 of the Roads Act was the subject of an assessment by the Council under s111 of the Act (at part 2.3 of the Development Assessment Report of 15 July 2009), and was the subject of separate recommended reasons for refusal (pp27-28). The exercise of the Part 5 function has the relevant nexus to the development application, and s39(2) empowers the Court to exercise it.
Proposed vehicle access
38 The proposed accessway is represented in the following extract from the plans:
39 The experts agreed that the proposed accessway design would not allow an opportunity to continue the road down to 364 Birrell Street; and that it would not be possible to construct a 5.5m wide road that could provide access to both 362 and 364 Birrell Street because the resulting gradient would be too steep.
40 The proposed accessway is 3.6m wide, and has a maximum gradient of 20%. Mr Hallam and Mr Jamieson agreed that a residential cul-de-sac would typically have a minimum width of 5.5m and two-way operation. The experts were in agreement that AS2890.1-2004 requires a gradient for non-domestic driveways of 20% and that the accessway complies. Mr Jamieson noted that this is satisfactory for short lengths; Mr Hallam noted that public roads within residential subdivisions would typically have maximum gradients of 15-17%.
41 The experts agreed that the gradient of the part of the accessway from the boundary of Birrell Street into the site is 24% for the first 2m, 28.5% for the following 10m, then a 2m transition section of 19.27% and then 15%; and that this is contrary to cl2.6.2 of AS2890.1 which provides for a maximum gradient of domestic driveways of 25% and across a property line or building alignment of 5%.
42 The experts agreed on a minor re-design of the accessway that would allow a B99 vehicle to travel over the accessway without hitting the roadway (Exhibit L), and a revised design showing adjustments to the width of the accessway to provide a clearance of 500mm at the edge (Exhibit M).
43 The experts disagreed on whether the width of the accessway would create safety issues, in particular whether the 500mm clearance was adequate to meet safety concerns if there were a pedestrian on the accessway at the same time as a vehicle. Mr Hallam's evidence was that a standard footpath is 1200mm and that 500mm is not sufficient for car to safely pass a pedestrian walking up the accessway; there would be safety concerns if a pedestrian walked down the accessway and not see a vehicle. Mr Jamieson disagreed, on the basis that the proposed accessway is intended for access to only two properties and as such the predicted volume of traffic would be insignificant. Mr Jamieson estimated that there would be one pedestrian an hour, or two in peak times. On the assumption that both lots in the subdivision were developed, there would be 18 vehicle movements per day, together with a few errant users, taking it to 25-30 per day. He was of the opinion that at that rate there would not be unacceptable conflict between vehicles and pedestrians, and that most pedestrians would take the more direct route from Tamarama Park up the flight of stairs on the southern side rather than the more indirect route up the zig zag stairs.
44 On the heritage issues, Mr Brady and Dr Lamb agreed that the vegetation proposed to be removed in construction of the proposed vehicle access is of low conservation significance. There was agreement that the construction of the vehicle accessway would not have any material impact on items of cultural significance or any recognised or documented items of cultural significance; the proposed development does not significantly change the ability of pedestrians to access the Landscape Conservation Area; the vehicle accessway is of low visibility from Tamarama Park and the existing accessible parts of the extension to the park in the proposed Landscape Conservation Area; and the construction of the vehicle accessway will result in a small decrease in the amount of available open space for use of the public.
45 Mr Brady's overall position was that the proposed vehicle access and the form of the proposed residence have a significant impact on the cultural significance of the setting and extension areas of the Tamarama Park Landscape Conservation Area. The primary focus of his evidence in this regard was on the pattern of pedestrian access through direct and gradual ascent routes through switchback zig zag pathways, the latter providing a low impact on the setting, maintaining slope stabilisation and assisting erosion control, and which are characteristic of the extended Tamarama Park and also of the Landscape Conservation Areas to the southern end of Bondi Beach and Bronte Gully. Construction of the vehicle accessway would prevent continuation of these pathways to the upper areas of the reserve, which has an impact on the existing significance of the setting and the potential for future enhancement of this significance. Mr Brady was of the opinion that the vehicle accessway is of substantial visual impact when ascending and descending the south western extent of the road reserve which is an extension area to the Landscape Conservation Area.
46 Dr Lamb was of the opinion that the appropriateness of the vehicle access in the road reserve has previously been determined by the Court; and that the circumstances surrounding the potential addition of the road reserve to the Tamarama Park Landscape Conservation Area were known in previous proceedings and it was not considered that the road unacceptably compromised the heritage values of Tamarama Park or the proposed extension of the Park. The vehicle access would not make a significant difference to the ability of pedestrians to access the Park via the existing road reserve, and future improvements to that access could be made regardless of the presence of the proposed vehicle access over part of the reserve; the quality of the existing lookouts based on the view from it could be improved by the construction of the access is proposed, to the benefit of active and passive park users alike. In relation to the proposed addition of the road reserve to the Park and its incorporation into the proposed Landscape Conservation Area, he noted that the road reserve does not contain or affect either of the features identified as being of heritage significance to be included in the extension of the Park into the larger landscape conservation area. There are no policies and programs of work proposed to the road reserve in the Tamarama Park Plan of Management, other than to note that it be retained as one of 10 existing access ways and potentially an area for vegetation regeneration, and the proposal is not in conflict with either of these objectives. The vehicle access is of minimal visibility from Tamarama Park and places to the east and north, being effectively tucked in behind the dwelling. Dr Lamb considered that the proposed retaining walls would not block the view up the road; it would not be possible to see them other than possibly at a point where the path diverts.
47 The expert planners disagreed as to the impact of the vehicle accessway. Mr Nash was of the view that the proposed roadway and associated building works, including retaining walls, are substantial and will alienate land zoned for public open space purposes; the proposed works will have a high visual impact on pedestrians and others using the footpath and stairs as a primary access point for the Park and beach; there is the potential for pedestrian and vehicle safety conflicts; and that the proposal will result in a significant and adverse change to the existing informal character of the unmade portion of Birrell Street that would be incompatible with the purpose of its public open space zoning and the objectives of the 6(a) zone.