James Patrick Doyle v Hornsby Shire Council

Land and Environment Court (NSW)|2016-10-28|Before: Exhibit J

JUDGMENT

COMMISIONER: In October 2015 the Applicant, James Doyle, purchased a battle axe allotment known as Lot 12 in Deposited Plan 735549, 80A Manner Road, Hornsby (the site). It is accessible via a common driveway that serves adjacent properties at 80, 82, 84 and 86 Manor Road.
Some years before his purchase of the Site, on 20 December 2001, Hornsby Shire Council had granted development consent (DA/1825/2001) for the erection of a dwelling house, swimming pool and associated works on the land (the consent). The consent contained a deferred commencement condition in respect of access. It required the submission of engineering plans complying with the specifications in Australian Standard (AS) 2890.1.2004 - in particular, a driveway design with a maximum gradient of 1:4 (25%) and maximum transition for gradient change of 8% per plan metre, noting that the gradient of the inside edge of any internal curve was to be a maximum grade of 25%. According to the agreed facts the previous owner had obtained Council approval for an engineering design that complied with the Council's deferred commencement condition. It necessitated a 3.4 metre elevated structure on the bend of the driveway between chainage 21 and 40 because there is a fall of approximately 40 metres across that portion of the site (exclusive of the right of way/ driveway).
On 26 February 2016 the Applicant sought approval from the Council to amend the consent to allow for an alteration of the approved driveway to more closely follow the natural slope of the land. The new design exceeds the maximum 25% gradient prescribed by the AS2890.1.2004 (which the Council has adopted as the appropriate gradient in the Hornsby Development Control Plan 2013 (HDCP)). The detail of the modified driveway is shown on the plans dated October 21, 2016 (Exhibit A), and drawings 5A and 5B prepared during the hearing by Angelo Vardouniotis, the Applicant's engineering consultant (Annexure D to his Statement of Evidence dated 9 February 2017 (Exhibit J)).
Mr Doyle's modification application (1825/1001/A) under s 96(1A) of the Environmental Planning and Assessment Act 1979 (EP&A Act) to modify the consent 1815/2001 was lodged with the Council on the basis that the development involved minimal environmental impact. As such, it did not need to be formally notified or exhibited in accordance with the provisions of the HDCP. Before the Council had determined the application, Mr Doyle appealed to the Court under s97 of the EP & A Act on a deemed refusal basis. It was allocated to the residential stream of the Court's Class 1 jurisdiction and dealt with under s34AA of the Court Act.

Issues

It seems to me that there are two questions to be answered in order to resolve these proceedings : 1. Are the plans before the Court sufficiently detailed to allow for a proper assessment of this application? 2. If the answer to question 1 is yes) does the variation of the AS in this particular case result in a driveway design that is safe and environmentally sustainable?

The Council's position

In brief, the Council contends on the evidence that the relevant gradient prescribed by the AS (adopted by the Council's HDCP) is achieved in the approved design of the driveway; and on that basis there is no justification to vary that standard. The Council is critical of the plans provided by Mr Doyle: and, it submits that at this DA stage the detail remains inadequate for a proper assessment of the amended driveway design. Council contends that the Applicant has not discharged its obligation to satisfy the Court that the proposed amended design is both safe and environmentally sustainable.

The Applicant's position

The Applicant contends that the design is substantially in accordance with the AS in that the departures from that standard have been certified by an appropriately qualified and experienced professional engineer. Therefore, the Court can be satisfied that the proposed gradient at 34.05% for this domestic driveway is both safe and environmentally sustainable. Mr Doyle also submits that the modification should be allowed on the basis that the modification represents a safer and more environmentally sustainable development than the approved driveway in the current consent. According to Mr Doyle, the approved driveway design is "prohibitively expensive", requiring expenditure that is disproportionate for a residential property, having effectively sterilised the development of the property since work commenced 10 years ago. He submits that the evidence given by Mr Vardouniotis is to the effect that the gradient design outlined in the amended plans dated 21 October 2016 is satisfactory. A 34.05% maximum gradient may be used safely through appropriate surface treatment and design.
Mr Doyle further submits that the Court, in cases such as Wiggin v Pittwater Council [2006] NSWLEC 286 at [11] as well as other councils have, in the past, accepted a gradient of 33% as acceptable and the facts in this case support such a decision. With respect to the adequacy of the final plans before the Court, Mr Doyle contends that they provide sufficient information to allow for the approval of the modification, subject to the provision of detailed plans at the construction certificate stage.

The adjoining landowners' submissions

Although the original application was not required to be notified to nearby and adjacent property owners, in an amended form it was, in fact, notified from 2 September until 20 September 2016. This notification generated an objection from the owners of the property at 80 Manor Road on the basis that an approval of the driveway would impede access to that property over the existing easement. To that end the owners of 80 Manor Road did not consent to the Applicant's modification application to use their land in the way proposed. It was conceded by Mr Doyle at the conclusion of the hearing that without such consent the Court was unable to make final orders. I was invited to make findings in respect of this application pending the resolution of the access issue in the Applicant's related Class 3 proceedings under s 40 commenced but not yet determined.
As it happened, on 3 April 2017, the Court received correspondence from the Applicant advising that consent to the lodgement of this application from the owner of 80 Manor Road had been obtained and the objection to the use of that land had been withdrawn. Needless to say, the owner's consent to this application removes any legal impediment on that basis to an approval of the proposed modified driveway.
The other neighbour, at 82 Manor Road has filed a submission supporting the application. He believes that the proposed 1:3 slope of the driveway delivers a better outcome than the approved driveway; and is happy to facilitate a refinement of the design over his right-of-way, if appropriate.

The hearing/expert evidence

As is required by s34AA of the Court Act, this matter commenced with a conciliation that I facilitated. It involved a site inspection with the parties and their witnesses at that time. As that process did not resolve the appeal, the conciliation was terminated and the matter proceeded immediately to hearing in the Court. Shortly thereafter, the applicant requested an adjournment in order to obtain more detailed plans and further expert evidence in respect of the application. The Council also needed to retain a further expert to address this issue. This meant that the appeal hearing was adjourned for a period to accommodate this additional evidence.
By the conclusion of the hearing, the Applicant had adduced written and oral evidence from three different engineering witnesses. Those experts were: Anthony Grieve (Statement of evidence (Exhibit C)); Piran Tretheway (Statement of evidence (Exhibit D)) and Angelo Vardouniotis (Statement of evidence (Exhibit J)).
Mr Grieve and Mr Tretheway conferred with the Council's witnesses, Mr Clare and Professor Yandell, an engineering consultant, for the purpose of the preparation of a joint report (Exhibit E).
As the Applicant identifies in his written submissions (AWS) dated 13 February 2017 at [3.3], the traffic statement of Garry Kennedy served by the Council was ultimately not relied upon and the evidence of Mr Kennedy has been withdrawn. (T 28/10/16 p4 L27-35).

Mr Clare's evidence

At the hearing objection was taken to the Mr Clare's evidence being received as expert engineering evidence. The Applicant did not think he was an expert. I ruled against the Applicant's objection and have been asked to explain my ruling (AWS at p6). Mr Doyle's request for my reasons as set out at p6 of the AWS is reproduced below: "Mr Clare has been ruled to be an expert by the Court during the hearing against the opposition of the Applicant. In large part the Court had the benefit of evidence from the bar table that he had appeared as an expert in the Court for 15 to 20 years. The Applicant refers to Dasreef Pty Ltd v Hawcher [2011] HCA 21 which requires that the expert must have "specialised knowledge based in the person's training, study or experience "and that the evidence of the witness "is wholly or substantially based on the knowledge". The Applicant requests reasons for the Court's decision in this regard as the admission of evidence as expert evidence where in error substantially denies the Applicant natural justice, confuses the joint conferencing to which Mr Clare was admitted over the opposition of the Applicant and substantially increases the costs to the Applicant. The increased costs are caused by the need to chase down all suggestions without any professional distinction between matters of substance and issues of minor importance or typographical errors.
That said, the Applicant then (it would seem) concedes in the next paragraph of his written submissions that he has in fact been provided a sufficient opportunity throughout the hearing to answer Mr Clare's concerns. He states "Mr Clare's concerns have been well answered in the "hot tub' examination and by the reports of the Applicant's expert including the report of Mr Vardouniotis".
In the ultimate, the Applicant invites me to define the area of expertise of Mr Clare if it is to be given weight but presses his submission that "no weight should be given to Mr Clare's evidence as he was unable to properly assist the Court because he had admitted that he had not previously designed such works and therefore was unable to sensibly comment on the deign decision made in the application" (AWS at p7).
The transcript dated 28 October 2016 records at pp17-20 an exchange among Mr Nash of Counsel for the Council, Mr Doyle and me in respect of Mr Clare's evidence. The transcript records that my attention was drawn to Mr Clare's summary Resume attached to his Statement of Evidence (Exhibit 3) and a more comprehensive explanation in a document was handed to the Court at that time. My attention was drawn to the fact that Mr Clare is presently employed by the Council as its Development Engineer. His statement for the proceedings had been prepared in accord with the Expert Witness Code of Conduct provided in Schedule 7 of the Civil Procedure Rules 2005 and it states at the outset that he has agreed to be bound by those Rules and the Code.
At the time I was referred to Mr Clare's Resume which records his engineering surveying qualifications obtained in the early 1970s, and his extensive experience from 1977 to date in various roles at councils in New South Wales. As a development engineer with Gosford City Council between 1989 and 1999 and with Hornsby Shire Council since 1999, he has been required to assess engineering plans for compliance for vehicular and pedestrian access for DAs and other civil engineering works pertaining to developments. He has been a Court expert giving evidence on vehicle access on at least 10 occasions. While that experience in Court does not, of itself, elevate him to the role of expert (Dasreef) I am satisfied that his extensive experience is both relevant and current therefore helpful to the Court in understanding the issues in this case. In short, I am satisfied that Mr Clare has "specialised knowledge" of domestic driveway design by a combination of "training" and "experience" gained over nearly 40 years.
Mr Doyle accepts that Mr Clare has qualifications as an engineering surveyor which equips him to measure and set out engineering works (T 28/10/16 at p17 L34-46). However, he does not believe that that Mr Clare's expertise allows him to comment on driveway design and functionality. He submits his Certificates obtained since leaving school give him no training. Mr Doyle is also critical of Mr Clare's Statement of Evidence. He submits it does not provide the basis of his assumptions but rather religiously follows the contentions without analysis. It is submitted he is simply an advocate for Council.
I am afraid I cannot agree. Mr Clare's statement of evidence, while succinct, expresses opinion about the issues in contention based on his understanding of the plans and details which were available at that time (since amended ) as assessed against the relevant Australian Standards and the Council's controls on the facts of this case. The measurements Mr Clare refers to in his evidence both written and oral are reliable, given his expertise as an engineering surveyor and relevant to the issues. Such evidence was tested in lengthy cross examination by Mr Doyle. Mr Clare was unshaken in his resolve to provide an objective assessment of the proposal.
As I said when I admitted his report and his comments in the joint report, ultimately I must weight up his evidence with all of the other expert and non-expert evidence and attach appropriate weight to each. Mr Clare does not pretend to be a friction expert nor an engineer with the same academic qualifications as other experts who addressed the Court. Despite that, I am satisfied on the basis of his Resume that his evidence is of an expert engineering surveyor who for the last 40 years has gained experience in the assessment of vehicular access to residential developments and other civil engineering matters. He is in my opinion a well-qualified expert to express an opinion on the issue that he was called to address. They are the reasons why his evidence has been accepted by the Court.
Having dealt with that issue the next task is to assess all of the evidence. Ultimately, I place most weight on the evidence given by Mr Doyle's' last witness, Mr Vardouniotis, for the reasons that follow.

Engineering evidence

Late in the hearing, the Court granted Mr Doyle leave to rely on the expert evidence of a further structural and civil engineer - Mr Vardouniotis. After a site inspection on 2 February 2017 and what he describes in his report as "…a preliminary review of the proposed geometry design described in drawings DA 1825/2001/a sheets 1 to 5 (Annexure D Exhibit J), Mr Vardouniotis concluded that notwithstanding the 34.05% proposed gradient between chainage 0 to 21 metres the remainder of the proposed driveway gradients listed on table A (page 2 of Exhibit J) would be deemed to comply with the AS/NZS2890.1.2004 standard; albeit, the proposed gradient of 26.11% between chainage -4.2 m to 0 is only marginally over the 25% deemed to comply requirements.
Taking into account the existing constraints of the topography of the Site Mr Vardouniotis told me that in his opinion the proposed gradient design outlined on the drawings in Annexure D of Exhibit J were satisfactory subject to the following: 1. The driveway surface where designated at 34.05% should be deeply grooved with an exposed aggregate finish or similar to provide maximum traction. The question of traction has been addressed in the expert report dated 2 August 2016 prepared by Anthony Grieve (Exhibit C). 2. The driveway shall be suitably signposted with a maximum speed limit of 5 km/per hour. 3. The crash barrier at the bend in the driveway shall be designed in accordance with clause 3.8 of AS/NZS 1170. It would be prudent to allow an additional safety margin in the design taking into account the 34.05% gradient. 4. The driveway should be used responsibly at all times.
Despite his assessment, Mr Vardouniotis agreed during his oral evidence which was the subject of cross examination that he had only addressed the centre line proposed driveway gradients and changes of grade at gradient transition points. He accepted that given the cross fall, on the driveway edge the gradients at those points may be in excess of 35%. He also accepted that further detailed plans would need to be prepared by a suitably qualified engineer although he was "reasonably confident" that a solution could be found but it would have to exceed the 25% and be in the vicinity of 34%. He accepted that the design might require some elevation on the bend up to one metre to provide appropriate access and to reduce the cut of the proposed driveway between 0 and 4.2 chainage.
Earlier in the hearing Mr Doyle had relied upon the engineering evidence of Mr Trethewey (Exhibit D). While Mr Trethewey accepted that a maximum gradient of one in three (33.3%) was acceptable for the straight section of the driveway, subject to the provision of a suitable skid resistance surface, after review of the design at that time he was not able to support the proposed design.
In the joint report Mr Tretheway, Mr Clare, Professor Yandell and Mr Grieve (Exhibit E) all agreed that the further amended plans then being considered were not appropriately authored and that the plans (and any future plans) must be prepared by a suitably qualified professional. They also agreed that the further amended plans did not provide sufficient information to assess whether the proposed "cut" at the top of the ramp would affect the existing driveway access to the neighbouring property (number 80). The concern was that there would be scraping of cars entering number 80 in some areas of their legal easement to access the site. All of the experts agreed that further plans, showing sections through this area clearly identifying any proposed cut were required.
Importantly, these experts (Mr Trethewey and Mr Clare) agreed that for the curved sections of the ramp (such as the proposed section between chainage 20 to 40), the critical longitudinal section to which the maximum grading criteria should be applied, was the inside edge of the driveway. However, the further amended plans did not clearly identify the inside edge of the driveway. The evidence before the Court is that further swept path analysis of the longitudinal section is required.
As discussed earlier, Mr Vardouniotis did not assess this critical area of the proposal, namely the inside edge of the driveway. His assessment was only in respect to the centre line gradient and transitions.

Surface of the driveway

Two experts gave evidence about an appropriate surface for the driveway. Mr Grieve and Professor Yandell. Mr Grieve's statement of evidence is (Exhibit C) and Professor Yandell's Statement of evidence is (Exhibit 4). Both experts participated in a joint report (Exhibit E).
Both experts agreed, given the slope of the land, that a stair down the centre of the ramp should be incorporated into the design. That stair was accommodated in the amended application. However, those experts disagreed about the safety of the driveway, particularly in wet weather for normal vehicles driving up the steep sections. Their respective positions are set out in the joint report and were the subject of concurrent evidence. However, during cross examination of Professor Yandell I was told that, based on the pendulum testing by Mr Grieve, if the friction coefficient was 0.45 then the driveway would be safe. This could be achieved by the application of crushed bauxite, such as that used before toll gates on the Harbour Bridge or on expressways to slow vehicles down. Professor Yandell's only concern was that if applied, that material should be maintained because over a five-year period it lifts with use.
The Applicant agreed to a condition being imposed on his consent requiring such surface as prescribed by Professor Yandell or equivalent to achieve the 0 .45 friction coefficient level.

Consideration

Mr Doyle submits that the proposed modified driveway is substantially in accordance with AS2890.1. 2004 in that the departures from that standard have now been certified by an appropriately qualified and experienced professional engineer, Mr Vardouniotis. Subject to the imposition of the conditions of consent proposed by the Council in Exhibit 7, with condition 13 modified to accommodate a design and construction to minimise vehicular slip where a driveway gradient exceeds 25% by a surface with crushed bauxite aggregate or equivalent and the inclusion of Mr Vardouniotis's plans in condition 2A, Mr Doyle contends that appropriate detail drawings can be submitted at the construction certificate stage.
Mr Grieve describes the proposed design of the driveway as being at the edge of acceptability. In giving that evidence he said "…because it is being proposed at 33%, that is certainly on the limit" (T 28/10/16 p89 LL37 - 45).
The Council has maintained throughout the whole of the hearing that the original plans and the amended and supplementary drawings relied upon by the Applicant are inadequate. Given the particular topographical constraints of the Site, the Council requires the final engineering design to be tabled and assessed at this time rather than the construction certificate stage. In support of this submission it highlights the concerns raised about the approved design under the deferred commencement condition to the original consent. Generally speaking, the deferred commencement condition 1.1 (a) - (j) required the submission of very detailed engineering drawings and design information, providing for a driveway compliant with the 25% gradient in accord with the Council's DCP and the Australian Standard. That happened. Mr Clare, who was the assessing officer for the purposes of the deferred commencement condition, told the Court he was presented with a plan that achieved the 25% gradient satisfying the condition and therefore was approved.
Despite that, Mr Doyle now complains (as does his neighbour at number 82, Mr Cook) that the approved design, with its elevated bridge like structure 3.4 m on the bend above ground level, is aesthetically unattractive and prohibitively expensive to build. He submits that the modification presents a safer and more environmentally sustainable development than the approved driveway in the current consent.
Yet, Mr Doyle invites the same opportunity for complaint in respect of this application. The design detail before the Court is deficient. The deferral of more detailed plans to the construction certificate stage leaves open the risk that an equally unattractive, yet compliant driveway, may need to be designed because the currently proposed design cannot actually be built to be compliant. The evidence is that the critical gradient on the edge of the driveway has not been assessed by Mr Vardouniotis. While he believes it may be designed to work, I have no assurance from a qualified engineer of that fact. Therefore, I am not satisfied that it is appropriate to vary the requirement in the AS adopted by the relevant DCP in this case.

Findings

After assessment, I find on the evidence of Mr Vardouniotis that a critical part of the driveway edge has not been designed in sufficient detail and therefore is not able to be assessed by a qualified engineer as required in order to vary the AS. Moreover, the earlier deferral of that same design detail at the DA stage resulted in a 40m long 3.4m high elevated "land bridge" being approved. The Council maintains that the suitability of the design in all its detail should be assessed as called up by s96 (under section 79C) at this point of time rather than the construction certificate stage. Given the topography of the site, and the evidence led by Mr Doyle that the proposed design is "at the edge of acceptability", I am not prepared to vary an AS without appropriate engineering certification to justify that course.
The final plans relied upon by the Applicant have been prepared by somebody who has not been named and whose qualifications are unknown. While they have been assessed by a qualified engineer, Mr Vardouniotis, his assessment is heavily qualified - only for the purposes of a concept design, only in respect of the centre lines gradients and transitions with no consideration of the critical edges on the curve. In the circumstances I cannot be satisfied on that assessment that the ultimate design will prove acceptable, after assessment under s79C, such as to warrant a variation of the AS that has been adopted by this Council in its DCP.
There is, as the Council submits, insufficient detail to properly assess this application. Furthermore, I accept, on the evidence before the Court, that there is no justification to support a variation of the Australian Standard. Both Mr Clare and Mr Vardouniotis, in his 27 odd years of engineering experience in respect of the design of roads, stated that neither of them had ever been required to approve of a domestic driveway with a centre line gradient of 34%, with a likely edge gradient on some portions in excess of 35%. While the evidence is that in some roads in the world a 40% gradient has been known to be approved (T 28/10/16 p90 L27), this fact provides me with no comfort as to the suitability of the proposed gradient on this domestic driveway in Hornsby.
It may be that a detailed plan, authored by a suitably qualified engineer with appropriate experience, may be able to make a judgement as to whether a particular gradient line design is safe and environmentally sustainable for this domestic driveway over and above the 25% maximum, but the promise of that expectation being achieved in the future on some plan which has not been detailed is not sufficient to enable me to approve of the application before the Court. While the notation to the Australian Standard does recognise that gradients to 25% maximum may not be "practicable in some particularly hilly residential locations" the fact is that there is an approved driveway which has achieved the 25% maximum. The design of that driveway may well be wanting in terms of aesthetics, a circumstance that may well justify some future variation to the 25% maximum, as being impractical for this site. However, a fully detailed plan needs to be provided, enabling a full assessment of the proposal to be made before variation of the standard can properly be considered.
The questions earlier identified for determination of the appeal must each be answered, "No". The appeal must therefore be dismissed.

Orders

The Court orders are: 1. Appeal dismissed. 2. The exhibits are returned. Susan Dixon Commissioner of the Court

Amendments 21 February 2018 - Correction to date of 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: 21 February 2018

At a glance

Court

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Before

Source

Judgment (13 paragraphs)

Parties

Cases Cited (2)

Cited By (2)