Miller & anor v Pittwater Council

Miller & anor v Pittwater Council - [2014] NSWLEC 1087 - NSWLEC 2014 case summary — Zoe

[3]

Relevant background and the proposal 6The overall site comprises two vacant lots - Lot D in DP367601 (232 Barrenjoey Road) and Lot 5A in DP 399973 (234 Barrenjoey Road) and has a combined area of 4255.5m2. 7In 2011, the Court granted approval for a four-lot subdivision (Miller v Pittwater Council [2011] NSWLEC 1117). An existing driveway from Barrenjoey Road provides direct access to Lots B and D with access to Lot C via a Right of Carriageway from Bungan Head Road. The existing driveway also provides access to a parking area to service Lot A. Access from the car park to Lot A is via a proposed inclinator to be eventually constructed along the southern boundary of the site. Amongst other things, the 2011 approval also includes conditions requiring the implementation of a Vegetation Management Plan that includes additional tree planting and ongoing bush regeneration. 8The 2011 approved lots, less the access area, have the following net areas:

Lot A 1614m2
Lot B 700m2
Lot C 737m2
Lot D 704.5m2 9The current appeal before the Court proposes the further subdivision of Lot A into 2 lots. New Lot A on the upper, eastern portion of the lot includes the indicative location and design of a dwelling approved in the 2011 consent, and has a net area of 700m2 (with an additional 426m2 access handle). 10New Lot B is down slope and to the west of new Lot A. New Lot B is to the east of the 2011 approved Lot B. The site area is 847m2. The indicative dwelling footprint is 175.54m2. A 2011 condition requiring the height of any building to be no more than 8.5m remains. 11A parking pad off the western side of the existing driveway provides the proposed parking for future occupants of new Lot B. Direct access to the new lot will be via the inclinator anticipated in the 2011 consent and shown on the plans for the original Lot A in that consent. It is proposed that new Lot B will have reciprocal rights over the use and maintenance of the future inclinator. Stair access is also required as an alternative to the inclinator. 12Works relating to the 2011 approval are in progress and partly completed. These include widening and upgrading of the right of carriageway from Barrenjoey Road, excavation for parking, and the erection of fences around approved lot boundaries. Some trees have been removed from approved Lot C. The construction of the parking area has resulted in the placement of fill on the embankment between the parking area and Barrenjoey Road, which in turn has had a detrimental impact on a number of existing trees.

[4]

The hearing 13The parties' experts assisted the Court. The applicants' experts were: Ms Melanie Howden (Arboriculture), Mr Ross Fleming (Planning) and Mr Robert Varga (Access and Parking). The respondent's experts were: Mr Guy Paroissien (Arboriculture) and Ms Rebecca Englund (Planning, Access and Parking). 14The hearing commenced in late January 2014 with an inspection of the site. Mr Milligan, a town planner and agent for some of the adjoining owners made submissions concerning safety aspects regarding the use of the shared carriageway. 15The location of the proposed parking was noted and the possible impacts of its construction on Tree 40 discussed. Loss of vegetation arising from earlier works was observed and discussed. 16The location of the proposed inclinator was noted, in particular its position relative to the partly constructed parking spaces for already approved lots. Preliminary plans for access stairs were discussed. 17The site was accessed via informal steps through earlier approved lots. Access through proposed new Lots A and B is best described as 'bush-bashing'. The earlier approved lot and location of the proposed building pad at the top of the site were inspected. The proposed locations of the boundaries, access point, landscaped area and building pad on new Lot B were identified. 18The trees most likely to be affected were identified on the plans and in the field. It was noted that a number of trees identified as having a high retention value were indicated for removal because of the likely impact of a future dwelling. It appeared on site that relocating the proposed building pad to the north might have less impact on the better quality trees and therefore potentially less impact overall. 19The site was viewed from the south from Barrenjoey Road and distantly, from the west, from Rowland Reserve in Bayview. 20In Court, Mr Staunton made opening submissions for the applicants and Ms Irish for the respondent. Mr Varga and Ms Englund gave evidence on parking and access issues. Arboricultural evidence was commenced however following the discussions raised on site in regards to the location of the proposed building envelope on new Lot B and the likely impact on quality trees, it was agreed that, amongst other things, amended plans and other documentation be prepared to show an alternative location, including sections and landscaping. The hearing was adjourned. The parties' experts reviewed the amended plans and prepared supplementary joint reports. The hearing resumed on 11 March with final submissions on 31 March.

[8]

Controls and evidence 29The site is zoned 2(a) Residential "A" in Pittwater Local Environmental Plan 1993 (PLEP). Clause 11 covers 'Subdivision in residential zones'. Clause 11(2) sets a minimum allotment size created by subdivision in the locality in which the site is situated of 700m2. 30Draft Pittwater Local Environmental Plan 2013 (Draft PLEP) applies. The site is proposed to be zoned E4 - Environmental Living. The relevant zone objectives are essentially to provide for low impact, low density residential development that minimises unnecessary impacts on the natural characteristics of the site and achieves the desired character of the locality. The latest draft retains the 700m2 subdivision lot size although an earlier version proposed a minimum subdivision lot size of 1200m2. Council minutes of 20 December 2013 indicate that a number of submissions had raised objections to the proposed larger minimum lot size and that further investigation and consultation on the appropriateness of the larger lot size be undertaken in the early part of 2014, following the finalisation of the Draft LEP 2013. 31Pittwater Development Control Plan 21 (P21DCP) is relevant. 32The relevant outcomes of the subdivision controls in B2.2 P21DCP are:

Achieve the desired future character of the locality.
Maintenance of the existing environment.
Equitable preservation of views and vistas to and /or from public/private places.
The built form does not dominate the natural setting. 33The controls in cl B2.2 in Part B P21DCP specify a minimum lot size of 1200m2* for land subdivided in Zone 2(a) identified as Area 1 on the Dual Occupancy Map. The site is located in Area 1. The 'advisory note' for this lot size states: *It is noted that these areas are in excess of the minimum area prescribed in Pittwater Local Environmental Plan 1993. This recognises the environmental, visual, and residential amenity attributes of areas 1 and 2 on the Dual Occupancy map. 34Lot area excludes the part of the lot used for access. Clause B2.2 also requires a minimum lot width at building lines of 16m and a minimum lot depth of 27m. The minimum area for building shall be 175m2. 35Relevantly: Any lot (or lots) [is/] are to be capable of providing for the construction of a building which is safe from hazards, does not unreasonably impact on the natural environment, does not adversely affect heritage, and can be provided with adequate and safe access and services. 36Land in zone 2(a) shall not be subdivided if the intended allotment has a slope in excess of 30% measured between the highest and lowest points. The planners agree that the slope of both new lots is in excess of 30% and therefore does not comply with P21DCP. 37The amended plans illustrate the footprint of an indicative dwelling of 175.45m2, a portion of which is in the narrowest part of new Lot B. The footprint area complies with P21DCP. 38The planners agree that the site is appropriately described as sensitive land. The planners disagree on whether the proposal is consistent with the outcomes anticipated by the B2.2 controls. 39Mr Fleming considers that the lot is capable of siting a future dwelling that meets those outcomes. Ms Fleming maintains that the site is too heavily constrained by slope, existing significant vegetation and proximity to the ridgeline and that given the non-compliances with lot depth, as well at the intent of the 1200m2 lot size in P21DCP, that overall the proposal does not meet the objectives and should be refused.

[10]

Findings 43In considering the relevance of the 1200m2 lot size in P21DCP, as submitted by Mr Staunton, s 74C(5)(b) of the Act applies. This states that a provision of a DCP has no effect if it is inconsistent or incompatible with a provision of an environmental planning instrument applying to the same land. Therefore the applicable lot size is 700m2. As stated above, new Lot A will have a net area of 700m2 with an additional 426m2 access handle. New Lot B will have an area of 847m2. Therefore both proposed lots comply with the minimum lot size control in PLEP1993 and Draft PLEP 2013. 44I also note that the 2011 consent approved lots smaller than 1200m2. I also agree with the applicants that the size of the proposed new lots is not dissimilar to surrounding development, including a recently approved subdivision at 230 Barrenjoey Road. 45Where a development application does not comply with all the standards in a DCP, s 79C(3A)(b) of the Act requires the consent authority, in this case the Court, to be flexible in applying the provisions of a DCP and allow alternative solutions that achieve the objects of the relevant standards. The key consideration is whether the proposed development meets the objectives of the relevant controls in cl B2.2, P21DCP. 46The lot width complies with cl B2.2 P21DCP in that it exceeds 16m at the building line however, depending on where the building line is measured; because of the irregular lot shape, the depth varies from about 21m to 28m. A compliant depth is 27m. In regards to the minor non-compliance with lot depth on part of proposed new Lot B, I agree with Mr Fleming in that the indicative plans show that an otherwise compliant dwelling can be accommodated on the site. 47The findings in Zhang v Canterbury City Council [2001] NSWCA 167 at [75], state that a DCP must be considered as a 'fundamental element' or 'focal point' of the decision making process and any relevant provisions are entitled to significant weight but may not be determinative. Indeed, s 79C(1)(a)(iii) of the Act requires consideration of any development control plan. However, s 79C(3A)(b) permits a flexible approach in applying provisions of a DCP to allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development. 48In this regard, there is no dispute that the slope exceeds the control in the DCP and it is clear that construction of a dwelling on the site will be challenging and unsuitable for a conventional slab on ground dwelling. I am not convinced that steep slopes are uncommon or unusual in Pittwater LGA. The challenges will be abundantly clear to anyone considering purchasing the already approved Lot A. 49Crozier Taylor Geotechnical assessed the site using the relevant industry publication and Pittwater Council's Geotechnical Risk Management Policy 2009. All existing hazards were found to achieve the 'Tolerable' risk criteria. The Geotechnical Report, dated April 2013, and included in the application (Exhibit B) concludes: The site is considered suitable for the sub-division and residential development and can achieve the 'Acceptable' risk criteria over the design life of the development, required by Council's Policy, provided that the recommendations outlined in this report and any subsequent reports for individual lot development are followed.....Each building lot will require a separate geotechnical investigation and report to be submitted with their individual Development Applications once design for those developments is determined. 50On balance, I am satisfied on the evidence that the relevant outcomes of cl B2.2 (see [32]) are achieved, and the application should not be refused on the basis of non-compliance with the slope control in cl B2.2. As stated in the Geotechnical Report, further detailed investigations and recommendations will be required when any DAs are lodged for any future dwelling on the lots. 51Therefore, the appeal cannot be refused on the basis of lot size and, in my view, should not be refused on the basis of non-compliance with lot depth or slope.

[13]

Arboricultural evidence 57The arboricultural evidence considers the likely direct and indirect impacts of the indicative dwelling and proposed parking area and associated landscaping, as well as access - stairs and inclinator. The experts rely on a number of Impact Assessment reports and surveys prepared by Ms Howden. 58A Tree Summary Table in Exhibit V - Further supplementary joint report - arboriculture indicates the following:

26 trees likely to be removed: • I noxious species, • 19 of low landscape significance, 7 of which are unstable, • 4 of moderate landscape significance, 3 of which are unstable; and • 2 of high landscape significance both of which are unstable.
7 trees likely to be impacted • 1 of low landscape significance, • 3 of moderate landscape significance, and • 3 of high landscape significance.
28 trees unlikely to be affected • 6 of low landscape significance, • 14 of moderate landscape significance, 1 of which is unstable, • 7 of high landscape significance, and • 1 of very high landscape significance. 59The arborists agree that the relocated building envelope will result in slightly fewer trees of high and moderate landscape significance being removed; however, slightly more have the potential to be impacted but overall, slightly more trees of moderate to high significance will be retained. 60While Mr Paroissien agrees that the amended footprint provides for substantially improved retention of canopy trees with medium and high significance/retention value in the southern part of proposed new Lot B, he maintains his opinion that:
the proposal removes trees relied upon in the 2011 approval - in particular paragraphs [41] and [42] of Miller 2011; and
it is inevitable that actual vegetation and tree loss will be greater because of activities associated with the tree removal and the construction process, excavation and level changes for the dwelling and landscaping, and from 'edge' effects. 61In Mr Paroissien's opinion, the edge effects are likely to be greater as a consequence of relocating the footprint towards the centre of the lot. These edge effects include changes in microclimate providing more favourable conditions for weeds, thus creating the potential for impacts on the remaining vegetation. Mr Paroissien cites the direct and indirect tree loss as a consequence of works already undertaken for the 2011 approval as support for his opinion that there will be further impacts on vegetation (see para [12] of this judgment). 62Ms Howden accepts that tree removal will be inevitable however, in her opinion, the loss is not unreasonable given the zoning of the site and the retention of a significant portion of vegetation and tree canopy. While she notes that the current appeal is in regards to a sub-division, she relies on the relevant Conditions of Consent in the 2011 approval requiring the implementation of, and on-going commitment to, a Vegetation Management Plan that includes planting of canopy trees and other vegetation and on-going bush regeneration. In her opinion, these measures will protect and enhance the landscape setting of any future dwelling. Ms Howden does not share Mr Paroissien's concerns about edge effects. 63Amongst other things, contention 2(a) raises the issue of a lack of information regarding 'construction management' and the potential impacts on trees to be retained. As described in paragraph [22] of this judgment, the amended plans include a summary of the proposed construction methodology. During the hearing, the use of the area proposed for level open space as a site for materials storage was discussed. 64While acknowledging she is not an expert in building and construction, Ms Howden considers that providing the construction activities are carried out as indicated, the potential for tree loss will be minimised. Mr Paroissien considers the proposed construction management plan to be inadequate and unrealistic. In his opinion there is inadequate provision for material/waste storage and it is not clear how the inclinator, given its close proximity to trees, will be able to effectively transport materials. He considers that given the absence of tree protection measures during the previous works, he has little confidence that the proposed construction management plan will provide for adequate protection of trees to be retained. 65Mr Paroissien states that if the subdivision is approved, the proposed area of open space should be constructed first so that the area can be used for waste/ materials storage. He also considers that any construction materials for this area, such as rocks for the proposed retaining wall, be delivered in the area of the nominated dwelling footprint. 66In regards to the impacts of the proposed construction of the parking pad on Tree 40, the arborists drafted an agreed condition of consent that would enable its long-term retention (Exhibit O). The arborists also drafted a condition of consent regarding planting to screen the proposed parking platform (Exhibit Q). 67The arborists agree that the latest landscape plans depicting the proposed stairs adjacent to the inclinator indicate there will be minimal disturbance to the soil profile and that with appropriate supervision and use of hand tools, the stairs can be constructed with minimal impact on nearby trees.

[14]

Planning evidence 68In regards to visual amenity, from a planning point of view, the council contends that the desired future character is not achieved and the proposal will have unreasonable visual impacts on the natural environment as a consequence of the creation of an extra lot and subsequent development entailing the excessive removal of canopy trees thus resulting a dominance of built form. 69Ms Englund considers that the (amended) location of the proposed dwelling will result in it appearing wider when viewed from Barrenjoey Road and the waterway, and that the link to Bushrangers Hill will be diminished. Mr Fleming does not agree and opines that the revised building footprint moves any future dwelling to a point further below the ridgeline, which in his opinion is a better outcome. Mr Fleming notes that a band of vegetation will be retained between all future dwellings. 70With respect to the visual impact of the proposed parking platform, the planners agree that the location of it is not compliant with the 10m minimum front setback prescribed by cl. D10.7 in P21DCP. 71The relevant outcomes of Cl. D10.7 Front building line (excluding Newport Commercial Centre) include (as summarised):

Achievement of the desired future character of the Locality;
Equitable preservation of views and vistas to and/or from public/private places;
Maintenance of amenity of residential development adjoining a main road;
Retention and enhancement of vegetation to reduce the visual impact of the built form; and
Enhancement of existing streetscapes in keeping with height of the natural environment. 72Variations to the controls are permitted if the outcomes of the control are achieved. A number of circumstances that may enable a variation are listed. The DCP also states: Where carparking is to be provided on steeply sloping sites, reduced or nil setbacks for carparking structures and spaces may be considered, however all other structures on the site must satisfy or exceed the minimum building line applicable. 73Given what he describes as a 'narrow cone of view' from Barrenjoey Road, Mr Fleming considers that strict compliance with the control is unnecessary. He states that the actual setback to the street is in excess of 18m and maintains that the proposed landscaping and vegetation management plan will meet the objectives of the controls. 74Ms Englund considers that the proposed additional parking platform within the front setback will result in the accumulation of parking structures fronting Barrenjoey Road, which is inconsistent with cl D10.1 - Character as viewed from a public area. This clause requires that parking structures must not be the dominant site features when viewed from a public place. She does not consider that the circumstances of the site warrant a variation to the controls in cl D 10.7.

[16]

Findings 79While the site is in a Flora and Fauna Enhancement area, there is no suggestion/ contention that there are any threatened species or communities on the site. There is no ecological evidence that considers any impact on specific local fauna or their habitats. 80The application itself does not propose the removal of trees other than those to be removed for the construction of a carparking platform for new Lot B and potentially fencing. However, as the lot will be for residential purposes, tree and vegetation removal on new Lot B will be inevitable should a dwelling be constructed. The proposed tree removal associated with a future dwelling on (new) Lot A remains unchanged. 81Given the existing extent of canopy cover, the control requiring that development shall result in no significant onsite loss of canopy cover or net loss in native canopy trees, is difficult to achieve on proposed new Lot B, or indeed, on any of the 2011 approved lots. 82In Miller 2011 the impact on tree canopy and loss of vegetation was a key contention. The council places some emphasis on the interpreted intent in that decision to specifically retain the band of vegetation across proposed new Lot B. The Commissioners noted the weedy nature of the vegetation near Barrenjoey Road and the better quality vegetation, in particular the canopy trees, being on the upper portion of the site. The condition requiring a VMP and bush regeneration addressed this. At [39] the Commissioners stated: 'The number of trees in itself is not the focus of the Court's attention but at the end of the day it is whether the proposed development satisfies the provisions of the DCP and design [sic] future character, which is clearly a landscaped area with native vegetation'. 83At [40] the Commissioners noted that both a quantitative and qualitative approach to assessing tree loss was required. At [41] they concluded that the vegetation management plan indicated an enhancement of the native vegetation on site that met the DCP requirement for 'no net loss of native vegetation'. 84From [42] to [47] the Commissioners' considerations can be summarised as:

The proposed site is zoned residential, is not part of Bushranger Reserve, it is reasonable to expect the site would be developed for residential purposes; existing vegetation would be retained as far as possible with 'no net loss of vegetation' but there will be a loss of canopy trees; vegetation is important in the locality; the proposed dwellings will sit comfortably within a landscaped setting and will be secondary in terms of natural native vegetation when viewed from public areas [42];
The proposal achieves the desired future character; there is a maximum of two storeys in a natural landscape setting integrated with the landform and the landscape [43];
Restrictions on building height to ensure development is below the canopy to ensure that canopy trees predominate [44];
Balance achieved between maintaining landforms/ landscapes; as far as possible locally native tree canopy and vegetation will be retained and enhanced [45];
The bushland management plan provides for long term maintenance of the existing environment [46];
Clear bands of canopy trees will separate three levels of dwelling footprints so that they will not appear to cascade down the hill as in other areas where there is not the significant banding of natural vegetation to be retained and reinforced; equitable preservation of views from public areas; the dwellings will be secondary to the natural vegetation [47]. 85The findings in Segal & v Waverley Council [2005] NSWCA 310 consider that while consistency in administrative decision-making can be useful, a Commissioner of the Land & Environment Court is not bound by the decision of another Commissioner as each case must be considered in the context of its individual circumstances. However, there is a duty to give reasons for a decision. 86While the circumstances in this matter are similar to the circumstances in 2011, from what I can gather from the evidence, in 2011, there was no dwelling proposed on the western portion of then Lot A, that is, on the area proposed as new Lot B. Therefore, this was something the Commissioners at that time did not need to consider, and therefore, neither was any proposed removal of any vegetation from that area. At the end of the day, the Commissioners assessed the information that was available to them and made their determination. 87While I accept Mr Paroissien still has reservations about future impacts and edge effects, it was agreed that relocating the proposed platform to the north would result in less direct impact on high retention value trees. I agree with Mr Staunton's summary of the arborists' findings outlined in paragraph [58]. As the Commissioners stated in 2011, there must be both qualitative and quantitative assessments on tree/vegetation loss. 88The application before me is for subdivision however I must be satisfied that a dwelling can be accommodated on the site. Where the starting point is almost full canopy cover, maintaining that into the future yet permitting appropriate development is difficult and not necessarily possible. However, I am satisfied that the building platform has been located on a portion of proposed Lot B that results in less impact on significant canopy trees and does not unreasonably impact on the natural environment. The Vegetation Management Plan approved in the 2011 consent continues to operate but may be subject to amendment when a further development application is lodged for a dwelling. The indicative landscape plan indicates that replacement canopy trees and other native vegetation can be planted. 89There is no dispute that the site represents challenges for future construction. Building on proposed Lot B presents similar challenges to anyone purchasing and building on approved Lot A. The 'heavy lifting' in terms of tree protection measures will necessarily come when a development application is lodged for construction of a dwelling on the site. Conditions of consent at that time should also include a requirement for a detailed Construction Management Plan incorporating necessary tree protection measures to be submitted at the appropriate stage. However, to the extent necessary, the measures indicated by the arborists should be adopted for this application. 90In the circumstances, I do not find the removal of trees to be excessive or unreasonable, and there is no compelling evidence to suggest that long-term viability of locally native flora and fauna is unreasonably threatened. 91In regards to the impacts on views to and or from public and private places, I agree with the applicants' position that the views of any proposed dwelling from Barrenjoey Road will be very limited and restricted by existing or newly approved dwellings to the north and south. 92With respect to the very distant views of the site from Rowland Rowland Reserve, I agree with Mr Fleming that moving the proposed dwelling platform to the north sets it further below the ridgeline which has the effect of creating a better balance between the built form and the natural setting. I also agree that shifting the platform to the north retains larger, more significant and sustainable canopy trees in the south-western portion of proposed Lot B which will provide a wider buffer of vegetation between the clearing necessary for the approved inclinator and dwellings to the south. While shifting the platform to the north brings the proposed dwelling and landscaping closer to the rear of 13 Bungan Head Road, for reasons discussed below, I do not consider this will have any unreasonable or adverse impacts on views from that property. Therefore I find there will be equitable preservation of views and vistas to and/ from public/ private places. 93The 8.5m height limit is retained which sets any future dwelling below the canopy and bands of tree canopy are retained. This achieves the outcome requiring that built form does not dominate the natural setting. 94In terms of the desired future character of the locality, an issue central to many parts of the DCP, I find the proposal achieves this by:
Not compromising the low density residential nature of the locality;
Providing an indicative design of a maximum two-storey dwelling which steps down the slope, in a natural landscaped setting integrated with the landform and the landscape;
Maintaining the height limit is below the tree canopy;
Providing evidence that a future dwelling can be designed to be safe from hazards (geotechnical report; proposed steps, inclinator);
Achieving a balance between maintaining the landforms, landscapes and other features of the natural landscape and development of the land; and
As far as possible, retains and enhances the locally native tree canopy and vegetation thus assisting development to blend into the natural environment. 95The proposal also satisfies the controls in cl D10.3 Scenic Protection - General in P21DCP in that is minimises the visual impact on the natural environment when viewed from any waterway, road or public reserve. It achieves the outcomes by achieving the desired future character of the locality and ensuring that the bushland landscape is the predominant feature of Pittwater with the built form being the secondary component of the visual catchment. 96In regards to the proposed parking platform, the controls in cl D10.1 Character as viewed from a public place - require that garages, carports and other parking structures must not be the dominant site feature when viewed from a public place. 97The proposal is for a parking platform. There are no architectural plans for any garage or carport but the platform will be constructed on piers and elevated above the slope leading down to Barrenjoey Road. 98While I agree that soil disturbance as a consequence of the construction of the driveway and parking areas associated with the 2011 approval has had a detrimental impact on the health and therefore screening capacity of the existing vegetation on that slope, I am satisfied that the draft condition (Exhibit Q) specifying additional planting, will rectify this situation and suitable screening will be provided. Therefore, I consider the relevant control in cl D10.1 is achieved. 99 In my opinion, I also consider the outcomes of cl D10.7 Front building line are achieved and in the circumstances the variations to setbacks for steeply sloping sites should apply. 100Overall I find that, subject to the imposition of appropriate conditions, the application should not be refused on the basis of tree loss and visual impact.

[17]

Access 101The council's contention is that the applicant has failed to demonstrate a suitable off-street parking arrangement for the proposed additional lot, and adequate pedestrian access between the existing parking area and the and the proposed residential dwellings is not provided. 102The particulars include no demonstrated compliance with AS/NZ 2890.1-2004 in regards to the proposed parking area and for other users of the shared carriageway; lack of information about necessary access agreements; an extension of the inclinator not in accordance with the 2011 approval; works as executed not in accordance with the 2011 approval; no on-site parking; and failure to provide a Traffic Assessment Report. 103Several parts of the DCP apply. Of relevance is cl C4.2 Land Subdivision - Access Driveways and Off-Street Parking Facilities in P21DCP. The 'outcomes' are the safe and functional access for vehicles, cyclists and pedestrians as well as the provision of safe and convenient access for parking on each lot. The indicative dwelling shown on the plan would require two parking spaces (cl B6.5). Where an internal driveway is to be located within a Right of Way (ROW), the driveway is to be constructed as part of the subdivision works. 104Cl B6.4 Internal Driveways requires all driveways and ramps to be designed in accordance with the relevant Australian Standards. The controls also specify safety requirements, width, profiles, drainage and finishes. Relevantly, where an existing driveway is proposed to be used, the applicant must demonstrate compliance with the controls. 105B6.5 considers off-street parking. A large dwelling with two or more bedrooms requires two off-street spaces. On steeply sloping sites and those with high environmental value, the DCP allows car parking solutions to be negotiated for each site. Shared vehicular access is permitted where there is mutual agreement. Provisions for car parking on the steepest sloping sites may be waived subject to consideration of the merits of each case. 106Incline Passenger Lifts and Stairways are covered in cl C1.19. The required outcome is that incline passenger lifts (inclinators) and stairways are to cause minimal visual and acoustic disturbance to the environment and neighbours. They are to be designed and installed to be as close to ground level as possible with excavation and tree removal to be kept to a minimum. On steeply sloping existing lots, inclinators are preferred to driveways but must be assessed on merit. Inclinators will not be accepted in lieu of vehicular access for new subdivisions. 107The development proposes a parking pad off the western side of the existing driveway that provides two parking spaces for future occupants of new Lot B. Direct access to the new lot will be via the inclinator shown on the approved plans for the original Lot A in the 2011 consent. It is proposed that new Lot B will have reciprocal rights over the use and maintenance of the inclinator. Stair access is also required as alternative to the inclinator. The proposed inclinator is a 'Rail Glider' (details in Exhibit G).

[18]

Evidence - parking/driveway 108On site and in a further submission, Mr Vaughan Milligan, a Development Consultant, made submissions on behalf of the owners of 230 Barrenjoey Road who have a right of carriageway over the existing driveway. He stated that the surface levels of the driveway have been lowered and this makes access to his client's property difficult. He contends that adding the proposed parking platform for new Lot B will narrow the right of carriageway and make access even more difficult than it currently is. He submits that there is an opportunity to improve the access to allow for a single turning movement and that the current application will perpetuate an existing difficult three-point turn. On site, Mr Milligan acknowledged that there has always been a need to negotiate a three-point turn to enter/exit his clients' property. 109Mr Robert Varga for the applicant and Ms Englund for the council participated in joint conferencing and gave oral evidence. The experts agree that the proposed subdivision does not provide off-street parking on proposed Lot B and is therefore non-compliant with cl C4.2 which requires the design of each new lot to provide on-site parking. 110In Mr Varga's opinion, the provision of 2 off-street parking spaces meets the requirements of cl B6.5. 111In regards to the as-built parking platform, the previously approved plans nominated only a single RL of 57.5 and did not make any allowances for drainage or suitable transitions to the existing driveways to the south of the site. Mr Varga notes that the as -built platform is about 300mm lower than the point where the RL 57.3 is shown on the approved plans. He says the current arrangement was deemed to be the only practical way of accommodating the required stormwater drainage and necessary transitions in slope. He states that otherwise vehicles would have scraped and there would have been an unsafe drop on the upper western side of the driveway. In his view, the as-built platform achieves a better and safer outcome than the approved plans. 112Mr Varga opines that the 2011 approved plans anticipated a three-point turn. He has tested the turning area in a B85 vehicle and prepared swept path diagrams indicating that a large B99 vehicle can undertake a simple three-point turn in accordance with the requirements of AS2890.1. Mr Varga also notes that the proposed platform for new Lot B does not encroach onto the Right of Way that benefits the neighbours. 113Ms Englund maintains her opinion that the provision of parking is inadequate and inconsistent with the outcomes of cl C4.2 that requires provision of safe and convenient access and parking on each lot. She contends there is insufficient information as to how safe access is to be gained to a land-locked lot. She presses all elements of the council's contentions. 114Roads and Maritime Services (RMS) reviewed the application and raised no objections as they considered it unlikely to generate significant traffic on their road network.

[21]

Findings 120It is clear that parking cannot be provided on new Lot B however cl B6.5 P21DCP enables alternative solutions for steeply sloping sites and shared vehicular access can be permitted. Clause C1.19 states that inclinators are preferred to driveways however inclinators will not be accepted on new subdivisions. 121In considering the access stairs and inclinator, the inclinator was anticipated in the 2011 consent and its location is shown on Lot A on the approved plans. There are no conditions of consent in the 2011 approval that specifically deal with the inclinator; approval is inferred as it is shown on the approved site plans. The application before me does not seek to construct the inclinator but rather to extend part of it to provide access to new Lot B. Providing an additional stop on an already approved inclinator does not seem unreasonable. The concept stair details show compliance with BCA requirements. The landscape plans in Exhibits T and U indicate that the construction of bush stairs is possible and will provide safe means of pedestrian access. 122Notwithstanding the fact that the existing parking area does not comply with the plans approved by the 2011 consent, from a practical point of view and with the benefit of the site inspection, I am satisfied that the common driveway can be negotiated in a safe manner. Pedestrians moving to or from the proposed parking platform for Lot B would be capable of seeing vehicles entering or leaving the right of way. The explanation of the reasons for the non-compliant levels, that is the need to provide drainage and to achieve the practical transitioning of the various entry and exit points, appears to be to be completely reasonable. If indeed it has avoided an unsafe edge on the western side, I would have to agree with Mr Varga that this might have achieved a safer outcome than strict compliance with the one level indicated on the 2011 approved plan. 123It would also appear from the evidence that other users of the right of carriageway have always had to negotiate a three point turn when entering or exiting their properties. I am satisfied by Mr Varga's swept path diagrams, that a large B99 vehicle can safely negotiate the right of carriageway. Therefore the proposal maintains the status quo. However, I agree with the parties that conditions must be imposed to prevent any obstruction of the right of carriageway. 124I find no grounds to dismiss the application on the basis of parking and safe use of the common driveway. Overall, I am satisfied that in the particular circumstances of the site, the proposal meets the essential outcomes of safe and convenient parking and safe and functional access for vehicles and pedestrians, albeit not on the actual lot, but reasonable by virtue of the variations allowed in P21DCP.

[25]

Contested conditions - submissions and findings 132It is common ground that the as-built car parking slabs, retaining walls and manoeuvring areas do not accord with the plans approved in the 2011 consent. Both parties made submissions as to how this may be resolved; all options require the imposition of deferred commencement condition 1. 133The council contends that the applicant must submit a modification application pursuant to s 96AA to modify the 2011 consent so that the existing structures, extent of excavation and levels are approved consistent with the as-built development shown in level and detail survey Sheet 3 of 4, prepared by Stutchbury Jacques Pty Ltd, dated 7 November 2013. 134The applicants propose the same outcome but that the 2011 consent be modified pursuant to s 80A(1)(b) and s 80A(5) the Act and cl 97 of the Regulation; or, in the alternative, that a building certificate pursuant to s 149D of the Act be granted. 135While noting my comments in [122] of this judgment, in the circumstances I consider it reasonable for the applicant to submit a s 96AA modification application as requested by council. In my view this provides for a clearer process as the modification relates to an earlier consent. However, because of the need for an additional application to council, the timeframe for compliance with Part A of the conditions will be three years as requested by the applicant rather than the 18 months proposed by the council. 136Deferred commencement conditions 1-6 are as proposed by council in Exhibit 21. 137Part B: A(1) is amended to include the words 'plans A09 and A10 by Inscape' where indicated by the applicants' marked up version in Exhibit W. 138The applicants' proposed amendment to Part B- B(12) is not pressed. 139A significant difference between the parties is whether the Court should impose a condition of consent requiring the applicants to construct the inclinator and access stairs prior to the subdivision of the land. This is part of condition B17 in Part B. The applicants seek the deletion of the following portion: "The inclinator, stairs shown in the undated Concept Stair Detail and Section at scale 1:50, inclinator pathway and stairs in the access handle, and". 140Ms Irish contends that s 80(A)(1)(f) of the Act provides that a condition of consent may be imposed if it requires the carrying out of works relating to any matter referred to in s 79C(1) applicable to the development the subject of the consent. In addition, s 81A(3) makes separate and clear provision for a development consent that enables the subdivision of land to authorise the carrying out of physical activity in connection with the subdivision; which in her view could and should include the inclinator and stairs. 141Mr Staunton reiterates the applicants' position that the development application does not seek approval for the construction of the inclinator or access stairs. The purpose of the plans and drawings in Exhibits M and U as well as the proposed dwelling footprints and access points from the inclinator are simply to demonstrate that a dwelling, including access, can be provided on proposed Lot B in accordance with the requirements of cl B2.2 in P21DCP. Access to Lot B will be via a right of way over Lot A. 142After considering the submissions, I agree with the applicants' version of condition B-B(17). The applicants have not sought approval for the construction of the inclinator and stairs. The concept details clearly indicate that compliant access from the car park is possible and the inclinator and 'bush' stairs within the access handle are clearly anticipated in many other conditions of consent and on the plans. Given the time period over which the consent operates, and the time it may take to sell the lots, it is quite possible that there may be improvements in the design of inclinators. The applicants' choice may not meet the demands of the future purchasers of the newly created lots. Practical considerations of security and maintenance of an inclinator on a site where there are no occupants may prove difficult. Therefore, from a practical point of view the construction of the inclinator and stairs should be a component of any development application for a future dwelling on Lot A or new Lot B. 143However, to provide clarity and certainty to prospective purchasers of Lot A and new Lot B, there must be a detailed explanation of who is responsible, and, in general terms, the timing of necessary works. This could be incorporated into the s 88B Instrument referred to in condition F10 in Part B. 144As the applicants only propose the construction of the parking platform, they press the deletion of condition C24 in Part B. Given my findings on construction of the inclinator and stairs I agree with the applicants' version and this condition is deleted. No other changes to conditions in sections C, D or E are pressed. I note the applicants' suggestion that the portion of condition C20 dealing with revegetation of the western frontage of Barrenjoey Road could be a deferred commencement condition. As council does not press this, I propose to leave it as part of condition C20. 145I agree with the applicants that condition F3 be modified by deleting the words 'upstream properties' and replacing them with 'new lot/s the subject of this consent'. 146Condition F10 in Part B deals with the creation of easements and rights of way/carriageway. The applicants' alternative replacement condition is preferred and it should address the issue I raised in paragraph [143]. Reference should be included to the applicable plans A09 and A10. Similarly the applicants' replacement version of F15 is preferred. 147Summary of the changes made by me to the draft conditions of consent in Exhibits 21 and W [an electronic version of the applicants' marked up version has been edited to reflect the changes I have made] and now incorporated into Conditions of Consent in Annexure A:

Part A:
The information required by the deferred commencement conditions is three (3) years.
Council's version of deferred commencement conditions 1-6 in Exhibit 21.
- Part B:
A1 include the words 'plans A09 and A10 by Inscape' where indicated by the applicant's marked up version in Exhibit W.
B17 delete the words "... inclinator, stairs shown in the undated Concept Stair Detail and Section at scale 1:50, inclinator pathway and stairs in the access handle, and"
Delete condition C24.
Modify F3 by deleting the words "upstream properties" and replacing them with "new lot/s the subject of this consent".
Replace F10 in accordance with [146].
Replace F15 with "Prior to the issue of a subdivision certificate, the Applicant is to provide evidence that it has obtained a subdivision certificate for the subdivision in relation to the yet to be created lots approved by the Land and Environment Court in proceedings 10411 of 2010.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (26 paragraphs)

Parties

Cases Cited (3)

Cited By (2)