Nirimba Developments Pty Limited v Blacktown City Council & Anor

Nirimba Developments Pty Limited v Blacktown City Council & Anor - [2008] NSWLEC 1229 - NSWLEC 2008 case summary — Zoe

[19]

The traffic report is narrowly focussed on the current status of the road which is a Right of way and assessed only its suitability for access provisions for the proposed development. It is our view that in terms of capacity of the road to handle additional traffic, the existing seven metre wide carriageway can accommodate additional traffic generated by the proposed development. However, safety concerns are raised on the ninety degree angle parking on both sides of the right of way in front of Quakers Inn Hotel should the right of carriageway become a public road in the future.... Ninety degree angle parking is something the Quakers Inn Hotel needs reviewing once the right of way portion of Nirimba Drive (fronting the Quakers Inn Hotel), becomes a public road. Kerbside parallel parking on both sides or one side of Nirimba Drive could be the options for consideration at that time. Should either of the options be adopted, there would be an impact in the loss of existing parking available for Quakers Inn Hotel. This issue would need to be examined and addressed as the Hotel's operations currently relies on these angle parking spaces. A temporary footway has been established in the rail corridor on the eastern side of the right of carriageway. This temporary arrangement with Railcorp was most likely established during the original construction of the Quakers Hill parkway overbridge, when a pedestrian connection from the bridge to Nirimba Drive was established. Enquiries with Property section indicated that details concerning the duration of the lease with Railcorp is not clear, and this matter will be pursued with the rail authorities. This matter will need to be clarified as there is rail duplication proposal between Quakers Hill and Schofields as part of the North-west Structure Plan over the next four years and the land within the rail corridor currently utilised for the footway will need to be secured... Whilst traffic numbers are not high, as a result of this development this arrangement involves crossing Nirimba Drive twice which itself could be a safety hazard. However, this scenario is unlikely to take place and pedestrians will tend to walk the shortest route through the carpark to connect to footways on the western side of Nirimba Drive. A continuous footway provision on the western side of Nirimba Drive would cater for the increased demand of pedestrians and potential cyclists. In this regard it may be appropriate to consider realigning the angle parking into the rail corridor to create sufficient space for the footway on the western side of Nirimba Drive." Issues 10 In these proceedings about the right of carriageway the Second Respondent raises the following issues: Legal Issues 1. Whether the development application can be determined in the absence of the consent by the landowner to the lodging of the development application. 2. Whether the development application can be determined where it was not accompanied by a Statement of Environmental Effects meeting the requirements of clause 50(1)(a) of the Environmental Planning and Assessment Regulation 2000. 3. Whether the application should be entertained where it would be futile for the Court to embark on an environmental and planning assessment in circumstances where the landowner's consent had not been given. 4. Whether development consent can be granted to the application given the lack of precision of the description in this application of the proposed development. Merit Issues 5. Whether the use of the right of way by vehicular and pedestrian traffic likely to be generated by the proposed development, particularly when coupled with the use of the parking area of the Quakers Hill Inn by its patrons and suppliers, will give rise to an unacceptable level or risk to the safety of those who use the car park. 6. Whether the likely increased traffic flow traversing the right of way arising from the proposed development will unacceptably impact upon the operations of the Quakers Hill Inn. 7. Whether construction traffic involved in the development of Nirimba' site will have unacceptable impacts upon the operations of the Quakers Hill Inn. 8. Whether vehicular traffic (including construction traffic) will have an unacceptable impact on the pavement of the car park within the boundary of the right of carriageway. 9. Whether Nirimba and its successors in title should be responsible for the on-going maintenance of the right of way and for injuries and other damages which may be occasioned within the right of way as a result of its use by people accessing Nirimba's site. 10. Whether it is appropriate that the right of way be allowed to be used in circumstances where it will be, or will be seen by the public as, performing the functions of a public road, it not having been constructed to the standards and specifications of a public road. 11 At the beginning of the proceedings before me the second respondent, Sertari, had not provided owner's consent for the development application to use the right of carriageway. The applicant, Nirimba, appealed to the Supreme Court and on 22 March 2007 in the matter of Nirimba Developments Pty Limited v Sertari Pty Limited [2007] NSW SC252 his Honour stated that an order should be made requiring the giving of consent by the Defendants. 12 The Supreme Court's decision was appealed in the Court of Appeal and judgment in the matter of Sertari Pty Limited v Nirimba Developments Pty Limited [2007] NSWCA324 held that the appeal be dismissed with costs. The following is an extract from this judgment: 3 HANDLEY AJA : This appeal from a decision by Windeyer J raises questions about a right of carriageway over Torrens Title land at Quakers Hill owned by the Appellant. The order appealed against required it to consent in writing to an application for development consent in respect of the servient tenement. The easement was created pursuant to section 88B of the Conveyancing Act 1919 to satisfy a condition in a development consent granted on 18 August 1989 by the Council of the City of Blacktown (the Council) for the construction of a tavern on land which included the servient tenement. The Quakers Inn Hotel was later erected on that land.

[36]

18 In Mr Hazell's statement he comments:´ in my experience I have not encountered a right of carriageway that is used to provide a missing link in a public road … that at the time of creation of the ROC it was not envisaged that there would be a future residential development of 236 units… the peak hour traffic generated by this development may be higher than the seventy vehicle trips estimated (by Mr Coady). However the traffic generation of this proposal can be adequately catered for by the 7 m wide roadways that exists even if the generation is higher than estimated. Consequently the addition of 70 or slightly higher vehicle trips in the peak hours will not exceed the capacity of this roadway in isolation. However the application does not estimate or evaluate the effect of the cumulative impact of forecast flows of the potential 2000 additional dwellings...nor does it adequately deal with the impact of the traffic on existing and future pedestrians using the right of carriageway…. the ROC has been constructed as a car park and not as a road and is unsuitable to carry the anticipated traffic flows to the construction vehicles estimated for this site. In my opinion pedestrians generated by the proposed residential development will not use a footpath on the opposite side of the road as they will take the shortest route between the unit development and the Quakers hill shopping centre and railway station irrespective of potential road danger. Further this pedestrian path does not assist in reducing the conflict between existing pedestrians generated by the cabin and the additional vehicle traffic generated by the residential proposal…. further it is my opinion that efficient pedestrian facilities are available in the ROC to cater for the future pedestrian traffic generated by the proposed to 36 residential unit development 19 Mr McLaren in his statement of evidence comments as follows The pedestrian vehicular conflict activity identified requires corrective action - the only reasonable action in the circumstances is to provide a footpath along the western side of the ROC as there is no way of physically preventing pedestrians walking along the ROC without the Western footpath. Any effective physical device directing pedestrians to the eastern part would be a fence, which would prevent pedestrian use of the ROC. Such a fence would by necessity also deny vehicle access to the Nirimba Drive land parcels to the north of the Quakers Hill Parkway. 20 Mr Logan refers to the report prepared by Mr Coady wherein he comments as follows Mr McLaren and Mr Hazell considered that a pedestrian footpath is necessary across the Quakers in tavern site on the western side of the RoW. while I consider that desirable I do not consider it to be necessary. It seems that the concern expressed in respect of pedestrian vehicle conflict can only be justified if the assumption that pedestrians won't use an upgraded footpath on railway land on the eastern side of the Ro W. but will choose instead to walk along the RoW. in direct conflict with vehicular traffic. I do not believe that in general pedestrians would prefer to endure dangerous conflict with moving vehicles along the 35 m long Ro W. rather than the relatively minor inconvenience of crossing the Nirimba drive at one or two locations to walk along a footpath segregated from vehicular traffic. If pedestrians do choose to use an upgraded footpath on railway land on the eastern side of the right of way the only pedestrian vehicle conflict involved is crossing Nirimba drive to the north of the Quakers in tavern site and to the south of the Quakers in tavern site for those pedestrians with an origin /destination on the western side of the drive… in my opinion if the footpath on the railway land on the eastern side of the Ro W. is satisfactorily upgraded, and if pedestrian facilities are installed to facilitate pedestrians crossing the Nirimba Drive then pedestrians would utilise the designated pedestrian route rather than 'run the gauntlet' with vehicular traffic using the RoW. 21 While a pedestrian crossing is not triggered under the Australian Standard it was agreed by the traffic engineers, that as a discretionary matter the Council could approve a pedestrian crossing and indeed it is included as a condition of consent for the residential flat building approved on the adjoining site. (see Condition 178C). "the applicant shall provide a zebra crossing across Nirimba Drive in accordance with the Traffic Management Plan approved under these conditions These works shall be completed prior to any Occupation Certificate for the development." 22 Mr Hazell and Mr McLaren said that the desire line for a pedestrian is to go the shortest path that is through the Second Respondents' property on the western side of the right of carriageway. 23 Mr Logan on the other hand is of the opinion that some pedestrians would cross the road, although it would be difficult to quantify what percentage and this will depend on the mix of people that live in the units. The figure attached from the applicant's traffic engineer shows the two pedestrian routes. That is, the one adjacent to the east on rail leased land and the one through the second respondent's property adjoining the western side of the right carriageway. Mr Logan recommends that the lease be renewed to provide a pedestrian path.

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Judgment (55 paragraphs)

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