Nirimba Developments v Blacktown CC & Anor

KEY ISSUES: Development Application :- Right of carriage way, traffic and pedestrian conflicts, services, car parking, impacts on hotel patronage, construction management

Environmental Planning and Assessment Act 1979 Blacktown Local Environmental Plan LEGISLATION CITED: Draft Blacktown Development Control Plan Draft Blacktown Development Control Plan 1992 Pt X Quakers Hill Urban Village Draft Development in the Business Zones Development Control Plan

DATES OF HEARING: 23, 24 and 25 October 2006

Applicant Mr P Rigg, solicitor of Deacons

First Respondent Mr P Marincowitz, solicitor LEGAL REPRESENTATIVES: of Phillips Fox

Second Respondent Mr T Hale, SC instructed by Mr D Brigden of Holding Redlich

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10063 of 2006 Nirimba Developments Pty Limited v Blacktown City Council 10989 of 2006 Nirimba Developments Pty Limited v Blacktown City Council

1 The two appeals before the Court involve Development Application No. 053381 (10063 of 2006) and Development Application No. 062533 (10989 of 2006). These applications involve a residential flat building and access thereto at Quakers Hill.

2 The second respondent in these proceedings objected to the Court hearing the second of these appeals which is simply for the "use of the right of way that provides access to although it is not contiguous with the subject site." It was argued that the right of way appeal should not be heard at this time because inter alia the development application had not been notified, there was no statement of environmental effects and there is an insufficiency of evidence in relation to the application generally. The second respondent was also concerned that it had not had a proper opportunity to consider the right of way development application and the associated appeal given that the appeal was only lodged last week. The respondent council did not object to the second appeal proceeding.

3 During the hearing I decided that both appeals should proceed but that the second appeal should be adjourned in response to the second respondent's request to enable it to prepare a statement of issues and obtain expert evidence. I so agreed in the interest of fairness and notwithstanding that in a town planning sense, particularly in relation to access to the site, both appeals are in effect one and the same. The second appeal does not appear to raise any merit aspects that could not have been dealt with as part of the first appeal.

4 The first of these appeals relates to a development proposal for the construction of 236 dwellings in two five-level residential flat buildings above two levels of basement car parking on land known as 9 Nirimba Drive, Quakers Hill. Also included in the proposal is the conservation and landscaping of the urban bushland area that comprises roughly half of the site.

5 The rectangular shaped site comprises Lot 1 DP 853847 and has an area of 2.124 ha. It adjoins the Quakers Hill Parkway and the Richmond/Blacktown railway line. The site and the surrounding area are largely level although the site itself has a minor fall towards an existing watercourse within the heavily vegetated bushland area. It is located in close proximity to the Quakers Hill local shopping centre and railway station and adjoins the Nirimba Educational Precinct which includes a campus of the University of Western Sydney.

6 The subject Lot 1 has the benefit of a 7 m wide right of carriageway over Lots 1 and 2 DP 806691 facilitating the only means of vehicular access to the site. This is the right of carriageway referred to in the second application. This easement was created as part of DP 806691 and burdens Lot 1 therein to the benefit of Lot 2, (240 acres) and Lot 4, (557 acres) in DP 216298. It burdens Lot 2 in favour of Lot 4 in DP 216298.

7 The right of carriageway now provides access to Nirimba Drive on the north side of the Quakers Hill Parkway via Lot 2 DP 806691. This part of Nirimba Drive was created by DP 853847 being part of a subdivision of Lot 4 DP 216298 which in turn provides access to Lots 1, 3 and 4 with Lot 1 being the subject land. Lots 1, 3 and 4 have a combined area of about 225 ha.

8 The benefits provided by this easement are as follows: (a) Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment and every person authorised by him and the lessees, employees, customers, patrons, invitees and licensees of any business conducted from the improvements erected or to be erected on the dominant tenement to go, pass along and repass at all times and for all purposes with or without animals and with or without vehicles or both to and from the said dominant tenement or any part thereof; (b) the site of the servient tenement shall be maintained and repaired by the registered proprietor thereof, which obligations shall bind his successors, in title and assigns. 9 Lot 1 DP 806691 is developed with a hotel on the opposite side of the Quakers Hill Parkway to the site. This hotel has been established pursuant to a development consent granted by the council in 1989. The associated town planning report noted that the application was inconsistent with council's comprehensive Development Control Plan in that some hotel parking was to be provided on a proposed road (being an extension of Railway Road which when projected to the north side of Quakers Hill Parkway becomes Nirimba Drive) and that this road would only service a Telecom depot site on the north side of the railway overbridge.

10 In this context it was recommended that the dedication of the proposed road was not required and a right of carriageway should be provided in favour of Telecom. Car parking on the proposed road (resultedly on either side of the right of carriageway) was approved and this arrangement presently exists.

11 That part of the site the subject of the proposed residential development is zoned 2(c) Residential C under the Blacktown Local Environment Plan and in this zone the proposal is permissible with development consent. The bushland area of the site is zoned 6(d) Environmental Protection and the proposal involving this land is permissible with development consent.

12 The development application for the residential flat building was notified and one objection was received from the Quakers Hill Hotel to which I have already referred. That objection mainly relates to the use of the right of carriageway that passes through the site of the hotel to provide access to the subject development. The owners of the hotel Serati Pty Limited is the second respondent in the proceedings.

13 The council has not determined the development application and the appeal was lodged on the basis of its deemed refusal. The respondent council's statement of issues identifies issues involving access, zone boundary, riparian zone, insufficient information, access driveway, environmental protection zone, objections and car parking. As a result of amendments to the proposal and agreed conditions of consent these issues are no longer pressed and the council now agrees that deferred/conditional development consent can be granted. 14 All of the proposed conditions have been agreed between the applicant and the first respondent including a condition to the effect that any works associated with this proposal cannot commence until such time as a consent has been granted for the abovementioned second application/appeal. 15 The statement of issues provided by the second respondent identifies the following issues: 1) Whether the proposed use of the right of carriageway over the second respondent's land is commensurate with what is allowable under the right of carriageway. 2) Whether the current width of the right of carriageway over the second respondent's land is sufficient to service the increased traffic flow that would arise from the proposed development. 3) Whether the increased traffic flow traversing the right of carriageway arising from the proposed development will detrimentally impact the operations of the Quakers Inn Tavern including its vehicular and pedestrian movement and the general amenity of patrons and staff. 4) Whether the increased traffic flow traversing the right of carriageway arising from the proposed development will pose a hazard to the patrons and staff of the Quakers Inn Tavern. 5) Whether the traffic impacts on the Quakers Inn Tavern resulting from the proposed development would detract from, undermine or be otherwise contrary to the specific aims and visions of the Blacktown City Council as set out in the draft Blacktown Development Control Plan 1992 Pt X Quakers Hill Urban Village of July 2005. 16 Additional issues raised by the second respondent involve the use of plans of management to manage construction and traffic including pedestrian activities and construction traffic and whether the site is to be provided with services utilising the right of carriageway. A further significant additional issue not particularised in the statement of issues involves the effect of the use of the right of carriageway for the purposes of the subject development on the value of the hotel and its profitability.

17 In relation to the provision of services to the site I understand that such services already exist although these are likely to require amplification. (I also note the service provision requirements of proposed condition 61 which I will comment on later.) In these circumstances and taking into account that even if there were difficulties providing services across the second respondent's land it is apparent by the examination of maps of the subject and surrounding lands that it would not be impossible for alternate arrangements to be made.

18 In relation to the proposed plans of management generally I accept that these can be utilised in the manner and for the purposes proposed. I do not accept that there is any uncertainty in relation to these even though they have not yet been prepared.

19 In relation to the pedestrian plan of management I have been fully appraised of the concerns and the fundamental works that are the subject of conditions of consent. The plan of management will finalise these matters. 20 As for the plan of management for construction traffic, whilst Mr J Coady the applicant's traffic consultant was uncertain as to the exact extent of this traffic I accept his evidence that its management can be effected so as to minimise impacts not only on the hotel but also in relation to local streets generally. There will certainly be impacts but I do not accept that these impacts cannot be managed or would be such as to prevent the development of the subject site.

21 In relation to the issue involving incommensurate use I note that this is a matter that will be considered by the Supreme Court in the near future (Case No. 5386/06). I do not see this as a barrier to the determination of the application on its merits as I accept that prima facie the right of carriageway permits access to and from the site as well as significant areas of adjoining lands via Nirimba Drive. Should I be wrong in this regard I recognise as does the applicant that any consent that might be granted would be of no utility. However I do not accept that such concerns in this regard prevent the determination of this development application.

22 The second respondent's second issue involves the question of whether the right of carriageway would be of sufficient size to service the increase in traffic flow that would result from the proposed development. I understand that the proposed development will generate an additional seventy vehicle movements in the peak hour.

23 The two traffic engineers, Mr Coady for the applicant and Mr C Hazell for the second respondent prepared joint statements and they agreed that the right of carriageway can accommodate the level of traffic activity likely to be generated by the proposed development. This agreement is consistent with council's own internal advice from its senior transport management officer and I accept it on the basis of the reasoning contained therein.

24 Mr Hazell also expressed concerns that a continuous, direct and dedicated pedestrian footpath between the proposed development and the Quakers Hill shops should be provided otherwise pedestrians might for the sake of convenience utilise the right of way. As a consequence given the volume of traffic in the right of carriageway pedestrian safety would be in question. He was of the opinion that a better solution for both vehicular and pedestrian access to the site would be provided by the extension of Railway Road through to Nirimba Drive, this involving acquisition of part of the site of the hotel and the reconfiguration of certain parking spaces. A more appropriate footpath arrangement could thus also be provided.

25 Mr Coady disagreed with what Mr Hazell said about the unsatisfactory nature of the proposed traffic arrangements. He explained that given the low traffic volumes involved a separate footpath was not necessary however he agreed that a pedestrian management plan should be provided in relation to the upgrading and use of the existing footpath on adjoining railway land together with the provision of other associated pedestrian safety features. The applicant has now agreed to conditions that provide for the provision of 25 km per hour speed signs and a pedestrian crossing in Railway Road adjacent to the right of carriageway.

26 Concerns were expressed by the second respondent that the lease between the council and State Rail that has enabled the footpath to be provided on State Rail land may not provide a sufficient long term guarantee that this path will remain. This is of particular concern given the possibility that the railway line might be duplicated in the future. However I do not accept that these concerns are determinative taking into account that the footpath is essentially on the same alignment as one of the pylons supporting the Quakers Hill Parkway and the availability of land such that the path could be moved further to the west and closer to the hotel land.

27 Whilst it is plain that the optimal solution to these questions involves the extension of Railway Road as suggested by Mr Hazell and others and at least inferred by council's draft Development in the Business Zones Development Control Plan, the question for me to decide is whether the proposal is satisfactory. In this regard I have been persuaded by the evidence marshalled on behalf of the applicant and I accept that a safe and reasonably convenient pedestrian route from the nearby shops to the subject development will be available. In reaching this conclusion I have taken into account the provision of a pedestrian crossing and speed limit signs and the proposed plan of management. I have also taken into account the fact that the respondent council also finds the arrangement to be satisfactory.

28 The third and fourth issues involve detrimental impacts on the hotel itself and whether the traffic utilising the right of carriageway will pose a hazard for patrons of the hotel. One of the owners of the hotel Mr W Hilton provided evidence as to the nature, quality and activities of the hotel and I accept that it is a popular, well run, quality establishment. He was concerned that the proposal might result in a further reduction of car parking spaces and a loss of patronage. It would also put in danger his staff and hotel patrons who use the right of carriageway. He was also concerned that the nature of his clientele would be detrimentally changed as a result of the different demographic in the subject development by comparison with the family demographic of the locality generally.

29 In this regard I do not accept that these are matters that can attract sufficient weight to warrant refusal of the application. This is because there was no evidence to support the different demographic contention. Conversely the existence of two and three-bedroom dwellings in the development is an indication of likely occupation by families.

30 Mr Hilton was concerned that the possible antisocial behaviour of intoxicated passers-by who are not patrons of his hotel and who are going home to the subject development will be wrongly attributed to the hotel. In my view this is also a matter that cannot attract determinative weight without expert evidence that would indicate that this would be a significant ongoing problem.

31 The hotel's bottle shop is located in close proximity to the right of carriageway as are a number of car parking spaces. Patrons of the hotel using the bottle shop and these car parking spaces undoubtedly have the potential to come into conflict with vehicles using the right of carriageway in a manner similar to that which might occur in a public street involving, for example, retail premises and kerbside car parking. The additional vehicles involved in this instance will comprise on average about one vehicle every 50 seconds during peak periods and less at other times. Whilst I do not know exactly how often hotel patrons as well as pedestrians will be in the right of carriageway, I do not expect that it will be so frequent as to adversely coincide with vehicle movements generated by the subject development. In this regard I accept the evidence of Mr Coady and conclude that this matter is not one that could form the basis for the refusal of the application.

32 Concerns were raised by the second respondent about damage to the right of carriageway as a result of construction works and generated traffic generally. Notwithstanding that the terms of the easement require the second respondent to maintain the right of carriageway it is not unreasonable in the circumstances of this case that the applicant be responsible for the repair of any damage caused in the short term and, in the longer term for the making of a significant and continuing contribution towards its maintenance. I therefore support the conditions dealing with a dilapidation report and responsibility for damage repair associated with construction activities. I also require the preparation of a further condition in relation to continuing maintenance contributions after occupation of the development.

33 Finally, at the close of his submissions, the second respondent raised against the objection of the applicant a new issue going to the power of the Court to approve this application. That issue involves the servicing requirements of cl 24 of the LEP. Sub cl 3 and 4 require: 3) A person shall not carry out development on any land to which this plan applies unless arrangements satisfactory to the Water Board have been made with the board for the provision of water services to the land.

4. A person shall not carry out development on any land to which this plan applies unless arrangements satisfactory to

a) in the case of land within zone number 1(a) or 1(b) the council, or

b) in the case of all other land the Water Board have been made for the provision of sewerage services to that land.

34 Condition 61 in the draft conditions deals with services and requires that appropriate certificates and clearances be obtained from service authorities prior to the issue of any construction certificate. The constraint in cl 24 is in essence a prohibition on the carrying out of development until satisfactory arrangements have been made for the provision of services. In my opinion this does not prevent the granting of a development consent that contains conditions to ensure that such arrangements are made before any works are commenced. I have already dealt with the provision of services generally. The orders of the Court are therefore: 1. The appeal is upheld.

2. Development Application No. 053381 for the construction of 236 dwellings in two five-level residential flat buildings above two levels of basement car parking together with the conservation and landscaping of urban bushland on land known as 9 Nirimba Drive, Quakers Hill is determined by the granting of conditional development consent.

3. Exhibits 6, 4 and A are retained.

      T Bly
      Commissioner of the Court
      as

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.