Oboodi v Hornsby Shire Council

Land and Environment Court (NSW)|2018-09-27

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of a modification application made pursuant to s 4.55(2) of the EPA Act, to amend the driveway construction details (the proposal) to modify Development Consent No. 320/2015 (the original consent) for a three lot subdivision (the approved development) at 88 Malton Road, Beecroft (the site) by Hornsby Shire Council (the Council).
The appeal was subject to mandatory conciliation on 6 June 2018, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.
Leave was granted by the Court on 20 July 2018 for the applicant to rely on an amended proposal.
Further amendments were made to the proposal during the hearing, consistent with the agreements of the arboricultural experts and leave was unopposed and granted by the Court for the applicant to rely on those plans as the application (Exhibit A). The Council submitted that the amendments made to the application in Exhibit A were minor within the meaning of s 8.15(3) of the EPA Act.

Issues

The Council's contention that the construction of the driveway would have an unacceptable impact on the Eucalyptus pilularis (identified as Tree 70) located on the Council's road reserve was not pressed, following the amendment of the application in Exhibit A.
The Council's contention that the design of the proposed accessway does not meet the requirements of the General Terms of Approval issued by the Rural Fire Service on 31 May 2018 or condition 45 of the approved development in relation to access was not pressed, following the amendment of the application in Exhibit A.
The Council submitted that the amended modification application can be approved, subject to the consolidated conditions of consent.
The Council sought to have the Court impose a new condition on the modified consent requiring an emergency vehicle 'turning head' be provided on Lots 2 and 3.

The site and its context

The site is legally known as Lot 41 in DP 714483.
The site is on the south-western side of Malton Road and contains an existing two storey dwelling, which is accessed via an existing driveway from Malton Road. The site area is 3,777m2.
The site falls steeply at the rear, to the south. Malton Road falls to the east.Tree 70 is in front of the site within the road reserve, adjacent to the existing bitumen driveway crossover. There are other trees within the road reserve to the west of the existing driveway crossover.
90 Malton Road is to the east of the existing dwelling on the site and the approved driveway is located adjacent to the shared boundary between 88 and 90 Malton Road. The existing dwelling at 86A Malton Road is to the west of Lot 2.

The approved development

The approved development, Development Consent No. 320/2015, is for a three lot subdivision, granted by the Council on 12 October 2016. The approved development includes locating the existing dwelling on Lot 1 (946m2), Lot 2 (1,369m2) to the rear of Lot 1, and Lot 3 (1,452m2) to the east of Lot 2, at the rear of 90 Malton Road.
The approved development includes driveway access from Malton Road, in approximately the same position as the existing crossover, with the driveway extending to the battleaxe lots adjacent to the length of the eastern boundary of the site. The southern end of the driveway includes a turning area over Lot 3. The approved development includes red lines drawn on the application drawings, which denote a 4m wide driveway as the driveway crosses the front boundary and a 5.5m wide section of driveway in the eastern corner of the site.
Condition 3 of the original consent includes the following: a) To comply with Council's requirements and the RFS requirements for driveway design, the Plan of Subdivision by P S Graham dated 16.8.2016 is to be amended as follows: i) A passing bay of 5.5m wide and 6m long shall be constructed at the northern boundary of lot 1, adjacent to Malton Road, generally in accordance with the modification in red; ii) The right of way serving Lots 2 and 3 is to have a 4m wide unencumbered width, requiring retaining walls above ground to be relocated outside of the 4m wide carriageway.
Condition 3 also sets out the requirements for a revised landscape plan.
Condition 5 requires a separate Construction Certificate be obtained from Council for all works within the public road reserve.
Condition 10 is in the following terms: Internal Driveway/Vehicular Areas The driveway and parking areas on site must be designed, in accordance with Australian Standards [sic] 2890.1, 3727 and the following requirements: a) A passing bay of 5.5m width and 6m length is to be constructed at the northern boundary of Lot 1, close to Malton Road. b) Design levels at the front boundary shall be obtained from Council if a private accredited certifier is engaged to obtain a construction certificate for these works c) The driveway shall be a rigid pavement and accommodate a 15 tonne loading. d) The driveway pavement be a minimum 3 metres wide, 0.15 metres thick reinforced concrete with F72 steel reinforcing fabric and a 0.15 metre sub-base. e) The pavement have a kerb to one side and a one-way cross fall with a minimum gradient of 2 percent and a lintel and pit provided at the low point. f) Conduit for utility services including electricity, water, gas and telephone be provided. All existing overhead assets including electricity and telecommunications cabling shall be relocated underground at no cost to Council. A certificate from an appropriately licensed contractor shall be submitted to the principal certifying authority certifying that the service conduits have been installed in accordance with the relevant utility provided and Australian Standards. g) A common turning area to service the proposed subdivision in accordance with Australian Standards [sic] AS 2890.1 to ensure vehicles can enter and leave the site in a forward direction. A right of access shall be created over the turning area to ensure access is maintained at all times. The reduced levels of the common turning area on Lots 2 and 3 are to be generally consistent with the Long Section Plan by P S Graham dated 20.1.2016, to maintain the approved level of cut and fill in this location.
Condition 14 requires a project Arborist be appointed to provide monitoring and certification throughout the development process.
Condition 16 requires that Tree 70 has a TPZ of 8.4m and a Structural Root Zone (SRZ) of 2.9m and includes provisions for the protection of the tree during construction.
The Rural Fire Service (RFS) General Terms of Approval are included in the original consent at conditions 42 - 45.

The proposal

The proposal is for the detailed design of the driveway crossover in the road reserve in approximately the same position as the existing driveway and for the detailed configuration of the driveway for a distance of 14m from the front boundary extending into the site. The proposal retains the existing driveway to the existing dwelling on Lot 1. The proposal includes a widened area on the western side of the driveway within the road reserve to allow for the 6m radius turning circle of an emergency vehicle.
The turfed widened area of the driveway on the western side of the driveway, within the road reserve, requires an excavation to approximately 300mm and a 400mm high retaining wall if the batters to the boundary are unachievable.
The parties agreed that the proposal does not include any retaining walls on the subdivided rear lots, Lots 2 and 3.

Planning framework

The site is zoned R2 Low Density Residential pursuant to the Hornsby Local Environmental Plan 2013 (LEP 2013). The objectives of the R2 zone, to which regard must be had, are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
The site is within the Beecroft-Cheltenham Heritage Conservation Area (HCA) (Part 2, Schedule 2, LEP 2013). The street trees and bushland in the road reserve of Malton Road are identified as a heritage item (item 14, Schedule 5, LEP 2013). The consent authority must, before granting consent in respect of a heritage item and heritage conservation area, consider the effect of the proposed development on the heritage significance of the heritage conservation area, pursuant to cl 5.10(4) of LEP 2013.
Section 6.4 Accessway Design of the Hornsby Development Control Plan 2013 (DCP 2013) suggests that an accessway serving two or more lots should incorporate a common turning area, where vehicles would otherwise have to reverse more than 50m. A passing bay with a minimum width of 5.5m and depth of 6m and transition of 4m should be provided adjacent to the street boundary where the accessway serves two or more lots and fronts a main road, or where a long common driveway is proposed.
The site is identified as Bushfire Prone Land BFPL Vegetation Buffer - 100m and 30m on the Council's Bushfire Prone Land Map 18. Development in an area identified as Bushfire Prone Land should address the bush fire protection measures in the publication, 'Planning for Bushfire Protection 2006' published by the NSW Rural Fire Service, at 1C.3.1 of DCP 2013. Planning for Bushfire Protection relevantly includes the following performance criteria and acceptable solutions for property access: • the capacity of road surfaces and bridges is sufficient to carry fully loaded firefighting vehicles. • bridges clearly indicate load rating and pavements and bridges are capable of carrying a load of 15 tonnes. • all weather access is provided. • roads do not traverse a wetland or other land potentially subject to periodic inundation (other than a flood or storm surge). • a minimum carriageway width of four metres for rural residential areas, rural landholdings or urban areas with a distance of greater than 70 metres from the nearest hydrant point to the most external part of a proposed building (or footprint). Note: No specific access requirements apply in a urban area where a 70 metres unobstructed path can be demonstrated between the most distant external part of the proposed dwelling and the nearest part of the public access road (where the road speed limit is not greater than 70kph) that supports the operational use of emergency firefighting vehicles (i.e. a hydrant or water supply). • in forest, woodland and heath situations, rural property access roads have passing bays every 200 metres that are 20 metres long by two metres wide, making a minimum trafficable width of six metres at the passing bay. • a minimum vertical clearance of four metres to any overhanging obstructions, including tree branches. • internal roads for rural properties provide a loop road around any dwelling or incorporate a turning circle with a minimum 12 metre outer radius. • road widths and design enable safe access for vehicles • curves have a minimum inner radius of six metres and are minimal in number to allow for rapid access and egress. • the minimum distance between inner and outer curves is six metres. • the crossfall is not more than 10 degrees. • maximum grades for sealed roads do not exceed 15 degrees and not more than 10 degrees for unsealed roads. Note: Some short constrictions in the access may be accepted where they are not less than the minimum (3.5m), extend for no more than 30m and where the obstruction cannot be reasonably avoided or removed. The gradients applicable to public roads also apply to community style development property access roads in addition to the above. • access to a development comprising more than three dwellings have formalised access by dedication of a road and not by right of way.

Public submissions

Seven resident objectors provided evidence at the commencement of the hearing onsite. Most of their concerns related to the approved development granted by the Council in the original consent; and to a development application for new dwellings on the subdivided lots which are the subject of a separate appeal.
Their concerns regarding the proposal can be summarised as:

The resident at 90 Malton Road is concerned that his property, including a retaining wall on his western boundary and a Lacebark Tree, will be damaged during construction.
Tree 70 and the existing trees in the road reserve near the northern corner of the site should be protected in any proposed reconfiguration of the driveway at the front of the site.
The turning area to allow an emergency vehicle to enter the site should not be accommodated on the road reserve, but should be accommodated on the site.
The proposal should include an emergency vehicle turning head so that an emergency vehicle can enter and leave the site in a forward direction and access the future dwellings on Lots 2 and 3.
The proposal is not development which is substantially the same development as the development for which consent was originally granted.

Expert evidence

The applicant relied on the expert arboricultural evidence of Catriona Mackenzie and the Council relied on the expert arboricultural evidence of Guy Paroissien.
Mr Lew Short, engaged by the applicant, gave expert evidence regarding access on the site by a fire truck.

Protection of the Eucalyptus pilularis, Tree 70

The arboricultural experts agreed that the TPZ of Tree 70 is 12m.
The arboricultural experts agreed on a list of amendments and details to be incorporated into the proposal (exhibit 3, pp 7-8). Those agreed amendments were incorporated into the amended plans in Exhibit A and two conditions drafted by experts (exhibit 7) were added to the conditions of consent.
I accept the agreement of the arboricultural experts and I am satisfied, following the amendments made to the proposal in Exhibit A and the addition of agreed conditions of consent drafted by the arboricultural experts, that the risk of damage associated with the construction of the driveway to Tree 70 and other trees located in the road reserve has been sufficiently mitigated and managed by the proposal.

Rural Fire Service requirements in the original consent

I accept the Council's submission that the amended proposal in Exhibit A coupled with the consolidated conditions of consent in Exhibit 5 meets the requirements of the General Terms of Approval issued by the Rural Fire Service on 31 May 2018 and condition 45 of the approved development in relation to access to the site.

Imposition of a new condition requiring an emergency vehicle turning head on Lots 2 and 3

The Council submitted that the Court, pursuant to the power vested in the Court by s 39(6)(b) of the LEC Act (and not vested in the Council as consent authority), should impose a condition on the modification consent to require an emergency vehicle turning head be provided on Lots 2 and 3, consistent with the dimensions for the curvature of roads in Figure 4.4 of the Planning for Bush Fire Protection publication (exhibit 2, f 579).
The original consent included condition 10(g) (quoted at paragraph 18) and the General Terms of Approval provided by the RFS as conditions 42-45. The Council submitted that these conditions do not require the applicant to provide an emergency vehicle turning head on the site consistent with the dimensions in Figure 4.4 of the Planning for Bush Fire Protection publication. It is now the Council's view that an emergency vehicle turning head should be provided on the site, despite this requirement not being imposed on the original consent, nor being requested by the RFS in their General Terms of Approval.
The concurrence of the RFS was sought by the Council in relation to the modification application and the RFS responded on 31 May 2018 (Exhibit 1, ff 211-211A) and added the words, "(over the Council nature strip as well)" to condition 45 in the original consent; presumably so that the requirements for the driveway listed in condition 45 explicitly include the portion of the driveway over the road reserve. No other changes to the RFS General Terms of Approval were made by the RFS in relation to the modification application.
The Council submitted that the concurrence of the RFS was not sought in relation to the amendments made to the proposal in Exhibit A. The Court should therefore determine the appeal where the consultation with the RFS has not taken place, pursuant to the power in s 39(6)(a) of the LEC Act, and impose a condition on the modified consent requiring the emergency vehicle turning head on Lots 2 and 3.
I do not accept the Council's submission that there is power for the Court to impose the condition sought by the Council and opposed by the applicant. The modification application before the Court is confined to the detailed design of the driveway for the crossover across the road reserve and the driveway design for a distance of 14m from the street boundary into the site. The modification application does not seek to modify the development consent granted by Council in relation to the portion of the driveway that extends to and across Lots 2 and 3. The conditions imposed on the development consent in relation to the driveway (Exhibit 1, ff 7 and 17, conditions 10(g) and 45), are not sought to be deleted by the applicant in this application and will remain imposed on the modified consent, including the addition to condition 45 requested by the RFS. There is no cumulative effect, or intensification of use, or "creep factor" of the development effected by the modification sought (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433, 442) that warrants a reassessment of the environmental impacts of the whole of the approved development. Instead, the modification is discrete and confined to the detailed design of the driveway crossover and the front portion of the driveway, in order to comply with the terms of condition 3(a) in the original consent, albeit in a configuration not envisaged by the red lines drawn on the plans of the approved development by the Council in granting development consent, but in a configuration agreed to by the arboricultural experts as best able to meet the brief of condition 3(a) whilst minimising the risk of damaging the trees in the road reserve.
The power of the Court on appeal to approve an application to modify a consent is found in s 4.55 of the EPA Act. The extent of the power to modify the development consent includes the power to impose conditions (1643 Pittwater Road Pty Ltd v Pittwater Council 11 Elvina Avenue Pty Ltd v Pittwater Council Doering v Pittwater Council 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 per McClellan CJ "1643 Pittwater" [41]). The Court must consider the matters under s 4.15 of the EPA Act relevant to the aspects of the development to which the modification application relates (1643 Pittwater [51]). The whole of the original consent is not open to reassessment.
The condition sought by the Council regards an aspect of the development which is unaffected by the proposed modification to the consent and it is not a matter that directly or indirectly relates to the modification application. The modification application does not affect the driveway over Lots 2 and 3 for which consent has already been granted. There is no necessary nexus between the proposed modification sought by the applicant to the driveway at the crossover and the front portion of the site and a requirement for the emergency vehicle turning head on Lots 2 and 3 now sought by the Council. The Council is seeking to retrospectively cure a (potential) issue that should have been addressed at the time that the original consent was granted to the development if the Council was of the view that the turning area proposed over Lot 3 was insufficient to meet the requirements of Figure 4.4 of the Planning for Bush Fire Protection publication.

Conclusion

I am satisfied that the proposal is development which is substantially the same development as the development for which consent was originally granted, pursuant to s 4.55(2)(a) of the EPA Act, because the proposal maintains the driveway in a similar position as the driveway for which consent was granted and has sought to comply with the requirements in condition 3(a) of the original consent, albeit in a changed configuration to minimise the risk of damaging the trees in the road reserve.
I am satisfied that it is appropriate to grant consent to the amended proposal in Exhibit A.

Orders

The orders of the Court are: 1. The appeal is upheld. 2. Modification Application No. 320/2015/A for the layout and detailed design of the driveway, limited to the crossover across the road reserve and the configuration of the driveway for a distance of 14 metres measured from the street boundary into the site, at 88 Malton Road, Beecroft, is approved, subject to the consolidated conditions of consent at Annexure A. 3. The exhibits, other than exhibits 3 and A, are returned.

Susan O'Neill Commissioner of the Court Annexure A (348 KB, pdf)

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: 02 October 2018

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