Staldone Rosedale Pty Ltd v Lane Cove Council

Land and Environment Court (NSW)|2020-10-07

Judgment

Two appeals are brought before the Court by the Applicant under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by the Lane Cove Local Planning Panel on behalf of the Lane Cove Council (the Respondent) for boarding house development on two sites that are in close proximity and are similar but not identical, at No 47 and No 51 Mindarie Street, Lane Cove.
Development Application No. DA106/2019 seeks consent for the demolition of existing structures and construction of a 6-storey boarding house containing 26 double boarding rooms (including 2 accessible rooms), 1 managers dwelling, 1 communal living room, communal open space, 2 bicycle lockers and 4 bicycle racks over 1 level of basement car parking containing 12 car parking spaces (including 1 accessible space and 1 car share space), and 6 motorcycle spaces and associated landscaping at No 51 Mindarie Street, Lane Cove (being Lot 53 in DP 35865).
Relevantly, the proposed development the subject of the two appeals are proximate, but separated by a lot at No 49 Mindarie Street that is almost identical in size, topography and controls, but is not the subject of either this appeal, or that of the related proceedings (case number 2019/309283).
As No's 47 and 51 Mindarie Street are virtually identical in size, topography, local context, and applicable controls, I propose to set out the relevant shared facts and contentions before particularising consideration of matters relevant to the subject site.
The background facts and contentions are set out separately by the Respondent in an Amended Statement of Facts and Contentions at Exhibit 2. However, as a result of experts conferring prior to the hearing, a number of contentions were resolved or further narrowed.

Approach to the proceedings

It is relevant to record at the outset that, in accordance with its usual practice at the time, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 27 May 2020 and at which I presided.
The conciliation conference was conducted in accordance with the terms of the COVID-19 Pandemic Arrangements Policy published by the Court on 23 March 2020 (March Pandemic Policy) and was undertaken via Microsoft Teams.
As resolution was not reached, the conciliation conference was terminated, and the matter was subsequently listed for hearing and the parties consented to me hearing the matter.
On 1 July 2020, the Court published the COVID-19 Pandemic Arrangements Policy (July Pandemic Policy) on the Court's website. Consistent with the July Pandemic Policy, the Court granted leave for the proceedings to commence with an onsite view with nominated persons only, and for the two-day hearing with the parties to be conducted via Microsoft Teams.
The onsite view was attended by the legal representatives and the town planning experts only. In their company, I was taken to the intersection of Mindarie Street and Willandra Street to the west of the sites, and to the intersection of Mindarie Street and Hatfield Street to the east.
The parties drew my attention to the subject sites, and the site located at No 49 Mindarie Street which is positioned between the sites. I was also taken to the street frontage of existing residential flat buildings at No 41-45 Mindarie Street, No 31-39 Mindarie Street and No 30-32 Mindarie Street to view the driveway and car parking conditions.
Written submissions from residents are contained in Exhibit 5, at Tabs 3, 18, and 40. The most recent submissions may be summarised as follows:

The height and floor space ratio (FSR) of the proposed buildings is excessive, and setbacks insufficient to avoid overshadowing and loss of privacy to adjoining properties.
Boarding house development is unsuitable in a location close to schools and parks designed for children.
The high 'turn over' of occupants in a boarding house represents an infection risk to the community.

In addition to receiving a written submission dated 18 August 2020, the Court granted leave for Mr Guy Hallowes to provide an oral submission via Microsoft Teams at the outset of the hearing on behalf of the Stringy Bark Creek Residents Association and that may be summarised as follows:

The adverse impacts resulting from the proposed development is an unacceptable precedent for the area,
The proposed development would change the character of an area that is desirable for its bushland setting.

The site and its context

The two sites are located in close proximity to each other on the northern side of Mindarie Street. Relevantly, they are separated by the site at No. 49 Mindarie Street.
The sites have identical dimensions and site area, being 15.24m in width and 36.575m in depth, with a total area for each site of 557.4m2.
Both sites are located within the R4 High Density Residential zone pursuant to the Lane Cove Local Environmental Plan 2009 (LCLEP), in an area identified as Residential Locality 6 Mowbray Precinct by the Lane Cove Development Control Plan 2010 (LCDCP).

The issues

As stated earlier, a number of the contentions originally set out by the Respondent were resolved as a result of experts conferring.
At par 62 of the joint town planning and urban design expert reports (Exhibit 7) the experts agree that the physical impacts on adjoining properties including solar access, privacy, views and visual bulk of the proposed development is acceptable. Further, the proposed development is complementary and compatible with the streetscape and landscape character. However there is disagreement as to whether any adverse impacts arise from replicating the same development on No's 47, 49 and 51 Mindarie Street.
Those contentions remaining were summarised by the Respondent as follows: 1. The proposed development, if replicated on No's 47 and 51 Mindarie Street isolates the property at No.49 Mindarie Street. 2. The resulting development is uncharacteristic of the built form in the local area. 3. Vehicular movements at No 51 Mindarie Street (Appeal 2) do not comply with Australian Standards or the LCDCP.
As compatibility with the local character is a jurisdictional matter that must be satisfied in order to enliven the grant of consent pursuant to cl 30A of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), I will address this matter first before considering whether No 49 Mindarie Street is isolated by the proposed developments, and the traffic-related matters after this.

Expert evidence

Given the matters remaining in dispute, the Court was assisted by the following experts: 1. In respect of town planning, Mr Greg Boston, expert planner for the Applicant and Mr Glenn Apps, expert planner for the Respondent. In respect of urban design, the Applicant relies upon Mr Alan Cadogan who conferred with the town planning experts. The experts conferred to prepare the joint report marked Exhibit 7. 2. In respect of traffic and waste, Ms Meg Kong Siew Hwee, expert traffic engineer for the Applicant and Mr Trevor Thornton, expert waste consultant for the Applicant, and Ms Shashika Perera, expert traffic engineer for the Respondent and Mr David Wilson, expert waste consultant for the Respondent. The experts conferred to prepare the joint report marked Exhibit 11. 3. In respect of landscape and aboriculture Ms Catriona Mackenzie, expert in arboriculture and Mr Anthony Morton, expert in landscaping for the Applicant and Mr Hugh Millington, expert in aboriculture and Mr Ted Webster, expert in landscaping for the Respondent. The experts conferred to prepare the joint report at Exhibit 9.

Statutory Framework

The proposed development the subject of Appeal 1 and Appeal 2 is for boarding house development, which is permitted in the R4 zone with consent. The objectives of the R4 zone set out in the LCLEP are in the following terms: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for a high concentration of housing with good access to transport, services and facilities. • To ensure that the existing amenity of residences in the neighbourhood is respected. • To avoid the isolation of sites resulting from site amalgamation. • To ensure that landscaping is maintained and enhanced as a major element in the residential environment.
The proposal is subject to the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).
The aims of the SEPP ARH, at cl 3, are in the following terms: The aims of this Policy are as follows - (a) to provide a consistent planning regime for the provision of affordable rental housing, (b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards, (c) to facilitate the retention and mitigate the loss of existing affordable rental housing, (d) to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing, (e) to facilitate an expanded role for not-for-profit-providers of affordable rental housing, (f) to support local business centres by providing affordable rental housing for workers close to places of work, (g) to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation.
Clause 29 (1) and (2) of the SEPP ARH provides, relevantly: 29 Standards that cannot be used to refuse consent (1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than - … (c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register - the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus - (i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or … (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds - (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, (c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, (d) private open space if at least the following private open space areas are provided (other than the front setback area) - (i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers, (ii) if accommodation is provided on site for a boarding house manager - one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation, (e) parking if - … (iia) in the case of development not carried out by or on behalf of a social housing provider - at least 0.5 parking spaces are provided for each boarding room, and … (f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least - (i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or (ii) 16 square metres in any other case. … (4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2). …
It is common ground between the parties that the proposal complies with the following standards at cl 29 of the SEPP ARH that cannot be used to refuse consent:

Floor space ratio
Solar Access
Private open space
Accommodation size

While the number of proposed car parking spaces in respect of the development does not achieve the number required to enliven the 'must not refuse' provisions' at cl 29(2)(e)(iia), the Respondent submits there is no dispute between the parties on the number of car parking spaces proposed.
The Respondent submits that notwithstanding some aspects of compliance with cl 29 of the SEPP ARH, the proposal the subject of Appeal 1 and Appeal 2 is an overdevelopment that is out of character with the Mowbray Precinct due to inadequate side setbacks, and separation distances so that the proposed developments fail to meet the 'character test' set out in cl 30A of the SEPP ARH, to which I should give significant weight and find that consent should not be granted.
Clause 30 of the SEP ARH contains standards that must be satisfied in order to enliven the power to granted consent, and the parties are agreed that the standards are complied with.
Clause 30A of the SEPP ARH is in the following terms: 30A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

The resulting development is not uncharacteristic of the built form in the local area.

The contention as originally framed in Exhibit 2, is that the proposed development should be refused because the design of the proposed development is not compatible with the existing or desired future character of the local area.
In particular, the Respondent considers that as boarding house development is similar to residential apartment development, similar side setbacks and building separation controls should apply.
I note here that the joint expert report (Exhibit 7) records the agreement of the experts on both the side setbacks (par 26), and the separation distances (par 31).
However, Mr Seton for the Respondent, presses the contention and submits that side setbacks are a feature of the dominant development type in the precinct, being residential flat buildings that, with only one exception, demonstrate a 6m side setback for the first four storeys in accordance with the Apartment Design Guide (ADG).
The exception relates to No 2-4 Pinnaroo Street and is explained by it's adjacency to Mindarie Park.
In contrast, the proposed development does not respect the likely future character with reduced setbacks such that No 51 Mindarie Street will be separated from its neighbour to the east (and vice versa), in the event that No 49 Mindarie Street is developed in a consistent form as the subject sites, by a distance of 6m, and not 12m as required by the ADG.
The combination of more narrow development on smaller allotments, and reduced side setbacks resulting in limited viewlines, is inconsistent with the emerging character of Mindarie Street that is otherwise defined by larger residential flat buildings on sites that have been consolidated.
Mr Seton invokes the Court's planning principle in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (Project Venture) to submit that the most important contributor to character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping, and in which setbacks from side boundaries determine the rhythm of building and void.
According to the Respondent, site consolidation provides greater opportunity for better site planning, more consistent streetscape rhythm and complying side setbacks.
However, according to Mr Staunton the Council now seeks to apply the provisions of the ADG, which is an adjunct to State Environmental Planning Policy No 65 - Design Quality in Residential Apartment Development (SEPP 65) despite Council electing to not give effect to SEPP 65 in the LCLEP as other Council's have.
Mr Staunton also draws my attention to the aerial photograph at Exhibit 4 which shows anything but consistency in the rhythm of Mindarie Street. The residential flat building at 31-39 Mindarie Street appears a consolidation of four or five sites while the residential flat building at 41-45 Mindarie Street appears a consolidation of three sites. The residential flat building at 2-4 Pinaroo Place is a consolidation of 2 sites.
Further, Mr Cadogan views the 'fine grain' of the proposed developments on both sites as an advantage. Firstly, in contributing southern view corridors to residents in larger development proposed immediately north of both sites at 640-646 Mowbray Road, and secondly in presenting landscaped setbacks that will read as deep façade articulation when viewed from Mindarie Street.
The town planning experts agree (Exhibit 7, par 14), as I do, that the provisions of SEPP 65 and the ADG do not apply to boarding house development in the Lane Cove local government area.
That said, the experts also consider the role those provisions should play in providing guidance to the side setbacks in this context and conclude that the setbacks proposed are not inconsistent with the ADG and will not be perceived as inappropriate or jarring in a streetscape context (Exhibit 7, par 15).
I accept the agreement of the experts that reasonable levels of visual and acoustic privacy are achieved between the proposed development and neighbouring properties due to the positioning of highlight windows to the east and west elevations, and the location of balconies, primarily, to the north and south. I also note agreement as to the benefit of fixed privacy louvres that are reflected in proposed conditions of consent (par 22).
In doing so, I note that the ADG provides for reduced setbacks where a wall facing a side boundary is to a non-habitable room, or is blank. While that is not the case in the proposed development, the treatment of the façade, with highlight windows only, is similar in my view as those windows perform a secondary function and do not permit a sightline to the neighbour that would constitute overlooking.
While the ADG does not apply to boarding house development, a 3m side setback is permitted by the ADG and so it is reasonable to assume that such a setback could be relied upon in subsequent residential apartment development in the precinct. If it is, such a setback would echo the rhythm in the streetscape as is proposed in this case and so the side setbacks proposed would not be uncharacteristic of the likely future character.
I also note the agreement of the landscape experts that while the car park basements to both sites extend to side boundaries, there is sufficient provision for deep soil to support small canopy trees to be satisfied that the side setbacks will offer the landscape view corridors suggested by Mr Cadogan.
Finally, I accept the conclusion of the experts recorded in Exhibit 9 that the landscape treatment to the front and side setbacks are consistent with front and side setbacks evident in the street (Appendix F and J).
For the reasons set out above, I conclude that the proposed development is compatible with the character of the local area in accordance with cl 30A of the SEPP ARH.

Site isolation

As stated at the outset of this judgment, the sites at No's 47 and 51 Mindarie Street are proximate, but are separated by No 49 Mindarie Street. The Respondent contends that development proposed on No's 47 and No 51 Mindarie Street has the effect of isolating the site at No 49 Mindarie and that insufficient efforts have been made to acquire No 49 Mindarie Street in accordance with the provisions at Section B.3 of the LCDCP that deals with Site Amalgamation and Development on Isolated Sites.
The Respondent notes that the provisions of the LCDCP closely align with the relevant principles and case law of the Court, and both the Court and the LCDCP requires evidence that an independent valuation was obtained and presented to the owner of No 49 Mindarie Street.
The Applicant submits in the first instance that the site is not isolated as it is agreed between the experts that a number of uses are permissible on the site at No 49 Mindarie Street, including a number of uses that are not subject to any minimum site area/lot size requirements.
Those uses include, but are not limited to: Bed and breakfast accommodation, Boarding houses, centre-based childcare, dwelling house, group home, and multi-dwelling development.
However, in the alternative, the Applicant submits that the particular circumstances of the negotiations with the owner of No 49 Mindarie Street are sufficient to satisfy the Court that other means have been used to derive a reasonable value for the site at No 49 Mindarie Street in the absence of an independent valuation.
Furthermore, the relevant provision at Section B.3, Provision (c) does not, in fact, require an independent valuation to be presented to the owner, but to the Council as follows: "c) Where no satisfactory result is achieved from the negotiations, the development application should include details of the negotiations between the owners of the properties. Council will require appropriate documentary evidence to demonstrate that a genuine and reasonable attempt has been made to purchase an isolated site based on a fair market value. At least one recent independent valuation is to be submitted as part of that evidence and is to account for reasonable expenses likely to be incurred by the owner of the isolated site in the sale of the property."
At this stage it is helpful to summarise the chronology of the negotiations between the Applicant and the owner of No 49 Mindarie Street as it appears in the Class 1 Application (B), and Appendix E of Exhibit 7.

On 31 March 2016, the sites at No's 47 and 51 Mindarie Street were advertised for public tender by the NSW Land and Housing Corporation, with a closing date for tender of 20 April 2016.
On 1 April 2016, the Applicant engages Harcourts Forest Group (Harcourts) to contact the owner of No 49 Mindarie Street, and the owner is provided with a summary of the conversation the following day.
Between 2-20 April 2016, Harcourts seeks further contact but is unsuccessful.
On 20 June 2016, the Applicant is advised of its success and contracts on the sale are exchanged for the subject sites as well as five other properties in close proximity. A price of $2,000,000 is paid for the subject sites.
On 22 June 2016, Harcourts writes to the owner of No 49 Mindarie Street to advise of the purchase of the subject sites and inviting further negotiations.
On 27 June 2016, the owner of No 49 Mindarie Street declines the invitation, suggesting a delay of one year and an outright sale.
On 1 July 2016, Harcourts advises that the Applicant would consider an outright sale, with delayed settlement suited to the needs of the owner. The owner declines in writing the same day.
In July 2017, around a year later, Harcourts makes contact by telephone with the owner who again declines the invitation to negotiate.
In August 2018, the Applicant engages Belle Property Lane Cove (Belle Property) to initiate negotiations with the owner of No 49 Mindarie Street. On 14 August 2018, Belle Property delivers by hand an offer in writing of $2,500,000 via unconditional contract, a 6 week settlement, 10% deposit, a rent free period of 6 months and an additional 6 months at half the value of market rent. The owner declines and returns the offer.
On 20 August 2018, the owner of No 49 Mindarie Street emails Belle Property to advise: "… We have no plans to sell under 5 mill, the developer may proceed to build around us, we have no objection. …"
On 2 March 2019, the property at No 2 Merinda Street is sold at auction for $2,050,000.
On 23 March 2019, the property at No 24 Mindarie Street is sold at auction for $2,000,000.
In August 2019, the Applicant lodged a Development Application for the subject sites.

While the questions expected by the Court to be addressed in matters of site isolation are relevant and sound, in this case the site said to be isolated by the proposed development is not a remnant or 'orphan' in the conventional sense, but it is virtually identical to the subject sites.
This is relevant in addressing the Applicant's initial submission as to whether the site at No 49 Mindarie Street is capable of development, absent consolidation, that satisfies the minimum lot requirements.
I find that the site at No 49 Mindarie Street is capable of development that satisfies the minimum lot requirements because, firstly, the site, being virtually identical to the subject sites, is subject to the same controls as those applicable to the subject sites and secondly, as the range of uses permissible on the site include a number of uses for which no minimum lot requirements apply.
In considering the form of development likely to be achieved on the site at No 49 Mindarie Street, I note the experts rely upon a photomontage and 3D streetscape images in Exhibit 7 re-produced below: Figure 1- Montage showing the streetscape outcome should No's 47, 49 and 51 Mindarie Street be developed independently Figure 2 - 3D contextual image showing the streetscape outcome should No's 47, 49 and 51 Mindarie Street be developed independently
While schematic, the images are sufficient to understand the relationship between the subject application and the isolated site and the likely impacts the developments will have on each other, in accordance with the principle set out in Cornerstone Property Group Pty Ltd v Warringah Council (2004) 139 LGERA 245; [2004] NSWLEC 189.
I also note that the LCDCP does not provide a 'Block Plan' for the Mowbray Precinct that would provide further guidance on the preferred arrangement of sites in the local area.
However, the relevant part dealing with 'Block Plans' in Section B.3 of the LCDCP states that "Achievement of stated objectives is the over-riding goal", and that "a priority will be the achievement of the floor space in the LEP, notwithstanding the DCP's provisions and controls."
The objectives of Section B.3 of the LCDCP are in the following terms; "The objectives for site amalgamation and development on isolated sites are: a) To provide for a development that achieves the required employment and dwelling yields. b) To encourage the promotion and co-ordination of the orderly and economic use and development of land. c) To encourage site consolidation of allotments for development in order to promote the desired urban design outcomes and the efficient use of land and to avoid the creation of isolated sites. d) To encourage the development of existing isolated sites in a manner that responds to the desired built form pattern, site context and maintains a satisfactory level of amenity."
Objective c) encourages site consolidation. The Applicant has undertaken negotiations over the course of three years for this express purpose, both before and after the purchase of the subject sites, and engaging the services of two local 'agents' that has allowed the delivery of an offer by hand to the owner of the site at No 49 Mindarie Street.

Traffic and waste

On both No's 47 and 51 Mindarie Street, car parking is proposed in a basement that is accessed via a one lane, two-way driveway with a passing bay within the front setback.
The passing bay was the subject of joint conferencing by the landscape experts, and traffic experts. The result is that, while the preference of the landscape experts is for the passing bay to be landscaped area, the quantum of landscape area is adequate and, as it was put by Mr Seton for the Respondent, in this instance 'traffic trumps landscape'.
On the eve of the hearing, Court Communication from the parties sought an amendment to orders previously made in respect of the joint conferencing of experts.
In short, during joint conferencing of the traffic experts, certain matters were identified in respect of waste collection practices that were suited to the advice of waste experts that subsequently conferenced with the traffic experts to produce the joint reports later marked Exhibit 11.
Initially, the Applicant proposed the removal of the passing bay at No 51 Mindarie Street in plans marked Exhibit F. However, the express preference of the Respondent was for the retention of the passing bay, notwithstanding concerns held for the vehicle entering and exiting the site and the plans were further amended.
The Applicant sought leave of the Court, unopposed by the Respondent, to amend the application and rely upon amended plans that reinstated the passing bay, marked with an arrow and stop line for entering vehicles. Additionally, the plans relocated the bin storage room from ground floor level to the basement level that was marked Exhibit H, tab 6.
In their oral evidence, the traffic experts were asked to address two matters in dispute, being:

Swept paths analysis for No. 51 Mindarie Street contained in Appendix C (Exhibit 11), and
The proposed means of traffic control to that is described as a 'Stop and Go traffic light system'.

Swept paths analysis for No. 51 Mindarie Street

The particulars in support of Contention 5 contend that, absent a swept path analysis, the proposed development does not appear to permit vehicles exiting the site to move to the passing bay while a vehicle entering the development is waiting within the site.
The swept path analysis contained at Appendix C of Exhibit 11 demonstrates, in Ms Perera's assessment, that an entering vehicle would not be wholly within the site while waiting for the exiting vehicle as required by the Australian Standard at AS2890.1 (the Standard).
Furthermore, the assumptions underlying the Applicant's model fails to allow for errant driver behaviour that may alter the manner in which vehicles both enter and exit the site.
Ms Kong considers the Standard to be accommodating of developments with fewer than 30 vehicle movements/hour on a local road such as Mindarie Street and which is supported by the modelling which shows no queuing impacting Mindarie Street 99% of the time.
With respect to driver behaviour, as the use of the basement car park is solely for occupants of the development, relevant protocols will be incorporated into a management regime that is in the interests of occupants to follow.
Section 3.2.2 of the Standard is contained in Exhibit H, tab 4, and is in the following terms: "Where the circulation roadway leading from a Category 1 access driveway is 30m or longer, or sight distances from one end to the other is restricted, and the frontage road is an arterial or sub-arterial road, both the access driveway and the circulation roadway for at least the first 6m from the property boundary shall be a minimum of 5.5m wide. In other cases subject to consideration of traffic volumes on a case-by-case basis, lesser widths, down to a minimum of 3.0m at a domestic property, may be provided. As a guide, 30 or more movements in a peak hour (in and out combined) would usually require provision for two vehicles to pass on the driveway, i.e a minimum width of 5.5m. On long driveways, passing opportunities should be provided at least every 30m. Reversing movement to public road shall be prohibited wherever possible."
The driveway is less than 30m in length, does not have restricted sight distances and Mindarie Street is not an arterial or sub-arterial road. Furthermore, a maximum of 5 vehicle trips will be generated per hour. On this basis, Ms Kong considers the Standard to permit a 3m wide driveway.
The concern of the Respondent is that failure to provide sufficient area for an entering vehicle may result in that vehicle choosing to stop on the street while awaiting the exit of a vehicle and so impact traffic flow on Mindarie Street. As stated at [81], Ms Kong has assessed this to be a 1% chance.

The proposed means of traffic control

As vehicle access to the basement car park on both the subject sites is via a one-lane, two-way driveway, a red-green traffic signal is proposed. While this arrangement applies to both the subject sites, the passing bay on No 51 Mindarie Street is the subject of the contention owing to it being located on the exiting side of the driveway, and not the entering. The effect of this is that the entering vehicle is caused to top short of being wholly within the site, and occupy the footpath in the event of an exiting vehicle.
As it was put to me by Ms Kong, the signal would always preference green for entering vehicles, unless the driver of an exiting vehicle used a remote device to indicate red on entry, giving 'right of way' to the exiting vehicle.
The experts agree that the probability of a conflict between vehicles entering and exiting is very low, however Ms Perera once again considers driver error may result in no remote device being used to signal an exiting vehicle.
Similarly, the Respondent queries what would prevent a driver activating the exit signal long before reaching a vehicle parked in the basement and so prolonging the time taken for an entering vehicle to be given a signal permitting entry and effectively impeding traffic flow on Mindarie Street.
The experts agree that some improvement could be made with the addition of conditions of consent requiring confirmation of the operation of the traffic signal, and the addition of a roller shutter on both sites that would assist in managing the entry and exit of vehicles.
Neither obstructing the flow of traffic in Mindarie Street, or obstructing the footpath and driveway crossing are ideal, however I accept Ms Kong's modelling and the wording of the Standard which would appear to support a driveway without a passing bay for a development generating more traffic than is proposed in the development.

The outcome of the appeal

For the reasons set out above, I conclude that the development is an appropriate application of the SEPP ARH and complies with the planning controls in the LCLEP.
In respect of the arrangement for traffic entering and exiting the site, I conclude the arrangement is acceptable for the following reasons: 1. the likelihood of a conflict between vehicles entering and exiting is remote, 2. use is by residents of the site who can be expected to be familiar with the operation of the driveway, 3. the above is assisted by the marking of a pavement arrow in the passing bay, a stop line and traffic light system marked on the plans.
Accordingly, I conclude that there is no basis to refuse the development application and it is granted subject to the conditions of consent as agreed between the parties.
The Court orders that: 1. The Applicant is granted leave to amend the application and rely upon amended plans and other documents marked Exhibit H. 2. The appeal is upheld. 3. Development consent for Development Application No. DA106/2019 seeking consent for the demolition of existing structures and construction of a 6-storey boarding house containing 26 double boarding rooms (including 2 accessible rooms), 1 managers dwelling, 1 communal living room, communal open space, 2 bicycle lockers and 4 bicycle racks over 1 level of basement car parking containing 12 car parking spaces (including 1 accessible space and 1 car share space), and 6 motorcycle spaces and associated landscaping at No 51 Mindarie Street, Lane Cove is granted, subject to conditions at Annexure A. 4. All Exhibits are returned, except for Exhibits C and H. …………………… T Horton Commissioner of the Court Annexure A - No 51 (241057, pdf) No 51 Plans (14317354, pdf)

Amendments 11 December 2020 - Administrative error corrected. 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: 11 December 2020

(2004) 139 LGERA 245

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Cases Cited (5)