Tim Stewart v Sutherland Shire Council

Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported); CASES CITED: Novara Crescent Pty Limited v Sutherland Shire Council [2004] NSWLEC 403; Winten Property Group Limited -v- North Sydney Council NSWLEC 46, 6 April 2001.

APPLICANT: Mr M Craig, QC, instructed by Ms J L Ware, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Piper Alderman RESPONDENT: Mr C J Leggat, SC, instructed by Mr C Mathieson, solicitor SOLICITORS: N/A

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11031 of 2005 - Tim Stewart v Sutherland Shire Council

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Sutherland Shire Council (the council) to attach certain conditions to development consent to subdivide two existing allotments into three at Lots 92 and 93, DP 36140, being Nos 121 - 123 Novara Crescent, Como. The development application is to be considered afresh by the Court. 2 I visited the land in company with the parties and His Honour Cowdroy J on the morning of the hearing. His Honour decided the question of law posed by the applicant and the Chief Judge concurred in the merit matter being dealt with by the Commissioner. During the site visit, local residents gave evidence. 3 I have concluded when considered under s 79C of the Environmental Planning and Assessment Act 1979, the land may be subdivided as proposed and contrary to the council's contention, Conditions 8 and 9 may be replaced with conditions that relate to vehicular access being obtained from Pavia Road. The land 4 The land is situated on the northwestern side of Novara Crescent; however, no vehicular access is proposed from that street. The land is irregular in shape with a frontage of 40.565 metres to Novara Crescent not including the corner splay, [around 54 metres excluding the splay], a frontage of 40.15 metres to Pavia Road not including the corner splay, [around 57 metres excluding the splay], a side boundary of 38.93 metres and a rear boundary of 28.65 metres and an area of some 1,590.1 square metres. 5 The land slopes down from west to east with a level difference ranging between 4 metres and 9.8 metres. There is also a cross fall of 2.5 metres at the Novara Crescent alignment. The footpath and the level of the eastern Novara Crescent frontage of the land is elevated above the roadway about 1 metre to 1.5 metres. 6 Significant mature trees exist on the land mainly on the western side and on the road reserve of Pavia Road. There are also round boulders or floaters on the western side of the land that are an impressive natural feature. 7 Erected on each existing allotments is a single-storey detached dwelling house. 8 Nearby the residential area is characterised by detached dwellings. Relevant planning controls Sutherland Shire Local Environmental Plan 2000, (SSLEP) 9 Under the provisions of the SSLEP the land is zoned 2(a1) Residential and 'subdivision' is permissible with consent. 10 The objective of the residential zone under the SSLEP is: A residential environment: (a) where the scale, amenity and general character of the area is preserved, and (b) where the streetscape is characterised by detached 1 and 2 storey residential buildings, and (c) where the predominantly single dwelling house character of a neighbourhood is not diminished by the cumulative impact of successive dual occupancy, town house or villa house developments, and (d) where non-residential uses provide necessary services to the local neighbourhood without adversely affecting the residential amenity.

11 Clause 30 of the SSLEP states: When assessing the impact of residential land uses proposed in the residential zones by development applications and whether those uses satisfy the objectives of the zone concerned, the consent authority must take into consideration the following matters and must not grant consent unless it is satisfied that those matters have been adequately addressed by relevant documentation submitted to it: (a) the impact that the proposed development may have on adjoining development, buildings and open space from loss of sunlight, views and privacy, (b) the effect of the proposed development on the quality of the streetscape, (c) the cumulative impact of successive development on the general character of the neighbourhood, (d) the impact of the proposed development on adjoining properties in terms of size, bulk, height and amount of landscaped area, (e) the retention and enhancement of existing vegetation, (f) any adverse impact on the natural and built environment, (g) the location of the proposed development in relation to potential risks, (h) including flooding, bushfire and other hazards, (i) the impact that the proposed development may have on any public area or waterbody from loss of sunlight, views and visual amenity.

12 Clause 36 of the SSLEP sets out the minimum landscaped areas applying in residential areas. In the 2(a1) Residential zone the minimum landscaped area, as a percentage of allotment area is relevantly 45%. In a foreshore scenic protection area the landscaped area is 50%. There was no principal issue that this landscaping standard would not be met in the residential redevelopment of the land once subdivided. 13 Clause 37 of the SSLEP explains the minimum allotment sizes apply in residential areas. (1) The objectives of the minimum allotment size requirements are: (a) to achieve efficient use of residential land, having regard to the existing allotment sizes across each zone, the expectations of the community and the environmental capacity of the various zones, and (b) within the 2(b) Residential and 2(c) Residential… (c) to complement the floor space ratio requirements to ensure an appropriate number of dwellings per site having regard to the characteristics of the zone. 2. The minimum size of an allotment in a residential zone is indicated in the following table: [Relevantly in the 2(a1) Residential zone for the creation of new allotments: Standard allotment - 550sqm, Internal allotments - 700sqm]. 3. The area of an access corridor is not to be included when the size of an internal allotment is calculated. 4. No minimum allotments size requirement applies in the case of the erection of a single dwelling house on an existing allotment or to the strata subdivision of land. 5. Despite other provisions of this plan, for the purpose of calculating the minimum allotment size of land at Sandy Point… 14 Under cl 38 of the SSLEP the minimum width of an allotment in the Residential 2(a1) zone is 15m and the proposal complies in this regard. Draft Sutherland Shire Local Environmental Plan 2004, (DSSLEP) 15 Under the provisions of DSSLEP the land is zoned Local Housing. 16 The DSSLEP covers the whole of the Shire (except for the Kurnell Peninsula) and was originally exhibited from 18 February to 3 May 2003 as Draft Sutherland Shire Local Environmental Plan 2003 and subsequently exhibited as Draft Sutherland Shire Local Environmental Plan 2004, from 1 December 2003 to 18 January 2004. 17 On 6 September 2004 the council resolved to carry out a limited review of the draft plan. Then, at the council meeting held on Monday 11 April 2005, it was decided to make further amendments to the draft plan and forward it to relevant public authorities for consultation pursuant to s62 of the Environmental Planning and Assessment Act 1979. It was also decided that the then Department of Infrastructure, Planning and Natural Resources be requested to issue a s 65 certificate to enable further public exhibition but the certificate has not yet been issued. 18 Subdivision is development that requires development consent in the local housing zone as set out in clause 26.4.4 in the development control tables. The proposal and its history 19 Development application No 04/1283 was lodged with the respondent council on 26 August 2004 to Torrens title subdivide two existing lots into three new lots. Details of the subdivision design are shown on Drawing No DA 04, Issue B, dated 09 November 2004 titled 'Site Setout Plan' in Exhibit B. Lot A is shown in these plans as being to the north of the land. That lot, in other plans, is shown to the south and this leads to some confusion in describing the proposal at various times in its gestation. Lot A would have an area of 529.8m2; Lot B of 530.4m2; and Lot C 529.8m2. 20 The new lots, which are not rectangular, would have direct vehicular access from Pavia Road, along a proposed accessway around 3.1m wide. The frontage along Novara Crescent, not including the corner splay, when divided into three equal parts would yield frontage widths of around 18m wide or around 15m at around 7.5m from the street alignment. 21 Indicative dwelling footprints are also shown on the plan DA04, Issue B, dated 9 November 2004. These footprints leave the western side of the land, where there are significant landscape features and trees, largely unbuilt upon. Notification 22 The original subdivision application was notified to nearby owners and occupants from 14 September 2004 to 28 September 2004 and the council received two submissions. Concerns were expressed in relation to: · Non-compliance with council's DCP with respect to lot sizes, and · The danger associated with vehicular access to Pavia Road.

23 On 21 March 2005, the council invited the applicant to submit amended plans with no lot being an internal lot and with engineering details for footpath crossings and a driveway profile for any lot having vehicular access to Novara Crescent and/or Pavia Road. On 15 April 2005 the council received amended plans for the subdivision. 24 Again, on 26 April 2005 the council notified nearby property owners of the amended subdivision application and invited written comment. The notification period expired on 10 May 2005 and two submissions were received suggesting that all three lots should gain vehicular access to and from Novara Crescent and that details of future dwellings be provided before the council determined the development application. The council's decision 25 On 18 August 2005 the council approved the subdivision application and development consent was issued subject to 41 conditions. Of relevance are Conditions 8 and 9: 8. Design Changes Required To provide safe and convenient vehicular access to the proposed lots from Novara Crescent, the following design changes shall be implemented: a) The footpath reserve in Novara Crescent shall be lowered to a 4 % grade from the top of the existing kerb, including the relocation of the existing services to the satisfaction of all Utility Authorities. Details of these design changes shall be undertaken by Council's Engineering Division and approved under the Roads Act 1993 prior to issue of the Construction Certificate.

9. Design and Construction of Works in Public Areas Council has determined that the proposed development generates a need for the following works to be undertaken in the approved Road Reserve. Survey and design plans for the following works are to be prepared by Council's Consulting Services Unit and issued by Council's Civil Assets Manager. (a) A temporary concrete footpath crossing for construction vehicle access. (b) Stormwater drainage. (c) Demolition of existing kerb and gutter at the proposed point of access and replacement with a concrete layback crossing. (d) Removal of all redundant layback crossings and reconstruction with integral concrete kerb and gutter. (e) Removal of all redundant footpath crossings and reinstatement in accordance with Council's requirements. (f) A layback crossing at the access points, such to be no closer than 6 metres to the intersection of adjacent roads. (g) Construction of three (3) footpath crossings in Novara Crescent, each to be 3.5m wide. (h) Provision of pedestrian kerb ramps at intersections. (i) Construction of a concrete footpath across the full frontage of the site. (j) Regrading, topsoiling and turfing of the footpath area to final design levels across the full frontage of the site and across adjacent properties if required. (k) Construction of a footpath crossing to the levels issued by the Council. (m) Erosion and sediment controls. (n) Any work requirements of the Development Control Plan that relates to this development site. (o) Provision of street landscaping. (p) Adjustment to public services infrastructure where appropriate.

The preparation and issue of the plans will be subject to a fee and approval under the provisions of the Roads Act 1993 , prior to the commencement of any works within Council's road reserve. A fee quotation may be obtained by contacting the Design Branch Manager on telephone 97100247. Note: In this condition, Council means the Council of the Sutherland Shire. Approval of the design plans as well as permission under the Roads Act 1993 shall be obtained from Council prior to the issue of a Construction Certificate. 26 The applicant seeks to replace these conditions with conditions that refer to providing vehicular access to and from Pavia Road along a right of way situated parallel to and above Novara Crescent, [Note: Exhibit A new Conditions 8 and 9]. By this means the applicant claims that the existing public footpath along the northwestern side of Novara Crescent would be maintained and there would be little disturbance to public utility services laid in that footpath. The hearing 27 The appeal was filed on 6 September 2005. 28 On-site the Court heard from: · Mr I Robinson, resident of No 2 Pavia Road, was concerned for the potential conflict and danger for drivers exiting his driveway, while vehicles might be exiting the proposed accessway opposite in Pavia Road. He considered that vehicular access to the land should be off Novara Crescent. His formal submission to the council was in the council's further bundle of documents, [Note: Exhibit 4, p 52, letter dated 9 May 2005] · Mr R Cummins, resident of No 111 Novara Crescent, read from a prepared statement, which became Exhibit 1. He spoke on behalf of the Novara Residents' Group with a membership of 26 households. His formal submission to the council was in the bundle, [Note: Exhibit 4, pp 53-6, letter dated 9 May 2005]. He noted the council's resolution of 21 March 2005 that each lot in the proposed subdivision is to be considered as a 'standard lot'. He urged the council to require the applicant to submit conceptual plans of the future development of the land to ensure that sufficient landscaping would be provided with the undersized lots, deficient by around 3.6% in area. He pointed to the fact that the intersection of Pavia Road and Novara Crescent is "…not ideal and needs to be improved". This, he pointed out, could be achieved if the presently unsafe intersection were reconstructed. · Mrs A Avery, resident of No 125 Novara Crescent, whose property adjoins the land, supported the application to subdivide. She was concerned for the state of disrepair of the two dwellings on the land. She objected to vehicular access being from Novara Crescent for safety reasons. Mrs Avery's submission in respect of the application dated 25 July 2005 is in Exhibit 4, p 12-16. · Mr G Simpson, resident of No 98 Novara Crescent, objected to vehicular access off Novara Crescent. He considered vehicular access off Novara Crescent "…will be suicidal because you will need to [either] back in or back out." 29 At the merit appeal hearing Mr J C Coady, was the Court-appointed town planning and traffic expert. Point of law 30 The respondent council conveniently outlined [Note: Outline submissions for Sutherland Shire Council on points of law, filed 23 November 2005] the applicant's 28 October 2005, points of law as, [Note: Exhibit A, p 1]:

1. Is Lot B shown on Drawing No DA04B amendment B dated 09/11/04 an 'internal allotment' or a 'standard allotment' for the purposes of cl 37 of the Sutherland Shire Council Local Environmental Plan 2000?
2. Is Lot C shown on Drawing No DA 04B amendment B dated 09/11/04 an 'internal allotment' or a 'standard allotment for the purposes of cl 37 of the Sutherland Shire Council Local Environmental Plan 2000? 31 His Honour Cowdroy J, in an extempore judgment given on 16 December 2005 held that both points of law raised by the applicant are to be answered in the negative. His reasons are elsewhere recorded and as I understand his Honour's decision it was based on both a literal and purposive interpretation of the definitions of 'internal' and 'standard' allotment. The issues 32 On 2 November 2005 the respondent filed a statement of issues in the merit appeal. MINIMUM ALLOTMENT DIMENSIONS 1. Proposed allotments A, B and C are unsatisfactory due to their inadequate sizes and widths, the constraints imposed by the natural landscaping and topography of the allotments, the size and location of the driveway and they do not satisfy the following: Sutherland Shire Local Environmental Plan 2000 (i) Minimum allotment size objectives (a) and (d) and the development standards in clause 37. Allotment B (the middle allotment) and allotment C (the southernmost allotment) are internal allotments as defined in clause 5 and each allotment is therefore required to have a minimum size of 700m2 while allotment A (the northern allotment) is required to have a minimum size of 550m2. (ii) Whether the development standards are unreasonable and unnecessary. Minimum allotment dimension objectives (a) and (c) and the 15m minimum allotment width development standard in clause 38. Whether the development standard is unreasonable and unnecessary. Sutherland Shire Draft Local Environmental Plan 2004 (iii) Objectives (2)(a), (c), (d), (e) and (f) and the minimum allotment site area and minimum allotment width development standards in clause 8.7(2) in respect of allotments in the Local Housing Zone. Residential Subdivision Development Control Plan (iv) The minimum allotment sizes and shapes objectives in clause 11.1. (v) The provisions of control 4 in clause 14 in that turning facilities have not been provided within the right of carriageway on the internal allotments.

STREETSCAPE AND CHARACTER 2. The proposal is inconsistent with the streetscape and character of the area, which consists of landscaped front setbacks with minimal driveway areas, particularly having regard to the size and location of the driveway across all three allotments, which will limit the ability to adequately landscape the front setbacks of these allotments, and the proposal does not satisfy the following: Sutherland Shire Local Environmental Plan 2000 (i) Objective 1(a) of the 2(al) Residential Zone in clause 33; (ii) Special considerations (b), (c), (e) and (f) in clause 30. Sutherland Shire Draft Local Environmental Plan 2004 (iii) Objective (c) of the Local Housing Zone in clause 26.4.2; (iv) Objectives (2)(a) and (b) in clause 8.1; (v) Objectives (2)(c) and (g) in clause 8.2. Landscape Development Control Plan. (vi) Controls (c) and (d) in clause 7.2.3

VEHICLE ACCESS AND MANOEUVRING 3. Access to the allotments from Pavia Road is unsatisfactory due to the grades, layout and geometry of Pavia Road and the intersection of Pavia Road and Novara Crescent, the restricted sight lines at the intersection, the potential for vehicle conflict and the steep and narrow nature and location of the driveway access in Pavia Road.

INSUFFICIENT INFORMATION 4. The application does not warrant development consent as insufficient information has been provided to enable a full and proper assessment of the application to be undertaken. In particular: (i) Details of levels, gradients, cross falls, cut and fill, retaining walls, balustrades and works within the dripline of trees on the road reserve have not been provided to demonstrate that adequate provision has been made for vehicle and pedestrian movements and to ensure that street trees will not be adversely affected (this relates to works within the allotments and on the road reserve). (ii) Insufficient information has been provided to demonstrate that adequate provision has been made for vehicles to manoeuvre within each allotment and in relation to turning facilities. (iii) Insufficient information, including levels and the location of rock outcrops and trees on the allotments, has been provided to demonstrate that suitably sized dwellings with sufficient areas of private open space can be achieved on each allotment.

MATTERS RAISED BY OBJECTORS 5. Matters raised by objectors.

NOTES: 1. These Issues are based on the plan at Annexure A, of the Applicant's Statement of Issues dated 25 October 2005, being drawing No. DA04 Issue B dated 9/11/04. 2. These Issues may need to be amended depending on the outcome of the question raised in the Applicant's document titled "Applicant's Preliminary Point of Law" dated 28 October 2005.

33 The principal-contested issues to be decided by the Commissioner in this merit appeal were: · Whether the SEPP1 objection in relation to the shortfall in the area in Lots B and C should be upheld. Clause 37 of the SSLEP specifies that a 'standard allotment' is 550m2 and Lots B and C would be 530.4 and 529.8m2 respectively and deficient of area by around 4%. Lot A is also deficient by around the same amount. The council says that in the absence of vehicular access from Novara Crescent the underlying purpose of the planning standard is not capable of being achieved. · Second issue relates to streetscape and character and the council says that the character of the area is one of landscaped front gardens with minimal driveways. The applicant by proposing a 'gun-barrel' driveway would not meet the objectives relating to streetscape and character. · Third issue is that of traffic safety: The council says that the Pavia Road intersection, according to residents, is not operating in a particularly satisfactory or safe manner and to obtain vehicular access therefrom would be likely to increase the danger of an accident. The evidence and findings SEPP1 objection to site area 34 Mr Craig, QC, submitted that the question of State Environmental Planning Policy No 1 (SEPP1) objection was adequately considered by Mr Coady in his statement of evidence and "…no offence would be had to the objectives of cl 37 of the SSLEP" as he opines and given the residential zoning of the land the need to provide for vehicular access to each proposed new lot, "…militate in favour of the proposition that, in the circumstances of this case, compliance with the site area standard would be unreasonable or unnecessary". He submitted as a consequence, for the discretion under SEPP1 to be exercised and the objection be upheld and consent granted. 35 Mr Leggat, SC, submitted that in the absence of vehicular access from Novara Crescent the underlying purpose of the planning standard is not capable of being achieved. He submitted that Mr Craig had not addressed the Court in terms of the decision of Winten. He submitted that the underlying purpose of the standard to provide landscaping consistent with that in the locality in the proposed front yards would not be met. He then posed the question. "How can it be said that the standard is unreasonable or unnecessary?" 36 An SEPP1 objection to the site area standard of the SSLEP was contained in Exhibit 3, pp 35-40, prepared by Jekaam, - Planning, Buildings and Developments. 37 Mr Coady, the Court-appointed expert, dealt with the SEPP1 objection to the site area standard of 550m2 at pages 13-5 of his statement of evidence in Exhibit 2. He concluded that: "…the non-compliance with the minimum allotment dimensions …represent [neither] adequate nor appropriate grounds for refusal of consent." 38 I have considered the SEPP1 objection to the allotment size standard of the SSLEP in the light of the decision of his Honour Lloyd J in Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001 paras 22 - 26. His Honour at para 26 stated that in applying the principles of Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported): …it seems to me that SEPP1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection well founded? In relation to the fourth question, it seems to me that one must look to see whether a development, which complies, with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case. 39 Taking each question posed by his Honour Lloyd J and answering it: · the parties accepted, as do I, that planning control in cl 37 of the SSLEP relating to site area, is a development standard. · the underlying object or purpose of the standard is that set out in objective (a) and (d) of cl 37 of SSLEP and centres on efficient use of residential land. Mr Coady was satisfied that the proposed subdivision would achieve that objective to achieve efficient use of residential land. I accept his evidence. Also he was satisfied that the proposal would not conflict with the objective in respect of community expectations. Objective (b) does not apply in the Residential 2(a1) zone. There is no objective (c) and objective (d) relates to density and there was no objection taken by the council in this respect. · is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act? Mr Coady was satisfied that objectives of cl 37 of the SSLEP would not be significantly compromised. I am satisfied that under this heading the subdivision application is consistent with the intent of the underlying purpose of the lot size standard and would result in the orderly and economic development of land. · Fourthly, I am satisfied that the proposed 4% non-compliance with the development standard would not be unreasonable or unnecessary in the circumstances of the case. The proposal would not be significantly different from that of a complying development and I am satisfied that the subdivided land could be developed for dwelling houses without undue adverse environmental impact. · Fifthly, I am satisfied that the objection well-founded. 40 I would not refuse the application for reason of the non-compliance with the site area standard. Streetscape and character 41 The council maintained that the proposed subdivision would be inconsistent with the streetscape and character of the area. Of particular concern for the council was the likely impact on the landscaped front setbacks. 42 In order to properly assess the council's contention it is necessary to compare the likely impact of a proposal for vehicular access for two lots off Novara Crescent, or with vehicular access for all three allotments off Novara Crescent with the applicant's preferred position, for all vehicular access off Pavia Road along an accessway. 43 The proposal for vehicular access off Novara Crescent for two allotments is shown in plans in Exhibit 4, pp 16, and 59. The council, by imposing original Condition 8 in the interests of pedestrian safety required the footpath in Novara Crescent be lowered to the level of the top of the kerb with a grade along the new council footpath of less than 4%. The proposed profiles of the levels across the Pavia Road frontage and across the Novara Crescent frontage are shown in diagrams attached to a letter from Mr J F Hollis of Colston Budd Hunt and Kafes Pty Limited in Exhibit 4, pp 41-5. In order to provide for safe sight distances for drivers entering onto Novara Crescent, the sides of the excavated driveways would need to be battered at a slight angle to the horizontal and this would necessitate removal of much of the retaining wall and earthen fill along the Novara Crescent frontage. Significant longitudinal excavation would be required to provide appropriate levels for the public footpath. Also, Condition 9 of the council's consent would require the applicant to address stormwater and utility services and these would likely require further excavation. Although there are no plans to show the extent of excavation along the Novara Crescent frontage of the land for the council's preferred scheme, I am satisfied that such excavation would be extensive. As a result there would be only limited opportunities for augmenting landscaping along the Novara Crescent frontage. This would have the likely effect of creating an almost treeless environment in the vicinity of the Novara Crescent frontage of the land. 44 The proposal preferred by the applicant, is shown in Exhibit B. On this plan Lot A is shown at the northern end of the land. This plan would not require any excavation along the council's verge in Novara Crescent, and would leave opportunities for tree planting in the council verge in Novara Crescent. Within the Novara Crescent front setbacks of each of the new allotments there would be area available for deep soil landscaping. This would be despite the need to have an accessway at grade in the front of each allotment and a turning circle in front of Lot C at the southern end of the land. There would be some impact on the council's verge in Pavia Road however; it is unlikely that any large trees would be disturbed. 45 Modifications to the design of the accessway, in plan, to comply with the Australian standard for roads (AS 2890.1-2004) are shown in Exhibit 2, p 16. These modifications, suggested by Mr Coady, would require the flaring of the intersection of the proposed accessway at its intersection with Pavia Road and additional manoeuvring area for Lot C at the southern end of the land. The dwelling conceptual layouts indicate that in the front setbacks there would remain deep soil landscaping. 46 Mr Coady was of the opinion that the provision of an accessway off Pavia Road for the proposed three allotments, rather than separate driveways off Novara Crescent, would be likely to produce a superior result for the streetscape and character of the area. The proposal for access off Pavia Road alone would be similar to other properties to the north that have vehicular access off Pavia Road. The elevated nature of the proposed driveway would ensure that the pavement of the new accessway would not be visible from viewpoints in Novara Crescent. The proposed accessway would be unlikely to impact greatly on trees and other vegetation in the Pavia Road verge. 47 A deferred commencement condition is imposed to ensure that the applicant prior to the issue of a construction certificate provides the exact detail of the intersection of the accessway and Pavia Road. On the site inspection I was satisfied that the levels in the verge of Pavia Road would facilitate reasonable vehicular access. 48 I would not refuse the application to subdivide for reason of adverse visual impacts on the streetscape and character of the area. Traffic safety 49 This was of primary concern to the residents who gave evidence. Four residents gave evidence in this regard and two residents supported vehicular access off Novara Crescent and two did not. Those who supported vehicular access from Novara Crescent were those living on Pavia Road. This road was originally and is still used to give access to railway land and to access around 26 properties that because of the topography cannot obtain vehicular access from Novara Crescent. Those residents who were opposed to vehicular access off Novara Crescent lived in that street and knew of the dangers of backing onto it. 50 Mr Coady assessed the town planning and traffic safety aspects of vehicular access being obtained from Novara Crescent and was inclined to agree with the opinion of Mr R Barnes Civil Assets Manager in an email dated 22 December 2004, [Note: Exhibit 2, p 9] As discussed, access to the site from Novara Crescent is unacceptable due to the impacts on the retaining wall, footpath area, and public utility services as a result of the need for excessive excavation. There would also be the need for excessive battering to ensure acceptable sight distance through the cutting required to provide access from Novara Crescent. A more suitable outcome would be a single access from Pavia Road… to minimise the impact on Novara Crescent and the streetscape. 51 Mr Coady concluded that: "…unless there are compelling allotment size or streetscape reasons for excluding access for the proposed three allotments off Pavia Road, then access for the proposed three allotments should be provided in that way." 52 Despite the limited sight distances in Novara Crescent due to topography, I am satisfied that it would be preferable to gain vehicular access to the land from Pavia Road rather than to force drivers onto Novara Crescent down a driveway off the land. I accept the local knowledge of Mrs Avery and Mr Simpson as to the dangers associated with backing onto or off Novara Crescent. Mr Simpson was particularly graphic in his description of the manoeuvre and he attested to the high speed of traffic in Novara Crescent, likely to exacerbate adverse safety impacts. I am satisfied that from a safety point of view it would be safer to enter the land from Pavia Road rather than to increase the number of access points from private dwellings onto Novara Crescent. The evidence suggests that there has been no reported traffic accident at Pavia Road despite about 26 households using that intersection for over five years. 53 I distinguish the present case from Novara Crescent Pty Limited v Sutherland Shire Council [2004] NSWLEC 403 decided by her Honour, Pain J on 4 June 2004. In that case seven two-storey townhouses with basement carparking were proposed with vehicular access off Pavia Crescent. However, during those proceedings, the applicant was prepared to amend the architectural plans to provide all vehicular access to the basement car park from Novara Crescent. This was made possible by reason of the basement floor level being at around the same level of the pavement in Novara Crescent. Despite this concession in respect of vehicular access, the application was refused by the Court for other reasons including; the adverse impact of the proposal on the existing and future intended character of the area; the streetscape appearance of the proposal; non-compliance of the proposal with the allowable floor space ratio and the loss of some significant trees. Those impacts were not the principal contested issues in this case. The present proposal: · would have a density limited to three households as opposed to seven; · would not impact on any significant trees on the land; · would not have any adverse visual impacts on the streetscape or character of the area; · would not have a basement at the level of the road and thus the opportunities for accessing the land from Novara Crescent are limited. 54 For the above reasons, the appeal is upheld. Conditions 55 The conditions are those in Exhibit 4, pp 23-33, as amended during the hearing to include a deferred commencement condition in Exhibit 8. I have deleted the original Conditions 8 and 9 and added new conditions, [Note: Exhibit A, Annexure B]. These conditions were further amended in the emailed set of conditions that were agreed between the parties. 8. Design Changes Required To provide safe and convenient vehicular access to the proposed lots from Pavia Road, the following design changes shall be implemented: (a) Construction of a reinforced concrete Right of Carriageway 150mm thick with a minimum constructed width of 2.75m between the vehicular footpath crossing in Pavia Road and the common boundary between proposed Lots B and C. This Right of Carriageway construction is to match Council's issued vehicular footpath crossing profile at the boundary line of Pavia Road and its gradients and transitions are to comply with the requirements of Australian Standard AS2890.1-2004. (b) Dedication of the Right of Carriageway servicing proposed Lots A, B and C as part of the Linen Plan of Subdivision. Details of these design changes shall be undertaken by Council's Engineering Division and approved under the Roads Act 1993 prior to issue of the Construction Certificate.

9. Design and Construction of Works in Public Areas The Council has determined that the proposed development generates a need for the following works to be undertaken in the approved road reserve. Survey and design plans for the following works are to be prepared by the Council's Consulting Services Unit and issued by the Council's Civil Assets Manager. (a) A temporary concrete footpath crossing for construction vehicle access. (b) Stormwater drainage. (c) Demolition of existing kerb and gutter at the proposed point of access and replacement with a concrete layback crossing. (d) Removal of all redundant layback crossings and reconstruction with integral concrete kerb and gutter. (e) Removal of any redundant footpath crossings and reinstatement in accordance with the Council's requirements. (f) A layback crossing at the access point in Pavia Road is to be no closer than 6 metres to the intersection of Novara Crescent. (g) Construction of a footpath crossing in Pavia Road to be a maximum of 5.5m wide, including pedestrian safety devices where grades equal or exceed 12.5%. No retaining walls are to be constructed within the road reserve of Pavia Road associated with this vehicular footpath crossing. (h) Provision of pedestrian kerb ramps at intersections. (i) Construction of a concrete footpath across the full frontage of the site. (j) Regrading, topsoiling and turfing of the footpath area to final design levels across the full frontage of the site and across adjacent properties if required. (k) Construction of a footpath crossing to the levels issued by the Council. (l) Erosion and sediment controls. (m) Any work requirements of the Development Control Plan that relates to this development site. (n) Provision of street landscaping. (o) Adjustment to public services infrastructure where appropriate. The preparation and issue of the plans will be subject to a fee and approval under the provisions of the Roads Act 1993 , prior to the commencement of any works within Council's road reserve. A fee quotation may be obtained by contacting the Design Branch Manager on telephone 97100247. Note: In this condition, Council means the Council of the Sutherland Shire. Approval of the design plans as well as permission under the Roads Act 1993 shall be obtained from Council prior to the issue of a Construction Certificate. 56 Contrary to the submission of Mr Craig, QC, I have also added the deferred commencement condition sought by the council. Mr Craig submitted that the construction of the accessway is not the subject of the subdivision application and would only be necessary once dwellings are erected. I do not agree and consider the accessway integral with the subdivision application and although some aspects of the accessway are included in Conditions 8 and 9, I consider there is a need to further elaborate by way of the deferred commencement condition. 57 In that deferred commencement condition I have maintained the prohibition on the construction of retaining walls within the road reserve of Pavia Road. Thus it might be necessary for the applicant to bridge over tree roots in the Pavia Road verge. DEFERRED COMMENCEMENT To enable the submission of further information to clarify or to resolve specific aspects of the proposed development, this Development Consent is issued as a "Deferred Commencement" Consent under the provisions of Section 80(3) of the Environmental Planning and Assessment Act 1979, as amended. The Consent shall not operate until the Applicant satisfies the Council as to the full details of the design of the proposed right of carriageway within the property and across the footpath area of Pavia Road. These details shall include but not be limited to the longitudinal gradients, crossfalls, internal retaining structures if required, widths, turning circle radii, pedestrian safety measures and proposed materials. Construction of retaining walls within the road reserve of Pavia Road shall not be permitted. Costs 58 As there were no submissions made in respect of costs, I make no order in this regard. Orders 59 My orders are:
10. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. The State Environmental Planning Policy No 1 objection to site area referred to in cl 37 of the Sutherland Shire Local Environmental Plan 2000 is upheld.

3. Development application No 04/1283 lodged with the respondent council on 26 August 2004 to Torrens title subdivide two existing lots into three new lots at Lots 92 and 93, DP 36140, being Nos 121 - 123 Novara Crescent, Como, is approved subject to a deferred commencement condition and Conditions 1 to 41 in Annexure A.

4. The exhibits are returned, with the exception of Exhibits A, B and 8.

The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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