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.