Urban Link Pty Ltd v Inner West Council - [2020] NSWLEC 1312 - NSWLEC 2020 case summary — Zoe

NSWNSWLEC

Urban Link Pty Ltd v Inner West Council

[2020] NSWLEC 1312

Land and Environment Court (NSW)|2020-06-19

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2020-06-19

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

Judgment

COMMISSIONER: This is a Class 1 appeal brought under s 8.7 of the Environmental Planning and Assessment Act 1979 ('EPA Act') against the deemed refusal by Inner West Council ('Council') of development application 010.2018.00000203.01 ('DA'). The DA sought consent for demolition of existing structures and construction of a one and two storey boarding house with basement parking and associated works at 32 Albert Parade, Ashfield, legally described as Lot B in DP 303757 ('site').

[2]

The site and locality

I rely on Council's Further Amended Statement of Facts and Contentions (Ex 1) for much in the way of the descriptive material which follows.
The site slopes to the south and away from Albert Parade. It is rectangular in shape with a total site area of approximately 1233m2. The site depth is some 40.36m and site width is some 30.63m. It is noteable that the opening to Albert Parade along the northern boundary is limited to some 3.4m in width.
The site is about 900m walk from Ashfield Station and a little further to Ashfield's main shopping centre. Public buses stop in Frederick Street about 120m away.
The site is currently occupied by a single storey detached dwelling house. It is adjoined by: (1) a single storey detached dwelling house to the north which is identified as a heritage item of local significance in Ashfield Local Environmental Plan 2013 ('LEP'); (2) a two storey detached dwelling house to the east; (3) three x single storey dwellings to the south (rear) all of which are within Eccles Avenue Heritage Conservation Area, as identified in the LEP; and (4) a two storey residential flat building to the west.

[16]

Evidence

Mr Bertacco's evidence was that the proposed accessway was 250mm short of the minimum width required "just for vehicular access" under the provisions within section 2.5 of Australian/New Zealand Standard 2890.1:2004 Parking facilities - Part 1: Off-street car parking ('AS 2890.1'). Mr Bertacco believed that given the proposed intensity of use "the vehicle access should comply with (AS2890.1) with additional width provided for safe pedestrian access" (Ex 8, par 6). The witness's opinion was that the driveway would need to be increased to 4.6m to provide for adequate combined vehicle pedestrian access to the site (Ex 8 par 10).
Mr Palmer acknowledged the non-compliance with section 2.5 of AS 2890.1, however indicated that, under the standard, the "minimum actual trafficable portion of the roadway" is 3.0 m. He suggested there was a safety benefit with the non-compliance as drivers would adopt a slow speed. Mr Palmer believed the non-compliance of the access width was "if anything, a benefit to pedestrians accessing the property" (ibid).
Mr Palmer referenced DS6.1 of Part 8 Chapter A of the DCP, which is concerned with parking and focuses on "(designing) for pedestrians and people with a disability" and in part provides that: "The design of the parking area and the general access to the site should consider the needs of pedestrians, with the following design considerations: • Pedestrian entrances should be clearly visible, conveniently located, and well lit and should have minimal conflict with vehicular traffic. Conflict points should be made safe with the use of contrasting materials, footpath/road markings, designated crossing areas, bollards and similar devices. • Parking areas should be designed to minimise pedestrian/vehicular conflict, with pedestrian routes clearly identified to facilities such as lifts, stairs, exits and street access points."
Mr Palmer's point was that the DCP did not prohibit shared accessways for pedestrians and motor vehicles but was more concerned with the performance of the arrangement in its setting, which he believed was satisfactory.
Under cross-examination, Mr Bertacco acknowledged that the DCP did not specify compliance with AS2890.1, but with reference to these DCP provisions, was of the view that "pedestrian/vehicular conflict is not minimised as all pedestrians accessing the site including people with a disability, the elderly and the young are forced to use the narrow vehicle access to enter or leave the site" (Ex 8, par 7). He acknowledged the access width at the actual boundary was the main point of concern. He agreed with the definition of this area as a "pinchpoint".
Mr Bertacco accepted Mr Palmer's evidence that even at peak times a vehicle would travel across the pinchpoint only once every 9.2 minutes on average. He agreed with Mr Pickles SC that the risk was "low", if a driver was "paying attention", but suggested that the consequence could be "high". He saw the fact of the ramp (which affected sight distance), and an existing tree near the site boundary, as contributing factors. Mr Bertacco agreed with Mr Pickles that pedestrian safety would be improved if this tree were replaced with a low hedge (a position which was adopted in the agreed without prejudice conditions of consent), and with the proposed "stencilling" of the pedestrian portion of the accessway. Even with changes to optimise safety, Mr Bertacco retained his concerns suggesting that with 36 lodgers each leaving the premises on foot once per day, then there would be "72 potential conflicts between pedestrians and pedestrians a day".
A series of photos were tendered showing driveways to apartments and the like in the Ashfield area. Under cross-examination, Mr Palmer indicated that he had undertaken a desktop analysis of the photos, and was not certain whether any of these photos represented driveways of the width proposed in the subject application. Mr Bertacco indicated that all the photos showed driveways considerably wider than that which existed for the subject proposal and seemed to have room for pedestrian and car access simultaneously.
There was some examination of whether the driveway gradient was satisfactory, including with a mind to the provisions at AS 2890.2:2018 - Parking facilities, Part 2: Off-street commercial vehicle facilities ('AS2890.2'). In his written evidence Mr Palmer observed that (Ex 8, par 14): "…whilst the proposed ramp grades comply with AS2890.1:2004 for light vehicles (cars, vans and the like), the proposed ramp grades do not comply with AS2890.2:2018 for SRV trucks … (however) the only SRV truck that will be entering the basement via the proposed ramp is a private contractor garbage truck."
Mr Palmer went on to conclude based on certain drawings that the SRV proposed to be used for waste removal could handle gradients of 1:4.6:1.
Mr Bertacco acknowledged under cross examination that the controls at section 3.3.3.2 of AS2890.2 did not restrict gradients to 1:6.5:1 in all instances (as had been suggested in Council's contentions). He was concerned about other service vehicles using the steep driveway, as well, and did proffer the view that a shallower driveway gradient would be better for sight distance and thus pedestrian safety and queried why this might not be possible. Mr Palmer suggested that a shallower driveway, with headroom requirements, could result in the loss of two rooms.

[17]

Findings in regard to access

The two major concerns raised here were, given the form and scale of the proposed development, whether: (1) the access width was satisfactory, and (2) the gradient of the driveway was satisfactory. There was also some consideration of the need for changes to the driveway between the property boundary and the kerb line of Albert Parade, that is, on the public road reserve. But this concern seemed resolvable on the evidence and for me was not determinative.
The width of the accessway at the pinchpoint located along the line of the subject property/road reserve boundary does not meet the standard established in AS 2890.1. This configuration could be adjudged as quite satisfactory for the existing residence. However, a development of some considerable scale is involved here, with a total of 36 potential occupants, and 13 carparking spaces and, of course, sporadic use of the basement for waste removal or likely other occasional service providers (utilities, cleaners, couriers, landscape maintenance according to the evidence). There is also two-way traffic involved.
While I acknowledge the peak generation, rate calculated at one vehicle every 9.2 minutes on average sounds low, this does not mean there would not be occasional concentrations of vehicles and pedestrians. Mr Palmer's point that the narrow width would provide a safe environment (or even a safer environment than a compliant configuration) because drivers and pedestrians would take special care in response to it, has some sense to it. It is fair to think that, usually, people would respond to the narrowness of the access.
The concern, however, and it is a significant one, is that occasionally either drivers or pedestrians would, for some unpredictable reason, not be concentrating, or be in a rush, or be subject to a combination of factors, which introduced a risk of an accident. This risk is clearly very much higher for a development of this scale than for a development which would propagate a lower level of activity, such as the existing dwelling.
The applicant's experts provided factual material (in regard to other sites), seeking to demonstrate that there were similar arrangements operating safely elsewhere. However, this material did not provide an adequate foundation for the opinion propounded by Mr Palmer in regard to overall safety, over that of Council's expert. Mr Bertacco relied on the AS 2890.1, which might be seen as enough, but the witness also provided a convincing picture of an occasional setting were a driver was not concentrating and that there was an unreasonable risk of consequence over time with a non-compliance of this form. I was convinced that this picture was founded on specialised knowledge. It assisted me here that I otherwise found this witness as particularly inclined to assist the Court in regard to development engineering aspects generally in this appeal.
The issue of the driveway gradient was generally related to the SRV truck and waste removal. The possibility of some difficulties on the relatively steep driveway were not able to be discounted altogether, leaving the potential for this to bring a further occasional complication with movement at the pinchpoint. Given the physical arrangements proposed, a stalling on the steeper driveway by the SRV was not the only possible situation which might bring about a need for a reversing out onto the public road reservation of Albert Parade, bringing further safety risk.
The finding here is that the access arrangement is substandard. I accept Mr Bertacco's evidence that for a development of the form and scale involved in this matter, the contravention of the standard brings safety risks, in particular to pedestrians.
The accessway's gradient to the basement parking and loading bay are contributory to this risk.
It was a failing of the applicant's arguments that other examples of shared vehicle/pedestrian driveways did not bring sufficient alignment with the setting proposed here to be convincing.