Wiggins v Pittwater Council

Wiggins v Pittwater Council [2006] NSWLEC 286; CASES CITED: Wiggins v Pittwater Council [2006] NSWLEC 543; Zhang v Canterbury City Council [2001] 51 NSWLR 589; Ai v Newcastle City Council [2003] 126 LGERA 194

APPLICANT Mr J Wiggins, self represented

LEGAL REPRESENTATIVES: RESPONDENT Mr D Miller, barrister Instructed by Mr M Causer, solicitor Of: Mallesons Stephen Jacques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11476 of 2005 James Joseph Kenneth Wiggins v Pittwater Council

1 On 11 April 2006 I upheld the appeal in Wiggins v Pittwater Council [2006] NSWLEC 286 and granted conditional development consent in relation to Development Application No. 214/05. This application involves the subdivision of two lots into three lots at Nos. 91 and 93 Powderworks Road, North Narrabeen. The effect of the subdivision is to create one additional vacant lot that will be able to be developed for residential purposes. This additional lot will be accessed via an existing steep accessway, which presently provides access to an existing dwelling house. A second existing dwelling house, which will occupy the third lot, will continue to have access directly off Powderworks Road.

2 The respondent subsequently appealed under s 56A of the Land and Environment Court Act 1979 and Lloyd J. set aside my decision and remitted the application for rehearing and determination in accordance with his judgment in Wiggins v Pittwater Council [2006] NSWLEC 543.

3 In that judgment [at 13] His Honour applied Zhang v Canterbury City Council [2001] 51 NSWLR 589 in so far as it was there held that, in accordance with s 79C of the Environmental Planning and Assessment Act 1979 a development control plan had to be considered as a "fundamental element in", or a "focal point of" the decision-making process. In this case the applicable development control plan is Pittwater 21 Development Control Plan ("the DCP"). The provisions therein relevant to this matter are to be found in cll B6.1 and B6.2, which clauses principally deal with the gradient of access driveways.

4 Having considered the provisions of cll B6.1 and B6.2 of the DCP His Honour held [at 16] that the headings to these clauses are not to be taken to be part of the DCP and that: Clause B6.1 applies to: new dwellings and additions to an attached dual occupancy and to a detached dual occupancy. It does not apply to land subdivision whereas cl B6.2 applies expressly to land subdivision (inter alia). Hence because the application comprises the subdivision of land it is cl B6.2 that becomes the fundamental element in or the focal point of this particular decision-making process.

5 In my judgment I said in relation to cll B6.1 and B6.2 [at 11]: I have considered these provisions and, taking into account that whilst this proposal is for the subdivision of land, it is effectively for the residential development of two dwellings. Whilst the existing driveway is to be widened, resurfaced and gradients adjusted, it is for the most part structurally sound. In the circumstances I have decided that cl B6.1 is relevantly applicable and that subject to a merit assessment, a gradient up to 33% can be acceptable. The requirement that it be certified by a qualified traffic consultant that access is safe is met by the evidence of Mr Marshall. 6 Mr Marshall was the traffic engineer who gave evidence on behalf of the applicant (Exhibits A and C).

7 Having considered this conclusion His Honour held [at 19] that: In failing to take as the basis for his determination the relevant control and by adopting instead as the basis for his determination a different (and more lenient) control the commissioner erred in law. That is, there cannot have been "a proper, genuine or realistic consideration of the provisions of the DCP" if, as here, the commissioner relied upon a different and more lenient control than that which was directly applicable. 8 His Honour also observed [at 22] that: Of course, a development control plan is not an environmental planning instrument and the determining authority may depart from its provisions, but only after giving proper, genuine and realistic consideration to its relevant provisions: Zhang at 602 [74]. Then, having done so, the determining authority may decide whether other factors under s 79C of the Environmental Planning and Assessment Act 1979 justify a variation from the standard in the DCP: Ai v Newcastle City Council [2003] 126 LGERA 194 at 210. 9 In relation to this proposed land subdivision, the task now before me, accepting, as I must, that cl B6.2 is the relevant provision of the DCP, is to give this provision proper, genuine and realistic consideration.

10 Relevantly cl B6.2 provides that: Access driveways within the development site shall have a maximum grade of 1:5 [20%]. 11 According to the engineering design drawing [Exhibit D] the driveway will have gradients ranging between 5% and 31.55% with the majority of it being between 31.55% and 31.80%, the remainder being 25% or less. Hence the proposal exhibits a significant non-compliance with the prescribed maximum. However this does not necessarily mean that the proposal, which is permissible with development consent, must be refused. A merits examination of the matter in issue is required to determine if the variation is justified.

12 Clauses B6.1 and B6.2 do not contain any objectives to assist in understanding the purpose of the gradient standards contained therein. It can however be inferred from the "variation" provision in cl B6.1 that one objective would be to ensure that access to the development to which the control applies "is safe". It is not beyond reason to assume that safety is also an important objective in cl B6.2, indeed Mr Brisby said [at 3.0] in his report [Exhibit 1]:

This control relates to the provision of safe and convenient access for land subdivisions. 13 It can also be assumed that there are other objectives associated with cll B6.1 and B6.2 including manoeuvrability generally, aesthetics and geotechnical stability although I am not aware of any serious concern in relation to these matters.

14 In the joint report [Exhibit 7] prepared by Mr Brisby (the respondent's subdivision engineer) and Mr Marshall, Mr Brisby said that: … the maximum gradient recommended in the Australian Standard AS/NZ 2890.1 - 2004 and Pittwater DCP 21 of 25% is the appropriate gradient 15 Mr Brisby reached this conclusion plainly being aware of the maximum gradient permitted by cl B6.2. Also, in his report [Exhibit 1] he acknowledged [at 2.0] that a key component of the control is the provision of access in accordance with this standard.

16 In the joint report Mr Marshall said that the proposed maximum gradients are acceptable, pointing out that the footnote to cl 2.6.2 "Gradients" in Australian Standard AS/NZ 2890.1 - 2004 ("AS 2890.1") states: … it is recognised that limiting domestic driveway grades to 25% maximum may not be practicable in some particularly hilly residential locations. The services of a professionally qualified person with appropriate experience may be required to make a judgement as to whether a particular grade line design is safe and environmentally sustainable.

17 Whilst Mr Marshall incorrectly took into account cl B6.1 in his analysis, my reading of his two expert reports [Exhibits A and C] and the joint report leads me to the conclusion (notwithstanding Mr Brisby's contrary contention) that with his recommended changes which he described as "added safety precautions" this driveway will be safe for use by two dwelling houses. As I noted in my previous judgement [at 12] these changes include: … widening to 3.5 m, resurfacing to provide maximum frictional resistance; the introduction of a signposted speed limit of 10 km per hour; the installation of two speed humps; the rearrangement of gradients at and in the vicinity of the street frontage; the provision of new steps alongside the pavement; and the provision of a properly graded turning area at the end of the driveway and a crash barrier. 18 In his first report Mr Marshall concluded [at 2.3] that: The driveway and similar steep driveways have been used safely and successfully for many years by residents and visitors. One additional dwelling will increase the number of peak hour trips from 1 to 2 and the number of daily movements from 9 to 18 based upon traffic generation data … [and] … in my opinion the driveway is suitable and safe for the intended use and is in an environment where similar standards are applied to many driveways in Pittwater Shire.

19 In deciding not to impose the 20% standard in cl B6.2 I have taken into account the provisions of AS 2890.1. I have also taken into account cl B6.1 of the DCP, which whilst not applying to the/this subdivision of land, applies to new dwelling houses (which is what this proposal will facilitate) as well as a detached dual occupancy (i.e. two detached dwelling houses). By comparison the provisions of cl B6.2 apply to developments including multiunit housing (i.e. more than two dwellings). In this regard I have ignored of the headings, although on further consideration the respective headings reflect the effect of the two clauses themselves.

20 Clause B6.1 basically limits access driveways to a maximum gradient of 20% but allows increased grades of up to 25% on their merits. It also permits variations up to 33% for existing, structurally sound driveways based on certification by a qualified traffic consultant that access is safe.

21 One can understand the approach within the DCP of allowing some flexibility for driveway gradients providing access to a new dwelling house, which plainly involves utilisation of an existing allotment. Similarly one can understand the need to impose the standard more strictly in relation to land subdivision where opportunities are likely to be available at the subdivision design stage to avoid steep accessways.

22 Taking these matters into account and bearing in mind that this proposal is essentially for the use of an existing accessway for one dwelling house in addition to the existing dwelling house it is not necessary to strictly or inflexibly apply cl B6.2. Other provisions of the DCP can of course also be considered. Hence a more flexible approach as indicated not only by cl B6.1 but also AS 2890.1 can be utilised. The ultimate test in both cl B6.1 and AS 2890.1 in relation to steep driveway gradients is whether, on the basis of an appropriately experienced and qualified person, the driveway under consideration is safe. Also, as earlier concluded safety must also be a relevant consideration under cl B6.2. In this regard as I have already indicated I accept the evidence of Mr Marshall to this effect.

23 Finally, in my previous judgment I dealt with the question of an alternative design as suggested by Mr Brisby as follows [at15]: Whilst Mr Brisby may be correct in his opinion that a different design could be produced that would reduce the gradient closer to the 25% in the Australian Standard, in all of the circumstances I have not been persuaded that this is sufficient to justify refusal of the appeal. In this regard I accept that a curvilinear design would be impractical and would significantly affect the useability of the land.

25 Hence, notwithstanding that the proposed driveway does not comply with cl B6.2 it should, on its merits, be approved. Orders 26 The orders of the Court are therefore:

2. Development application No. 214/05 for the re-subdivision of Nos. 91 and 93 Powderworks Road, North Narrabeen, is determined by the granting of development consent subject to the conditions in Annexure "A" hereto.

              T A Bly
              Commissioner of the Court
              rjs

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