Adamovic v Pittwater Council

[2009] NSWLEC 1373

Land and Environment Court

of New South Wales

CITATION:

Adamovic v Pittwater Council [2009] NSWLEC 1373

PARTIES:

APPLICANT
Milka Adamovic

RESPONDENT
Pittwater Council

FILE NUMBER(S):

10378 of 2009

CORAM:

Dixon C

KEY ISSUES:

DEVELOPMENT APPLICATION :- turning bay and double car stand area

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

30 October 2009

EX TEMPORE JUDGMENT DATE:

30 October 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr O Friscan, (agent)

RESPONDENT
Mr Larkin (counsel)
SOLICITOR
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Dixon C

30 October 2009

10378 of 2009 Milka Adamovic v Pittwater Council

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1 The applicant has consent to construct a new turning bay and double car stand area on Lot C in deposited plan 413098 also known as 62 Alexander Crescent, Bayview. The consent does not operate until council is satisfied that the applicant has complied with two deferred commencement conditions in Part A of development application N006109.

2 The conditions read:

1. The provision of fully dimensioned plans showing the location of the sealed driveway including the existing paved driveway and the necessary extensions to that existing driveway sufficient to provide sealed access to residential traffic in accordance with the relevant Australian Standard ASNZ-2890.1/2004 B85 (85th percentile) car.
2. Creation of additional right(s) of way over the adjoining property, 1961 Pittwater Road, Bayview, benefiting the subject land sufficient to contain any part of the sealed driveway referred to in deferred commencement condition 1.

3 At the commencement of the hearing it was agreed that the applicant has not produced fully dimensioned plans in accordance with deferred commencement condition 1 or created any additional right of way over his neighbour’s land, Lot A in DP413098, in accordance with deferred commencement condition 2. The applicant, represented by his agent Mr Friscan, a qualified engineer, seeks to activate the consent without the need to comply with the two deferred commencement conditions and has lodged this development appeal.

4 There are essentially two issues in this appeal, the applicant argues that a B85 vehicle can access the double car stand area via the existing right of way as established by the subdivision without any additional right of way over Lot A. The council contends the applicant cannot. The applicant argues he does not need to provide any further detailed drawings or a sealed access to the hardstand car area. The council submits he does.

5 Following a view of the site and adjoining properties and a consideration of the evidence and submissions I have decided that the applicant’s appeal should be dismissed and the council’s consent stand as issued. The appeal is dismissed.

BACKGROUND

6 At the outset I refer to the attached copy of DP413098, which I have scanned into the judgment at Figure 1. It shows the boundaries of the subject site Lot C DP 413098 and its relationship with the adjoining lots. It shows the existing 10 foot right of carriageway way over Lot A (also known as 1961 Pittwater Road, Bayview ) in favour of the applicant’s land which is the subject of deferred commencement condition 2 in these proceedings.

7 The agreed statement of facts filed by the parties acknowledges that the applicant has two points of access to his land: at the front from Alexander Crescent via a right of carriageway and at the rear by a right of carriageway, that burdens Lot A.

8 Two drainage easements are located along the north western boundaries of the applicant’s site and the land falls some fourteen metres or twenty-nine per cent from its high south boundary to the low north east boundary.

9 The parties acknowledge that a power pole is located near the north western corner of Lot C in the access corridor of Lot A to Pittwater Road, within the right of carriage way area, benefiting Lot C and may or may not impede access. It is accepted that any relocation of the pole is a matter outside this application.

10 The hearing commenced on site and allowed me an opportunity to inspect the site and neighbouring properties and to hear oral evidence from the owners of Lot A and their engineering consultant, Mr Jones, the owners of 1961 Pittwater Road, 1957 Pittwater Road, and the owner of 64 Alexander Crescent. I also received copies of all written objections to the application as part of council’s bundle.

11 The neighbours collectively voiced concern about the applicant’s lack of communication with them in respect of his development of the site and the proposed access to the approved hardstand car area. They were unsure of the location of the applicant’s proposed driveway access and the impacts such development would have on their amenity. They were particularly concerned about the drainage and landslip implications of any development. Relevantly, no attempt has been made by the applicant to negotiate any further right of carriage access with the owners of Lot A.

Planning Controls

12 There is no dispute about the permissibility of the development, the lot is zoned Residential 2(a) (Residential a) under the LEP and the development is permissible with consent. The relevant planning controls are detailed in the amended statement of facts and contentions filed with the court on 29 September 2009. In particular I was taken to the relevant controls in the Pittwater 21 Development Control Plan - Amendment 4 (DCP21), specifically B6.3 Internal Driveways/Dwelling Houses and Dual Occupancy and B6.5 – Off Street Vehicle Parking Requirements – Dwelling Houses, Secondary Dwellings & Dual Occupancy, and The Australian/New Zealand Standard: Parking Facilities –Part 1, Off Street Car Parking (AS/NZS2890.1:2004).

13 The parties agree that the relevant design vehicle for the purposes of determining the feasibility of access is the vehicle described and dimensioned as B85 vehicle in the Australian Standard and for the purpose of the joint statement that vehicle was agreed to have the dimension of 1.87 wide width a side length of 4.65m.

Inadequate Access to Proposed Car Stand Area:

14 Mr Jones on behalf of the owners of Lot A prepared an engineering report which was tendered by the council. The report describes the adjoining property at 1961 Pittwater Road (Lot A) as a battleaxe Lot accessed by a long battleaxe driveway from Pittwater Road. The access, according to Mr Jones, is some sixty metres long and rises 10.5 metres becoming steeper at the entry to Lot A. The applicant is entitled to use this access to his site including a right of carriage way ten foot wide over the north corner of Lot A in favour of Lot C. The area is marked “Y” on the plan of subdivision, which is reproduced at figure 1.

15 The right is established on title for lots A in DP413098 and dealing number H242026. The terms of the right of carriage way are et out in the Memorandum of transfer Dealing no, 8665552. The rights convey limited use for Lot C for to private vehicles and the applicant’s evidence is for private use only. The applicant’s engineering evidence from Mr Friskin is that the existing right of way is sufficient to allow a B85 vehicle to manoeuvre into the car stand area on Lot C without further encroaching on Lot A. The applicant expert evidence is that the manoeuvre is constrained but achievable.

16 The council contends through its evidence that in order to provide for the travel path of a B85 vehicle between the proposed car stand area and Pittwater Road additional rights of way over the adjoining property Lot A is required as the travel path of a B85 cannot be accommodated within the existing right of carriageway. The council’s evidence is that any access must be set back by 300 mm from the adjoining boundary at 1957 Pittwater Road and is to be a minimum width of 2.4 metres under the controls.

17 The parties agree that the existing access allows a clearance of 88 mm each side of a B85 car during the manoeuvre into the car stand via a straight line of travel. Mr Jones, consultant engineer, concluded in his report tendered by council that depending on the final design of the driveway, the speed of the vehicle, the angle of the entry, his investigations demonstrated an encroachment varying from a minimum of .9 metres squared up to a maximum of 11.6 metres squared was required. He concluded that it is not possible for the applicant to prepare an Australian Standard-compliant design, which can fit within the existing right of carriageway on Lot A benefiting Lot C.

18 The applicant’s evidence did not displace Mr Jones’ or the council’s engineering and planning evidence. I do not accept the applicant’s submission without supporting evidence that a B85 vehicle could manoeuvre into the car stand area without further encroaching upon Lot A. I do not accept the applicant’s design solution of placing retractable bollards on the ground to guide the vehicle into a successful manoeuvre into the car space achieves the DCP objectives. I accept the council’s engineering evidence that the existing access is not wide enough to accommodate the B85 vehicle within the existing access way.

19 The applicant also submits that the right of carriageway can be moved. The applicant submits that the existing right of carriage way, as described to be ten foot wide over the northern corner of Lot A in favour of Lot C need not be in its current position or shape, it could be changed.

20 The interpretation of the instrument describing the right of carriage way was not an issue which the parties had raised in the facts and contentions, however, the joint planning report does comment on it apparently because Mr Friscan raised it.

21 As a consequence, during the hearing the court attempted to understand the applicant’s submission on this issue of the interpretation of this instrument. Mr Larkin of counsel, dealt with the applicant’s submission on the issue after the council’s were also invited to contradict the applicant’s understanding. I do note that it was a matter outside the anticipated issues and did in fact unnecessarily extend the hearing time. I do not need to make any further comment on the interpretation of the terms of the easement other than to express my view that the instrument is clear on its face, the right of carriage is the fixed position as indicated by the “Y” shown in the plan. I accept the evidence of Mr Dyce, council’s expert that the extent of the right of carriageway is as defined by the dimensions taken from DP413098 as referred to in memorandum of transfer H66552.

22 I prefer the evidence of the council on the issue of the adequacy of the existing driveway.

23 Mr Brisby, council’s senior engineer, in the joint report prepared with the applicant’s engineer Mr Friscan, expresses the opinion that it is essential that the access drive way is made from a formed pavement of concrete, asphalt concrete, block pavers or reinforced grass cells for the following reasons:

1. Likely traffic movements being nine vehicle trips per day (from RTA -Guide to Traffic Generating Development),
2. A change in height of approximately 600 millimetres over a 1.2 metre distance,
3. Vehicles will be manoeuvring in a turning motion.

24 Mr Brisby’s assesses that without formed pavements in time the use of the access way will deteriorate the natural ground and cause erosion and ultimately make vehicle access difficult and unsafe.

25 I do not accept the applicant’s evidence that a removable hinged steel gate could be lowered onto the right of way each time a vehicle enters or leaves the site. This treatment (which is described as temporary pavement) is not a viable or appropriate resolution of the issue based on the engineering and planning evidence of the council. The applicant’s solution does not on the evidence provide a stable, safe surface for all weather conditions as is the objective of the council’s DCP controls.

26 The applicant tendered photographs of other grassed access corridors apparently within council’s area. It is not clear how the applicant believes such photographs may be of any relevance to this application. I am not clear as to what controls apply to those sites in the photos tendered by the applicant. I reject the applicant’s evidence on this issue and accept Mr Brisby’s expert opinion as to the appropriate finish to the driveway.

27 The evidence of council is consistent with the need for the applicant to address the matters raised in the deferred commencement conditions in part A of the consent any use of the hard stand car area.

28 Ultimately the issue of extending the right of way to allow access for a B85 vehicle is a private law matter between the applicant and the owner of Lot A. I note that at this stage the applicant has not attempted to negotiation or even raise the issue with his neighbour. It would appear that opportunity still exists for such discussions. However, unless the applicant satisfies to the satisfaction of council the deferred commencement conditions in Part A of council’s consent within twelve months of its issue, the opportunity to activate the consent will lapse in accordance with clause 95(3) of the Environmental Planning and Assessment Regulation 2000.

29 I make the following Orders:

1. The applicant’s appeal is dismissed.
2. I uphold council’s consent DAN006109, and part A in particular conditions 1 and 2.
3 I reserve costs.

___________________

Susan Dixon
Commissioner of the Court
ljr

Figure 1