Aristocratic Property Developments v City of Sydney Council
[2011] NSWLEC 1328
•11 November 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Aristocratic Property Developments v City of Sydney Council [2011] NSWLEC 1328 Hearing dates: 29 July 2011 Decision date: 11 November 2011 Jurisdiction: Class 1 Before: Whelan AC Decision: (1)The appeal is upheld.
(2)Development Consent is granted to the Development Application D/2010/1408 for the site at 108 Dunning Avenue, ROSEBERY subject to the conditions in Annexure A (attached hereto) with the following amendments.
(3)That condition (2) (b) read: "That the egress/ingress door leading from the lower ground floor parking area be located at a minimum level of 13.5m AHD.
(4)The modifications, referred to above, are to be submitted to and approved by Council or by a Private Certifier providing the Certifier has the appropriate grade of qualifications for this development".
(5)Condition (64) be added to Annexure A: "That the proposal be amended to remove the roller doors located at the building line of Jones Lane to permit the free flow of water in the event of a flood".
Catchwords: Flooding Legislation Cited: NSW Flood Prone land policy Cases Cited: Neate v Shellharbour City Council (2007) NSWLEC 234
Neate v Shellharbour City Council (2007) NSWLEC 526
Neate v Shellharbour City Council (2007) NSWLEC 654Texts Cited: South Sydney Local Environmental Plan 1998
Draft Sydney Local Environmental Plan 2011Category: Principal judgment Parties: Aristocratic Property Developments (Applicant)
City of Sydney Council (Respondent)Representation: Mr G Green (Applicant)
Ms A Pearman (Respondent)
File Number(s): 10086 of 2011
Judgment
Background
This is an appeal by Aristocratic Developments against City of Sydney (Council) refusal of a development application for the construction of a two and three storey industrial building comprising twenty-six (26) high technology industrial units with offices and retail showroom space (associated with units 1, 2, 25 and 26), together with twenty-nine (29) car parking spaces and twenty-six (26) loading bays. The proposed development is located at 108 Dunning Avenue, Rosebery.
The subject site is described as Lot 1 in DP 964015, being rectangular in shape with an area of 3054.1 sq m with frontages to Dunning Avenue to the east and Jones Lane to the west. The site previously contained a one and two storey warehouse and administration building.
The land is zoned 4 - Industrial Uses under South Sydney Local Environmental Plan 1998 (SSLEP 1998) and as light industrial under the Draft Sydney Local Environmental Plan 2011 (SLEP 2011). The proposed use is permissible with consent under the current zone.
The initial Development Application was lodged on 31 August 2010. Throughout that year the parties engaged in a process involving the submission of amended and additional documentation. Council specified that accessible car parking spaces must be designed to comply with the requirements of the new Australian Standard for accessible off street parking.
In an attempt to resolve the matter, the parties attended a s 34 conference. This conference took place on 30 May 2011. The parties were not able to settle the matter. During the conference, the parties agreed to prepare a Joint Experts' Report to focus on the flood risk associated with the proposed six car parking spaces fronting Jones Lane. The s 34 conference was terminated.
The Evidence
Council's reason for refusing the application is in these terms:
The six spaces having direct access to Jones Lane at lower ground level are not supported as they are 1.25 m below the predicted 1:100 year ARI flood level with the imposition of a positive covenant not considered to appropriately resolve the flooding issue and that the development should comply with the 1:100 year flood level design requirements.
In evidence, the parties relied upon the conclusions reached in the Joint Experts' Report dated 14 July 2011. This report was prepared by Mr Toby Fiander (Engineer and Scientist specialising in Hydrology) and Mr Peter Dryden (Risk Consultant). Both these experts were engaged by the Applicant. The third expert, Mr Raymond Higgins (Civil Engineer) was engaged by the respondent. It is noteworthy that this report was prepared in response to orders of the Court (Document Number D11-006734), in these terms:
There is to be a single joint experts report prepared in the proceedings, going solely to the issue of flooding. The experts are to jointly confer and file that report by 1 July 2011.
The Report as tendered was signed off by all three Experts.
The Applicant sought to tender an additional document titled "Supplement to Joint Experts' Report" prepared by Mr Dryden. The Respondent objected to the tender. Upon review, this document was considered not to have weight as it was prepared by one expert only without the input of the other two experts.
The experts are in agreement on the following issues:
(1) That the proposed development incorporates car parking spaces and loading dock directly accessed from Jones Lane and at approximately the same level as Jones Lane.
(2) That access to the units above from these spaces is available via an external door and stairs.
(3) That the finished floor level of the six proposed parking spaces fronting Jones Lane would be 12.15 m AHD. The minimum top of kerb level indicated by survey is 12.08 m AHD to 12.24m AHD on the northern and southern boundaries respectively.
(4) That in the event of a flood, the waters in the car park would rise quite slowly taking about 30 minutes to reach the 1 in 20 flood level and a further 30 minutes to reach the 1:100 flood level.
(5) That the users of these (parking) spaces would be associated with the businesses in the attached units and thus have access and egress available from the internal stairs or if they were not so associated they would have to access to the area by opening the roller doors and thus would have an egress route out those doors.
(6) That the maximum travel distance for a person in the garage to get to the safety of the stairs (assuming that the roller doors are closed and movement to the ramp up into the site is thus prevented) is of the order of 15 m.
In a confined area there would be a danger to persons associated with potential impacts by unstable vehicles which ''float'' due to the high water levels.
The car park area would be in effect a flood storage area in the context of a major flood event.
Council has not set a standard for the acceptable flood risk in car parks. However, Council has known of the flooding in Jones Lane and in the vicinity generally since 2007. The current level of parking restriction in Jones Lane and other roads nearby provide some indication of Council's preparedness to accept risk to motor vehicles and pedestrian safety.
While there was some disagreement, as to the capacity of a person to push away a vehicle in flow conditions, it was generally accepted that it would be better to avoid a situation which in some way restricted the movement of people around the vehicles. In other words, there is less risk to persons if there are no doors to the parking bays.
The NSW Government's Flood Prone Land Policy is intended to guide Councils in the development and implementation of detailed local floodplain risk management plans. This policy is about floodplain risk management and does recognise that flood prone land is a valuable resource that should not be sterilised by precluding its development. The policy encourages a merits approach for all development decisions in the floodplain to take into account social, economic and ecological factors, as well as flooding considerations.
It was acknowledged by the parties that if the application were to be approved then it ought to be done in such a way that no doors exist on the above described six (6) car spaces or, in the alternative, any doors would be in the form of shutters so as to permit water to flow either way from the Lane. If such were the case, this would reduce the risk to persons within the vicinity of the car spaces in the event of the 1:100 year flood event.
On the basis of the evidence before the Court, I am satisfied that I can rely on the matters referred to above.
Conclusion
Having considered the evidence, the submissions and being present at a view of the site, I am of the opinion that this proposal merits conditional consent. The main issue before the Court concerns the safety for those occupants using any one of the six (6) car spaces fronting Jones Lane, in the event of a flood.
The City of Sydney acknowledges the provisions of the Flood Prone Land Policy , referred to above. The policy does not set out to sterilise land. The site view revealed a number of new developments in the neighbourhood that are exposed to flood risk. This risk would also apply to the general public passing along Jones Lane in a flood event.
I am prepared to rely upon the general agreement of the experts that the proposal would provide an acceptable level of risk if the car park doors were removed or designed to permit through flow of flood waters. I also recognise from the evidence provided by the experts that floodwaters would rise at a relatively slow rate and would not reach high velocity flows.
There were some differences of opinion between the parties as to deferral of commencement. I am satisfied that the "Deferred Consent Condition" in PART A at paragraph (A) remains as published in these terms:
"The following deferred commencement conditions must be satisfied prior to the consent becoming operative".
I am asked to consider an amendment to "Clause (2) DESIGN MODIFICATIONS", at paragraph (b) to reflect that a private certifier may be used to approve modifications. I consider this to be reasonable, providing the Certifier has the appropriate grade of qualifications for this development.
Court Orders
(1) The appeal is upheld.
(2) Development Consent is granted to the Development Application D/2010/1408 for the site at 108 Dunning Avenue, ROSEBERY subject to the conditions in Annexure A (attached hereto) with the following amendments.
(3) That condition (2) (b) read: "That the egress/ingress door leading from the lower ground floor parking area be located at a minimum level of 13.5m AHD.
(4) The modifications, referred to above, are to be submitted to and approved by Council or by a Private Certifier providing the Certifier has the appropriate grade of qualifications for this development".
(5) Condition (64) be added to Annexure A: "That the proposal be amended to remove the roller doors located at the building line of Jones Lane to permit the free flow of water in the event of a flood".
M C Whelan
Acting Commissioner of the Court
ANNEXURE A
Decision last updated: 18 November 2011
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