Avadev Pty Ltd v Pittwater Council

[2004] NSWLEC 263

Land and Environment Court

of New South Wales

CITATION:	Avadev Pty Ltd v Pittwater Council [2004] NSWLEC 263
PARTIES:	APPLICANT Avadev Pty Ltd RESPONDENT Pittwater Council
FILE NUMBER(S):	11656 of 2003
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- Section 96 to existing consent for SEPP 5 housing pedestrian safety in crossing a main road pedestrian access to services and facilities construction traffic management
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 5
CASES CITED:
DATES OF HEARING:	24/05/2004
EX TEMPORE JUDGMENT DATE :	05/24/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr P Tomasetti, barrister SOLICITORS DG Briggs and Associates RESPONDENT Mr D Miller, barrister SOLICITORS Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11656 of 2003 Hoffman C 24 May 2004

Avadev Pty Ltd
Applicant

v Pittwater Council
Respondent Judgment

1. This was a class 1 appeal No. 11656 of 2003 between Avadev Pty Ltd and Pittwater Council in regard to an application under s 96 of the Environmental Planning and Assessment Act 1979 to amend an existing consent issued on 14 July 2003 by the Pittwater Council.

2. The approved proposal was for nine units under the State Environmental Planning Policy No. 5 with basement carparking for 14 cars. The site is 678-682 Barrenjoey Road, North Avalon. The site is on the corner with Whale Beach Road and opposite across Whale Beach Road are houses in the Residential 2A Zone in which the proposal is situated. Across Barrenjoey Road, from the site is Hiscock Park which has tennis courts, playing fields and other recreational facilities on the shores of Careel Bay.

3. The site is located with a bus stop on Barrenjoey Road immediately outside the site for buses travelling towards the city and there was another bus stop outside Hiscock Park for buses heading towards Palm Beach. There were three other bus stops up Whale Beach Road quite close to the site. The combination of these would give future residents of the SEPP 5 housing good access to services and facilities. The return journey from the city or Warringah or Avalon was the concern in this s 96 application because persons would have to cross Barrenjoey Road.

4. The reason for the concern was in regard to safety because the existing consent required a pedestrian crossing and refuge near the intersection with Whale Beach Road where there were turning movements of sometimes fast moving of traffic and it was at a point where Barrenjoey Road was almost four lanes wide to accommodate the intersection. At the time of this hearing the site had changed owners and the new owners had wanted to modify the proposed works.

5. During negotiations an alternative had been arrived at and the parties agreed to consent orders. The original approval had required the RTA to give consent to any works and that had caused the council to create conditions that did not allow issue of the construction certificate until such an approval from the RTA was granted.

6. The amendment proposal did not involve works on Barrenjoey Road which was a main road that would require the RTA’s approval.

7. The parties requested when the Court was on the site, to convert the hearing of the matter from a Macquarie Street sitting to a matter that would become an onsite hearing. This request was granted. Local residents were on site and gave evidence.

8. The respondent’s evidence came from:


• Mr T Beadsmore, access consultant for the council and
• Mr P Davies, traffic engineer for the council.

9 . The applicant’s evidence was heard from:

• Mr Hewitt, traffic engineer and
• Mr Relf, access consultant


10 . Their joint reports were tendered in evidence but they were not required for cross-examination.

11 . The respondent’s oral evidence was heard from:

• Councillor Taggart of Pittwater Council,
• Mr R Moraz, resident of 674 Barrenjoey Road who lived on the opposite corner to the site and
• Mr R Stevens, resident of 690 Barrenjoey Road who was also representative of the Careel Bay Residents’ Association.


12 . Their evidence indicated community concern for the future occupants of the SEPP 5 Development which had of course been approved by the council.

13 . The main concern was the crossing of the main road by elderly or frail or disable persons. They agreed that the new location for a crossing was better than the original although it still would present some danger. Hiscock Park was heavily used and cars parked along Barrenjoey Road on busy days. Car drivers travelling along the road had difficulty seeing persons who emerged from between parked cars. It seemed to the Court that the location chosen, that was between the two entries to the carpark at Hiscock Park, was probably the best location and would afford greater sight distances to drivers in those circumstances than elsewhere. This would afford drivers and persons crossing Barrenjoey Road the best opportunity of safety.

14 . The applicant also proposed to extend footpaths in Whale Beach Road up to the three other bus stops that would facilitate use of those buses by future residents. Those other bus services were less frequent in the return journey than the bus that used the Hiscock Park bus stop, but if they were used they would be safer.

15 . There were also two neighbourhood shopping centres within walking distance of the site and the applicant was also to contribute to the cost of constructing the footpath to the better of those two local shopping centres.

16 . Other concerns of the residents about the construction traffic and resultant danger and inconvenience to main road users and those coming onto Whale Beach Road were allayed by the applicant. A further condition for a construction traffic management plan was agreed to be approved by council’s traffic engineer prior to the issue of the construction certificate. The residents would be able to make their concerns known directly to the council’s traffic engineer so that their concerns could be considered at the time of its approval.

17 . Overall the Court has found no reason to refuse the s 96 application to delete conditions B26, B70(a) and B70(b) and insert new conditions B26(a), B26(b), D221 and E89.

18 . Therefore the orders of the Court by consent of the parties are:

1. The appeal is upheld.
2. Development Consent No. 1008/02 granted by the respondent on 14 July 2003 for the demolition of existing buildings and the construction of a two storey SEPP 5 residential development comprising 9 units with basement carparking for 14 vehicles with strata subdivision at 678-682 Barrenjoey Road at Avalon is modified subject to the conditions annexed hereto and marked Annexure "A".
3. Exhibits 2 and 3 are returned to the par ties and Exhibits A, B, C, 1 and 4 are retained by the Court.

_______________
K G Hoffman
Commissioner of the Court
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Annexure “A”
Conditions of Consent
Avadev Pty Ltd v Pittwater Council
SECTION 96 MODIFICATION –
DEVELOPMENT CONSENT NO. 1008/02 GRANTED 14 JULY 2003

1. Conditions B26, B70(a) and B70(b) are deleted. 2. Insert new Condition B26(a):


“To ensure reasonable access to bus and transport services pursuant to State Environmental Planning Policy No. 5 – Housing for Older People and People with Disability, the Applicant shall carry out those works provided by the plan prepared by Connell Wagner (Drawing Title – “Proposed Roadworks Option 2” CW Project No. P538 drawing No C02 Rev 02, Undated) (“Proposed Roadworks”) as annotated in Exhibit C of this appeal.

The Applicant shall submit to the Council for its consideration and consent pursuant to the Roads Act 1993 drawings (including sectional and engineering details) for the Proposed Roadworks prior to the issue of a Construction Certificate. The Proposed Roadworks are to be approved by Council within 28 days of the date of submission to the Council.

3. Insert new Condition B26(b):
“Prior to the issue of a Construction Certificate, the Applicant shall pay to the Council in Trust by cash or bank cheque the sum of $20,000.00 as a contribution of towards the Council’s costs of construction of a footpath by the Council upon the eastern side of Barrenjoey Road/Bangalley Way at Avalon from the intersection of Whale Beach Road in a southerly direction to the North Avalon Shops.”
4. Insert new Condition D221:
“The Applicant shall submit to the Council/Council’s Traffic Engineer a Traffic Management Plan consideration detailing traffic management during the construction phase. Such Plan is to be approved by the Council/Council’s Traffic Engineer within 21 days of the date of its submission and prior to the commencement of works.”

5. Insert new Condition E89:

“The Applicant shall carry out the Proposed Roadworks [referred to in condition B26(a)] as approved by the Council prior to the issue of an Occupation Certificate.”
__________________
K G Hoffman
Commissioner of the Court
rjs