Benson McCormack Architects v Manly Council
[2013] NSWLEC 1223
•27 November 2013
This decision has been amended. Please see the end of the decision for a list of the amendments.
Land and Environment Court
New South Wales
Case Title: Benson McCormack Architects v Manly Council Medium Neutral Citation: [2013] NSWLEC 1223 Hearing Date(s): 19 & 20 November 2013 Decision Date: 27 November 2013 Jurisdiction: Class 1 Before: Dixon C Decision: (1)The appeal is dismissed.
(2)Development Consent is refused for the construction of a boarding house in accord with development application no: 94/2013 on land known as Lot 5 DP9335 at 232 Sydney Road, Balgowlah.
(3)The exhibits will be returned upon publication of this judgment except for exhibits A, H and 2.Catchwords: Appeal - development on land with frontage to classified road - satisfaction as to whether the safety, efficiency and ongoing operation of the classified road will be adversely affected by the development as a result of the design of the vehicular access to the land Legislation Cited: Environmental Planning and Assessment Act 1979
Roads Act 1993
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy (Infrastructure) 2007Cases Cited: Modern Motels Pty Limited v Fairfield City Council [2013] NSWLEC138 Category: Principal judgment Parties: Benson McCormack Architects (Applicant)
Manly Council (Respondent)Representation - Counsel: Mr G McKee (solicitor) (Applicant)
Mr A Seton (solicitor) (Respondent)- Solicitors: Solicitors
McKees Legal Solutions (Applicant)
Marsdens Law Group (Respondent)File Number(s): 10529 of 2013
JUDGMENT
COMMISSIONER: This is an appeal under s 97(1) of the Environmental Planning Assessment Act 1979 (the Act). It concerns a proposal to construct a new generation boarding house under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 ('ARH SEPP') on land known as 323 Sydney Road, Balgowlah. Sydney Road is a classified road within the meaning of that Policy.
Because the site has a frontage to a classified road the Court cannot grant consent to this development unless it is satisfied that the pre conditions expressed in cl 101(2) of the State Environmental Planning Policy (Infrastructure) 2007 ('Infrastructure SEPP') are met.
Clause 101 provides:
(1)The objectives of this clause are:
(a)to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and
(b)to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.
(2)The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that:
(a)where practicable, vehicular access to the land is provided by a road other then a classified road, and
(b)the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of:
(i)the design of the vehicular access to the land, or
(ii)the emission of smoke or dust from the development, or
(iii)the nature, volume or frequency of vehicles using the classified road to gain access to the land, and
(c)the development is of a type that is not sensitive to traffic noise of vehicle emissions, or is appropriately located or designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.
The only expert traffic evidence given in this case was from the applicant's consultant Mr Pindar. In summary he supported the proposed vehicular access to the development subject to a widening of the driveway giving access to the classified road, although he appreciated that the applicant had not obtained the RMS approval to widen the driveway at the time of the hearing. Egress from the development site necessitated vehicles to reverse onto the classified road.
In addition to the above evidence, Mr Pindar was asked about the matters raised by cl 101 of the Infrastructure SEPP, particularly those matters referred to in subclause 2(b). In response to a series of questions, he gave evidence that the safety, efficiency and ongoing operation of the classified road would be "slightly" adversely affected by the development as a result of the design of the vehicular access to the land.
On the basis of that evidence, the Council submitted that the Court could not be satisfied as required by cl 101(2)(b) and, therefore, could not grant consent to this development, the provision of vehicular access to the classified road being integral to the intended use of the land: Modern Motels Pty Limited v Fairfield City Council [2013] NSWLEC138.
The applicant invited me to accept that the "slight adverse effect" anticipated by Mr Pindar did not preclude the Court's satisfaction as required by cll 101(2)(b)(i) and (iii) particularly, in circumstances where the Court could be satisfied about the other matters raised by cl 101.
Finding
Although the decision of Modern Motels Pty Limited v Fairfield City Council is a case focused upon cl 101(2)(a), the judgment of the Chief Judge makes clear the fact that the three matters in cl 101(2) are conjunctive and, therefore, I need to be satisfied of each of them before determining to grant development consent (at [20]).
Any one matter in cl 101(2) about which I am not satisfied precludes the issue of consent.
In this case the parties agree that cl 101(2)(a) is not relevant because the classified road is the only road access to the land.
That said, the next relevant consideration is cl 101(2)(b)(i) and, according to the only traffic assessment before me from Mr Pindar, the design of the vehicular access to the land - which requires a reversing movement from the land onto the classified road - will adversely affect the safety, efficiency and ongoing operation of the classified road - albeit "slightly".
Having regard to that evidence I cannot be satisfied as required by cl 101(2)(b) that "...the safety, efficiency and ongoing operation of the classified road will not be aversely affected by the development as a result of:
(i)the design of the vehicular access to the land
Therefore, I agree with the council if I am not satisfied on the evidence then cl 101(2) precludes me from granting development consent to this application.
I cannot accept the applicant's submission that a slight adverse impact does not preclude satisfaction. The clause does not contemplate varying degrees of satisfaction it invites satisfaction or not and a slight adverse impact does not satisfy me in this case as required by cl 101(2)(b).
Other matters
The parties have asked me to make findings in respect of all issues in this appeal to avoid the waste of the two days of evidence and the expense incurred. In response to that request I expressed reservation in doing so and since that time have decided not to do so.
Although there may be some circumstances where it is appropriate for the Court to make findings I do not believe that findings are warranted in this Class 1 appeal. It is not the Court's role to provide guidelines for the future development of this site. Any new application will need to be assessed against the applicable planning controls at the relevant time.
Short of stating the obvious in observing that the use of the site for a boarding house is anticipated by the current planning controls, including ARH SEPP, I choose to say no more about this particular application other than to refuse it for the reasons stated.
Orders
Accordingly, I make the following orders:
(1)The appeal is dismissed.
(2)Development Consent is refused for the construction of a boarding house in accord with development application no: 94/2013 on land known as Lot 5 DP9335 at 232 Sydney Road, Balgowlah.
(3)The exhibits will be returned upon publication of this judgment except for exhibits A, H and 2.
Susan Dixon
Commissioner of the Court
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Amendments
25 Nov 2013 the word 'about' changed to 'that' Paragraphs: coversheet - date amended and paragraph 2
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