Elias v Blacktown City Council

Case •

[2022] NSWLEC 1224

•

02 May 2022

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Elias v Blacktown City Council [2022] NSWLEC 1224
Hearing dates: 28 March 2022
Date of orders: 02 May 2022
Decision date: 02 May 2022
Jurisdiction:Class 1
Before: Bradbury AC
Decision: The Court orders that:
1. The appeal is dismissed.
2. Modification Application MOD-21-00162 which seeks consent to modify Development Consent DA-20-01245 by reducing the width of the proposed battle-axe access handle is determined by way of refusal.
3. All exhibits are to be returned with the exception of Exhibits 2, A and B, which are retained.
Catchwords:

MODIFICATION APPLICATION – residential development – modification to reduce width of battle-axe access handle – whether development substantially the same – whether proposed driveway width adequate

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Cases Cited:

Arrage v Inner West Council [2019] NSWLEC 85

Feldkirchen Pty Ltd v Development Implementation Pty Ltd [2021] NSWLEC 116

Kelly v Randwick City Council [2021] NSWLEC 68

Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333

Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167

Texts Cited:

Austroads Guide to Traffic Management

Blacktown Development Control Plan 2015

Joint Technical Committee CE-001, AS/NZS 2890.1 – Parking Facilities (March, 2004)

Category:Principal judgment
Parties: Elias Elias (Applicant)
Blacktown City Council (Respondent)
Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2021/226778
Publication restriction: Nil

Judgment

The Applicant seeks approval to modify a development consent

  1. COMMISSIONER: The Applicant appeals from the Council’s deemed refusal of an application to modify development consent No. DA-20-01245 granted by the Council on 14 January 2021 (Consent) in relation to the land described as Lot 346 DP 7875 and known as 49 Turner St, Blacktown (the Site).

  2. The development the subject of the Consent involves the staged Torrens Title subdivision of the Site, alterations to the existing dwelling on the proposed front lot, the construction of a two-storey attached dual occupancy on the rear “battle-axe” lot and the strata title subdivision of the dual occupancy into two strata lots.

  3. The modification application the subject of this appeal (MOD-21-00162) (Modification Application) was made to the Council on 16 April 2021. When the Application had not been determined by the Council within the period after which it was taken to have been refused, on 9 August 2021 the Applicant appealed to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act).

The modifications sought by the Applicant

  1. The Modification Application seeks approval to modify the Consent by reducing the width of the access handle to the proposed dual occupancy to be erected at the rear of the Site from 4.7 m to 3.5 m.

  2. When originally lodged with the Council, the Modification Application also sought approval for the modification of the Consent to remove the requirement for both proposed dual occupancy dwellings to be dedicated as affordable housing. However, prior to the hearing of the appeal, a separate modification application had been made to, and approved by, the Council which removed this requirement and instead allowed for either one of the proposed dual occupancy units to be dedicated as affordable housing for 10 years. Accordingly, this component of the Modification Application as originally made does not require consideration in this appeal.

  3. At the commencement of the hearing, the Applicant indicated that it was prepared to increase the width of the driveway from 3.5 m to 3.6 m and would accept a condition to this effect if the Modification Application were to be approved. An amended plan reflecting this change became Ex B in the appeal.

  4. To give effect to the modifications proposed by the Applicant, the Modification Application seeks to modify the following conditions:

  1. Condition 2.1.2 to refer to the proposed new subdivision plans; and

  2. Conditions 3.2.1 and 7.5.1 to refer to the proposed new specifications for the driveway.

  1. The Modification Application also seeks to delete the following conditions which the Council will become otiose if the driveway width is reduced as proposed:

  1. Conditions 3.4.1, 3.4.2 and 3.4.3 which are as follows:

“3.4.1 A Building Construction Certificate is to be issued for the alterations of the existing dwelling to be retained, modifying the western wall of the dwelling to a blank solid wall to be situated outside the 4.7 metre wide proposed access handle in the subdivision of land.

3.4.2 A final Survey of the western wall of the existing dwelling confirming it has been positioned a minimum of 4.7 metres from the existing property boundary is to be submitted to Council.

3.4.3 A Final Occupation Certificate or Compliance Certificate is to be issued for the existing dwelling confirming that the new western wall is fire rated and compliance with Building Code of Australia requirements.”

  1. Condition 5.5.1 which is as follows:

“5.5.1 The following plan amendments shall be included on or addressed by any Construction Certificate relating to the approved development:

a) The plans are to demonstrate a suitable fire solution along the entirety of the western wall of the existing dwelling and laundry on Lot A that appropriately fire rates the wall to Building Code of Australia requirements.”

  1. Condition 12.10.3.1 which is as follows:

“12.10.3.1 All road stormwater drainage structures (pipelines and pits) must be inspected via CCTV after completion of road pavement construction works (excluding any deferred AC works) and the provision of all public utility services in accordance with Council’s current Works Specification Civil. CCTV reports must be submitted to council in the form of video footage of the inspections, a SEWRAT (or equivalent) report, and a certified CCTV statement in accordance with section 6.8 of Council’s Works Specification Civil indicating that any defects identified by this inspection have been rectified.”

The Site

  1. The Site is rectangular and is 18.29 m wide and 60.52 m deep. It has an area of 1106.9 m2 and falls from the north to the south by approximately 3 m. The Site is currently occupied by a single dwelling house and carport. The properties on either side of the Site each have a dwelling house fronting Turner St at the front and a dwelling house at the rear accessed by a battle-axe handle. An aerial photograph of the Site and neighbouring properties is at figure 1:

Figure 1: the Site and surrounding area

Jurisdictional prerequisites

  1. The Modification Application indicates that the type of modification proposed is a modification in accordance with s 4.55(2) of the EPA Act. That sub-section is as follows:

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b)  it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c)  it has notified the application in accordance with—

(i)  the regulations, if the regulations so require, or

(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d)  it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

  1. The Council contends that the development as proposed to be modified is not substantially the same development as the development for which consent was originally granted and, accordingly, that the Court does not have jurisdiction to approve the modification. I will deal with that contention in some detail below.

  2. In relation to the other jurisdictional pre-conditions contained in s 4.55(2):

  1. The Modification Application does not propose the modification of a condition imposed as a requirement of a concurrence to the Consent or in accordance with the general terms of an approval proposed to be granted by the approval body. Section 4.55(2)(b) therefore does not apply.

  2. The Council’s Statement of Facts and Contentions (Ex 1) indicates that the Modification Application was not publicly notified by the Council but that the original development application was notified for a 14 day period between 8 September 2020 and 22 September 2020. No submissions were received. Section 4.55(2)(c) therefore does not apply and there are no submissions to take into consideration in accordance with s 4.55(2)(d).

Substantially the same development

  1. As noted above at par [11], the Council contends that the Modification Application must be refused because the development as proposed to be modified is not substantially the same development as the development for which the Consent was originally granted. The Council says that when compared to the development for which consent was originally granted, the development as proposed to be modified would result in the following quantitative changes:

  1. The width of the access handle to the dual occupancy dwellings would be reduced from 4.7 metres to 3.5 metres (being a reduction of 25.5%);

  2. The width of the concrete driveway within the access handle would be reduced from 3.5 metres to 2.5 metres (being a reduction of 28.6%);

  3. The reduction or deletion of landscaping within the area of the access handle;

  4. The dwelling on the front lot is no longer proposed to be altered to accommodate the access handle;

  5. There will be a reduction in the area of proposed Lot B by approximately 40 m2 and an increase in the area of proposed Lot A by a similar amount.

  1. The Council also says that the Modification Application would result in a qualitative change to the approved development being that it would no longer be physically possible for two vehicles to pass within the access handle.

  2. The Council submits that, taken together, material and essential features of the Proposed Development will change in such a way that the development as proposed to be modified will no longer be substantially the same development as that originally approved.

  3. The Applicant argues that the development the subject of the Consent comprises the subdivision of the Site into two lots, the construction of a two-storey attached dual occupancy on the proposed rear lot and the strata subdivision of the dual occupancy development. The development the subject of the Consent will, the Applicant submits, be substantially the same development as the development for which consent was originally granted even if the width of the driveway is reduced as proposed and the other changes proposed by the Modification Application are made.

  4. Section 4.55(2) of the EPA Act requires the Court to form the positive opinion of satisfaction that the development as proposed to be modified is substantially the same development as the development for which consent was originally granted. In Arrage v Inner West Council [2019] NSWLEC 85 (‘Arrage’) (at [27] to [28]) Preston CJ observed that in most cases the most instructive (but not the only) way to identify whether the modified development is substantially the same as the originally approved development is to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required.

  5. I have set out at par [13] above the features of the development the Council relies on to establish that, in a quantitative sense, the development as proposed to be modified will not be substantially the same as the development originally approved. As noted above at par [14], the Council also relies on a qualitative change, being that it says it would no longer be physically possible for two vehicles to pass within the access handle.

  6. In my view, however, the Council has focussed on one element of the Proposed Development rather than on a comparison of all the essential elements of the development as proposed to be modified and the development as originally approved: see Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [16]; Arrage at [24]. I find that the essential elements of the approved development are:

  1. The subdivision of the Site into two Torrens Title lots;

  2. The construction of a two-storey attached dual occupancy on the rear lot;

  3. A battle-axe access handle providing access to the rear lot;

  4. The strata subdivision of the dual occupancy development on the rear lot.

  1. These essential elements will remain if the Modification Application is approved. The reduction in the width of the driveway, and the other quantitative changes relied on by the Council, do not, in my view, result in the modified development not being substantially the same as the development for which consent was originally granted. As for the qualitative change relied on by the Council, while the parties’ experts agreed that the reduced width of the driveway proposed by the Modification Application will not be sufficient for two vehicles to pass, there was a dispute between the experts as to whether the width of the driveway as currently approved by the Consent is itself sufficient to enable two vehicles to pass. I deal with the resolution of that dispute later in this judgment. For now, it suffices to say that, in my opinion, even if I accept the Council’s position, this change to one aspect of the approved development does not mean that the development as a whole (as proposed to be modified) does not remain substantially the same as the development for which consent was originally granted. Accordingly, I find that the Court does have jurisdiction to determine the Modification Application.

Relevant merit considerations

  1. Section 4.55(3) of the EPA Act provides that, in determining an application for the modification of a consent, the consent authority must take into consideration:

  1. Such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the application; and

  2. The reasons given by the consent authority for the grant of the consent that is sought to be modified.

The reasons for the grant of consent

  1. The Council originally contended that the Modification Application should be refused because the development, as proposed to be modified, would be inconsistent with the reasons for the grant of the development consent. However, at the hearing of the appeal, the Council conceded that as the Consent did not set out a statement of reasons for the grant of consent, the recent decision of Robson J in Feldkirchen Pty Ltd v Development Implementation Pty Ltd [2021] NSWLEC 116 meant that this contention could not succeed. In that case, his Honour held (at [70] to [71]) that the reference in s. 4.55(3) to “the reasons given by the consent authority” restricts the consent authority’s obligation to consider reasons to those objectively identifiable reasons that are specifically produced by the consent authority when granting the original consent, rather than the background circumstances when the consent was granted. In the light of this decision, the Council did not press this contention and I agree that, as the Council did not give any specific reasons for the grant of the Consent, this aspect of s 4.55(3) does not apply in the circumstances of this appeal.

Section 4.15(1) - Is the reduction in driveway width acceptable?

  1. The Council also contends that the Modification Application should be refused because the width of the access handle as proposed to be modified is inadequate and will not facilitate the passing of vehicles or the provision of a landscape buffer.

  2. In this regard the Council relies on clause 4.3.10 of the Blacktown Development Control Plan 2015 (DCP). This clause applies to dual occupancy and secondary dwelling development and is as follows:

“4.3.10 Vehicular access

Access to each dwelling shall generally be by way of individual driveways, though Council may approve a shared driveway, of minimum width 5m, with reciprocal rights-of-way depending upon the nature of the development proposed. Where individual access is to be provided to each dwelling, a width of 3.5m will be required.”

  1. The Council contends that a 5 m access handle provides for two vehicles to pass and also provides an opportunity for a landscape buffer to properties adjoining the handle. It says that the proposed 3.5 m driveway proposed by the Applicant is insufficient to enable two cars to pass each other and should not be approved.

Some background to the dispute between the parties

  1. The width of the driveway has been a significant issue for the Council. In this regard, it is relevant to set out some of the history of applications for the Site and the Council’s responses:

  • On 9 September 2019, the Council granted development consent (DA-19-00372) for a Torrens Title subdivision of the Site into two residential lots, with the retention of the existing dwelling and structures on the front lot (Ex 2, Tabs 1 and 2). This application proposed a driveway width of 3.5 m, which complied with the DCP access requirement for a single dwelling. The development consent contained the following condition:

“7.10.2 The access provided by the battleaxe handle is approved for usage by single dwelling development of Lot B. Any further development of Lot B will require reassessment of access arrangements…”

  • This development consent was surrendered on 21 July 2021 (Ex 2, Tab 3).

  • The development application which resulted in the granting of the Consent (DA-20-01245) initially proposed a driveway 3.5 m in width (Ex 2, Tab 4). The development proposed by that development application involved the construction of a dual occupancy rather than a single dwelling on the rear lot. The proposed driveway width did not comply with clause 4.3.10 of the DCP and this was not acceptable to the Council.

  • The location of the existing dwelling house means that it is not physically possible to provide a 5.0 m wide driveway, as required by clause 4.3.10 of the DCP. However, negotiations between the Applicant and the Council ultimately resulted in the Council indicating that it would accept a driveway width of 4.7 m (instead of the 5.0 m required by the DCP). This was conveyed to the Applicant in an email from Judith Portelli, the Manager Development Assessment of the Council, by email dated 8 October 2020 (Ex 2, p 58). In that email Ms Portelli wrote:

“…I can confirm that the current proposal as submitted cannot be supported but as discussed as per our phone conversation, the following alternative is offered:

1. The access handle is to be increased by 1.2 m in width, resulting in a total width of 4.7m and so closer to the 5m requirement and ample space to enable 2 cars to pass each other from the rear dual occupancy

2. This will result in a zero lot line for the existing dwelling and so an easement for access and maintenance burdening the rear lot handle in favour of the front lot will be required to enable the wall of the existing house to be maintained.

3. The wall of the existing dwelling running parallel to the access handle will also have to be fire rated with no openings you need to talk to a building consultant about this.”

  • The Applicant amended the development application to reflect the 4.7 m wide driveway proposed by the Council and this was ultimately granted development consent (Ex 2, p 79 and Tab 11).

Expert evidence on the adequacy of the driveway

  1. Mr Thomas Steal (engaged by the Council) and Mr Robert Varga (engaged by the applicant), traffic experts, conferred and prepared a joint report (Ex 3).

  2. The traffic experts agree that:

  1. The proposed driveway width of 3.5 m does not comply with the relevant DCP control, which requires a width of 5.0 m for shared access to dual occupancies and secondary dwellings;

  2. The proposed driveway width of 3.5 m does not facilitate the passing of vehicles either at the driveway entry or along the 34.1 m straight length;

  3. The currently approved width of 4.7 m represents a 0.2 m or 6% departure from the required 5.0 m width while the proposal the subject of the Modification Application represents a 1.5 m or 30% departure.

  1. The traffic experts disagreed on whether the objective of clause 4.3.10 of the DCP and the requirement for a 5 m wide shared driveway was to enable two vehicles to pass. They also did not agree on whether the currently approved 4.7 m access driveway was sufficient to enable two vehicles to pass or whether the proposed 3.5 m driveway met the relevant sight distances at the point of exit.

The Applicant’s expert evidence

  1. The Applicant’s expert, Mr Varga, gave evidence that the currently approved driveway does not allow for two vehicles to pass each other and that, in his opinion, “… it is clear that two vehicles passing in opposite directions at the same time was not contemplated by Council when it approved the 4.7 m wide access handle” (Ex 3, par 3.1.2.2). His evidence is that the low traffic volumes using the driveway mean that the provision of a two-lane driveway or a waiting bay at the site entry is not required by either Austroads Guide to Traffic Management (Austroads) or AS/NZS 2890.1:2004 – Parking Facilities (AS/NZS 2809.1).

  2. In oral evidence Mr Varga, the Applicant’s traffic expert, did not accept that the objective of clause 4.3.10 of the DCP was to enable cars to pass within the driveway. In his opinion, the objective of the clause was what he described as a “greater land take” adding that he thought it was an unusual provision and that he didn’t “see the point of it”. Mr Varga also gave evidence that, in his opinion, it would not be possible for two vehicles to pass in the currently approved 4.7 m wide access handle. In this regard his evidence (Ex 3, par 3.1.2.3) is that:

  1. The width of a B85 vehicle is 2.1 m, including side mirrors;

  2. Thus, the clearance between two B85 vehicles passing on a 4.7 m driveway between a wall and a fence is only 166 mm;

  3. It is “highly unlikely” that two B85 drivers travelling in opposite directions could achieve the required 166 mm clearances (less than the width of an A4 page) on both sides of the vehicle;

  4. AS/NZS 2890.1 requires a clearance of 300 mm on both sides of slow moving vehicles and this is “clearly unachievable” in the currently approved 4.7 m driveway;

  5. Larger vehicles such as SUV’s and 4WD’s are likely to have clearances of even less than 166 mm, if not eliminated altogether, and thus the proposition that two vehicles will be able to pass each other in a 4.7 m wide driveway “is clearly unreasonable and untenable”.

  1. Mr Varga’s evidence is that where traffic flow at a site entrance is restricted to a single lane (effectively a control point), AS/NZS 2890.1 requires the 98th percentile queue to be accommodated onsite. That is, no waiting bay is required where the probability of a vehicle waiting (i.e. more than one vehicle being present) is less than 2%. Mr Varga has calculated that the probability of more than one vehicle being present on this driveway is 0.02%, well below the 2% threshold required by AS/NZS 2890.1, and concludes that an on-site waiting bay is therefore not required.

  2. Mr Varga also gave evidence that the probability of two vehicles travelling in opposite directions within the driveway at the same time, calculated in accordance with Austroads formulae, is also very low (0.0045%) (Ex 3, par 3.1.2.6 and Annexure G).

  3. Mr Varga says it is therefore clear that the provision of a two-lane driveway (or a waiting bay at the site entry) is not required by either Austroads or AS/NZS 2890.1.

The respondent’s expert evidence

  1. The Council says that the objective of the 5 m access handle in clause 4.3.10 of the DCP is to provide for two vehicles to pass and also to provide the opportunity for a landscape buffer to properties adjoining the access handle: (Ex 1, p 14). In the Joint Expert Report, the Council’s traffic expert, Mr Steal, gave evidence (Ex 3, par 3.1.6) that the 5.0 m access width required by clause 4.3.10 of the DCP “is intended to achieve multiple desirable outcomes including but not limited to:

  1. Providing for two-way passing for passenger vehicles of all sizes at low speeds;

  2. Providing the opportunity for a low-level landscaped buffer which does not inhibit two-way passing opportunities;

  3. Increasing the width of the driveway at the boundary to provide for improved sight lines between pedestrians on the footpath and vehicles exiting the site, compared to a single-width driveway opening.”

  1. Mr Steal gave evidence (Ex 3, par 3.2.3.1) that the provision of two-way passing along the proposed driveway is required not only by the DCP but also by clause 3.2.2 of AS/NZS 2890.1. That clause is as follows:

  1. Mr Steal’s evidence (Ex 3, par 3.2.3.2) is that this clause requires the provision of passing facilities for Category 1 access driveways where the driveway is 30 m or longer.

  2. In this case, Mr Steal says the proposed driveway is 34.1 m in length thus requiring the provision of passing facilities (Ex 3, par 3.2.3.3). He also observes that an entering vehicle will not be able to observe the entire length of the driveway until after turning into the driveway (although Mr Varga’s evidence is that this can be remedied by the provision of a convex mirror at the entrance to the Site (Ex 3, par 3.2.2.7)).

  3. Mr Steal explains in his evidence (Ex 3, par 3.2.3.9) that the 99th percentile vehicle (B99) represents a vehicle that is larger than all but 1% of the passenger vehicle fleet. Similarly, a B85 vehicle is a vehicle that is larger than all but 15% of the passenger fleet and a B50 “light car” represents the median vehicle with a 4.45 m length and 1.7 m width (Ex 3, pars 3.2.3.10 and 3.2.3.11).

  4. Mr Steal’s evidence is that under AS/NZS 2890.1, 300 mm clearance should be provided on both sides of vehicles when undertaking swept path testing as this provides for a range of driver skill levels and provides a “forgiving” design. Using the vehicle dimensions in AS/NZS 2890.1 and allowing 300 mm clearance, Mr Steal’s evidence is that the minimum width for two vehicles to pass each other at slow speeds is set out in the following table (Ex 3, par 3.2.3.13):

  1. The total clearance width of 0.9 m allows clearance of 300 mm on either side and also between passing vehicles (Ex 3, par 3.2.2.14).

  2. Mr Steal’s evidence is that all combinations of vehicles would be able to pass on a 5.0 m driveway which is the width prescribed by the DCP. For a 4.7 m driveway, Mr Steal’s evidence is that only the combinations of large vehicles (B99/B85) would be unable to pass with 300 mm clearances maintained and that a reduction in clearances by 8 cm from 900 cm to 892 cm would be required to achieve the passing of two B99 vehicles, a reduction which he says is inconsequential and would not inhibit the ability of vehicles to physically pass each other on a 4.7 m wide easement at slow speeds (Ex 3, pars 3.2.3.15 to 3.2.3.17).

  3. Mr Steal also says that the passing of vehicles can be facilitated by folding in the side mirrors and that passing vehicles could also use the landscaped strips on either side of the driveway pavement, which he notes are to comprise decorative gravel with a low level planting of decorative grasses (Ex 3, par 3.2.3.25).

  4. Mr Steal concludes his evidence on this point as follows (Ex 3, par 3.2.3.18):

“Whilst my preference would be that a 6.1m width be provided where two-way passing of vehicles between high obstructions is required, passing could physically occur using a 5.0m width or a 4.7m width and this is intended under the DCP for low-volume access driveways. Further, it is my expectation that were a 4.7m wide driveway provided, drivers would utilise it to achieve two-way passing, particularly given that they would be familiar and regular users of it.”

  1. In cross-examination, Mr Steal would not agree that it would be impractical for two vehicles to pass on a 4.7 m driveway without causing damage to the vehicles or buildings adjoining the driveway and insisted that passing would be “practical at low speeds”.

  2. Mr Steal says that, while he acknowledges that there is a low probability of two vehicles travelling in opposite directions along the driveway at the same time, “when the design life of the development is considered it is inevitable that it will occur” (Ex 3, par 3.2.3.26).

  3. Mr Steal’s evidence (Ex 3, par 3.1.3.1) is that the proposed reduction in the width of the driveway will result in several undesirable outcomes including:

  1. Drivers being forced to reverse out of the driveway into the travel lanes of Turner St to allow an exiting vehicle to pass. His evidence is that this could result in a collision with a vehicle travelling on Turner St or a collision with a pedestrian walking along the footpath. He says the chance of a collision with a pedestrian is compounded given the reduced sight distances available at the driveway entry resulting from the reduced driveway width.

  2. Drivers being forced to make long reversing manoeuvres internally to provide for passing. Long reversing manoeuvres, he says, require a level of driver skill and may result in vehicle damage or damage to structures. This, in his view, is an unreasonable burden on the future residents of the proposed development.

  3. The reduced sightlines available at the driveway opening will, on Mr Steal’s evidence, reduce the mutual sightlines available and increase the risk of a collision between a vehicle exiting the site with a pedestrian walking along the footpath compared to the approved design.

Mr Varga’s response

  1. In relation to clause 3.2.2 of AS/NZS 2890.1, Mr Varga’s evidence is that the element of non-compliance with the nominated 30m length “is very minor, in the order of only 4.1 m. In practical terms this minor non-compliance will have no effect on the day-to-day use of the proposed driveway.”

  2. Mr Varga disputes the outcomes forecast by Mr Steal at par 46. He says that the long reversing manoeuvres referred to by Mr Steal are unlikely to ever occur in practice given the low probability of two vehicles travelling in opposite directions within the driveway at the same time. In respect of the visibility splays, Mr Varga points out that the currently approved design itself does not make provision for such splays and that the proposed 3.5 m wide driveway will have the same driver sightlines as the currently approved development. He also gave evidence that the sightlines could be improved by providing a low-height fence on the common boundary with 49 Turner St and installing a convex mirror on the common boundary with 49 Turner St to provide visibility across the frontage of 47B Turner St. Mr Varga also suggested that a discrete travel signal system with two small lamps could be installed in the same position as the mirror which would display a green signal to entering traffic except when activated by an exiting vehicle.

Findings

  1. In my assessment, the clear purpose of clause 4.3.10 of the DCP is to provide for a driveway capable of accommodating two vehicles travelling in opposite directions. The clause generally requires a separate 3.5 m wide driveway to each dual-occupancy or secondary dwelling but contemplates the approval of a shared driveway of 5 m minimum width in appropriate circumstances. I accept Mr Steal’s evidence that the additional width required by clause 4.3.10 for a shared driveway was intended to provide for the passing of vehicles travelling on the driveway in different directions.

  2. I reject Mr Varga’s evidence that two vehicles passing in opposite directions at the same time was not contemplated by the Council when it approved the 4.7 m wide access handle. The email from Judith Portelli to the applicant on 8 October 2020 expressly stated that, in her view, allowing the 4.7 m wide driveway rather than the 5.0 m required by the DCP would still provide “ample space to enable 2 cars to pass each other from the rear dual occupancy” (Ex 2, p 58).

  3. I accept Mr Varga’s evidence that the probability of two vehicles travelling in opposite directions on the driveway at the same time is low. However, as Mr Steal pointed out, it is inevitable that this will occur during the life of the proposed development and when it does, the proposed reduction in the width of the driveway would inevitably require vehicles to reverse onto Turner St, an outcome clause 3.2.2 of AS/NZS 2890.1 says should be “prohibited wherever possible”. It may also require lengthy reversing manoeuvres, as explained by Mr Steal, which would also be unsatisfactory.

  4. As to the ability of two vehicles to pass on the approved 4.7 m wide driveway, I prefer Mr Steal’s evidence that most types of vehicles would be able to pass safely at low speeds. The difficulty larger vehicles will experience in passing one another does not detract from the benefit of having a wider driveway for all other drivers.

  5. Section 4.55(3) of the EPA Act requires the Court, in the determination of the Modification Application, to take into consideration such of the matters set out in s 4.15 of the EPA Act as are of relevance to the development the subject of the application. Section 4.15(1)(a)(iii) of the EPA Act requires the Court to take into consideration any development control plan of relevance to the development.

  6. It is well established that the relevant provisions of a development control plan need to be taken into consideration as a “fundamental element” in or a “focal point” of the decision-making process: Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001); [2001] NSWCA 167 (‘Zhang’) (at [75], [77]). A provision of a development control plan directly pertinent to a development application is entitled to significant weight in the decision-making process but it is not in itself determinative: Zhang at [75].

  7. Section 4.15(3A)(b) of the EPA Act is also relevant. That section provides that:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—

(b)  if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development

  1. Clause 4.3.10 of the DCP deals with access to dual occupancies and is therefore directly relevant to the development the subject of the Modification Application. That clause provides that each dwelling should “generally” have access by way of an individual driveway with a minimum width of 3.5 m. The clause recognises, however, that a shared driveway of a minimum width of 5 m may also be appropriate in some circumstances.

  2. Clause 4.3.10 must be applied flexibly and the Court must allow reasonable alternative solutions that achieve the objects of the clause. However, as Moore J said in Kelly v Randwick City Council [2021] NSWLEC 68 (at [156], [157]), that flexibility does not provide a basis to permit what would be the complete setting aside or abandonment of the standard.

  3. The access driveway proposed by the Applicant does not comply with the standards set out in clause 4.3.10 of the DCP. The 3.5 m wide driveway proposed meets the standard set for access to an individual dwelling but not that for a dual occupancy. The Applicant does not propose individual access to each unit in the dual occupancy nor does it propose shared access of the width suggested by the clause. Instead, it proposes a single access of 3.5 m in width.

  4. There is no dispute that cars travelling in opposite directions cannot pass one another within a 3.5 m wide driveway. Increasing the width of the driveway to 3.6 m, as proposed by the Applicant at the hearing of the appeal, would not change this. The Council applied the provisions of clause 4.3.10 flexibly when, in granting consent to the approved development, it agreed to reduce the required width of the shared driveway from 5.0 m to 4.7 m. To approve the modification proposed by the Applicant would, in my view, involve the complete setting aside or abandonment of the standard for a shared driveway.

Conclusion

  1. I am satisfied that the preconditions at s 4.55(2) of the EPA Act are met and that the Court, as consent authority, has power to grant consent to the Modification Application. However, I find that, on merit, the exercise of that power is not warranted as reducing the width of the driveway as proposed by the Modification Application will completely remove the ability of vehicles to pass one another in opposite directions and will inevitably result in vehicles having to reverse onto Turner St. This may require lengthy and difficult reversing manoeuvres at some times. While large vehicles may have difficulty passing each other on the currently approved driveway, I find that the majority of vehicles will be able to safely pass one another and would benefit from the continued provision of the currently approved wider 4.7 m driveway.

  2. Given the adverse impacts of the proposed modification, I find that the Modification Application should be refused.

Orders of the Court

  1. The orders of the Court are:

  1. The appeal is dismissed.

  2. Modification Application MOD-21-00162 which seeks consent to modify Development Consent DA-20-01245 for the subdivision of Lot 346 DP 7875 known as 49 Turner St Blacktown and the erection of a two-storey attached dual occupancy by reducing the width of the proposed battle-axe access handle is determined by way of refusal.

  3. All exhibits are to be returned with the exception of Exhibits 1, A and B, which are retained.

…………………………

A Bradbury

Acting Commissioner of the Court

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Decision last updated: 02 May 2022

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Arrage v Inner West Council [2019] NSWLEC 85
Feldkirchen Pty Ltd v Development Implementation Pty Ltd [2021] NSWLEC 116
Kelly v Randwick City Council; Drake v Randwick City Council [2021] NSWLEC 68