Fitzsimons v The Hills Shire Council

[2021] NSWLEC 1155

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fitzsimons v The Hills Shire Council [2021] NSWLEC 1155

Hearing dates:

12 March 2021

Date of orders:

30 March 2021

Decision date:

30 March 2021

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Orders of the Court are:

(1) The applicant is granted leave to amend the application to rely on the amended civil engineering plans Revision F.

(2) The appeal is dismissed.

(3) Development Application No.1228/2020/ZA for subdivision to create two Torrens title lots at 16 Bernadette Place, Baulkham Hills, is refused.

(4) The exhibits, other than exhibits 1, A and C, are returned.

Catchwords:

DEVELOPMENT APPLICATION – Torrens title subdivision – battle-axe handle not able to adequately service two battle-axe lots

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 8.7

Land and Environment Court Act 1979 s 34

The Hills Development Control Plan 2012 cll 1.2, 4.1

Texts Cited:

Australian/New Zealand Standard 2890.1:2004, Parking facilities - Part 1: Off-street car parking

The Hills Development Control Plan 2012

The Hills Shire Council, Design Guidelines Subdivision/Developments, (September 2011)

Category:

Principal judgment

Parties:

Ian Fitzsimons (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
A Hudson (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2020/213260

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 1228/2020/ZA for an in-fill subdivision to create two residential lots, including demolition of part of the existing dwelling and ancillary structures (the proposal) at 16 Bernadette Place, Baulkham Hills (the site) by The Hills Shire Council (the Council).

2. The appeal was subject to conciliation on 19 January 2021, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

3. The applicant was granted leave at the commencement of the hearing, and that leave was unopposed, to amend the application to rely on an amended proposal identified as Revision F (Ex C).

Issues

4. The Council contends that the application should be refused because the proposed battle-axe handle is not of sufficient width to adequately service the two battle-axe lots.

5. The remaining contentions in the Statement of Facts and Contentions (Ex 1) were resolved to the Council’s satisfaction by the amendments made to the proposal (Ex C).

The site and its context

6. The site is a battle-axe lot and irregular in shape, with an access handle with a 4.24m frontage to Bernadette Place. The site has an area of 1,726sqm. The site falls to the north and to Bernadette Place.

7. There is a dwelling on the site with a swimming pool.

8. The site is to the rear of 14 Bernadette Place and the access handle is located between 14 and 18 Bernadette Place.

9. There is a public reserve containing a cycleway and natural watercourse adjoining the site to the north. There is a primary school adjoining the site to the south-east.

10. The locality is predominately low-density residential in character.

The proposal

11. The proposal is to subdivide the site into two Torrens title lots. Lot 1 is 766.43sqm and Lot 2 is 959.83sqm including their access handles. The existing dwelling is located on Lot 1. The existing swimming pool is to be demolished. Lot 2 includes an indicative building location.

12. The proposal retains the existing driveway along the access handle and the existing driveway is 2.85-2.94m wide (Ex 4, par 16). The traffic experts agreed that the driveway is 42.9m in length until the first opportunity for two vehicles to pass each adjacent to Lot 1, where the proposal includes a vehicle passing bay.

Planning framework

13. The site is zoned R2 Low Density Residential pursuant to The Hills Local Environmental Plan 2019 (LEP 2019). The objectives of the R2 zone, to which regard must be had, are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To maintain the existing low density residential character of the area.

14. One of the aims of LEP 2019 is to provide for the development of communities that are liveable, vibrant and safe… at cl 1.2(2)(c).

15. The minimum subdivision lot size development standard for the site is 700sqm (cl 4.1 and Lot Size Map - Sheet LSZ_016 of LEP 2019).

16. The Hills Development Control Plan 2012 (DCP 2012) applies to the site at Part A section 1.2. Part B Section 2 applies to the site at 1.1. Part C Section 1 applies to the site at 1.1.

17. The development control for the minimum width for battle-axe handle on battle-axe shaped allotment, at Part B Section 2 at 2.13.1(g) of DCP 2012 on subdivision, is 6m for two or more allotments. The relevant objective is (ii), “to ensure allotments have sufficient area to provide adequate access…”.

18. The development control for building platform and views under subdivision, at Part B Section 2 at 2.13.2(b) of DCP 2012, is, “practical and suitable access shall be provided from a public road to the building platform”. The relevant objective is (iii), “to ensure the bulk and scale of new development protects reasonable neighbour amenity…”.

19. The objectives for access driveways, at Part C Section 1 at 2.10 of DCP 2012, include at (i), “to provide driveways with safe access and egress to and from properties” and (ii) “to reduce conflicts between entering and existing street traffic and car park traffic”.

20. The Hills Shire Council Design Guidelines Subdivision/Developments includes at Section 5.4 Battle-axe Handles, a table which for residential development for two or more allotments has a 6m wide access handle with construction of a 5m wide medium duty driveway.

21. The Australian Standard 2890.1:2004 for “Parking facilities Part 1 Off-street car parking” includes, at Section 3.2.2, in relation to access driveway widths, “on long driveways, passing opportunities should be provided at least every 30m” and “reversing movements to public roads shall be prohibited wherever possible”.

Expert evidence

22. The applicant relied on the expert evidence of Paul Corbett (traffic) and the Council relied on the expert evidence of Zoran Bakovic (traffic). The traffic experts prepared a joint report (Ex 4).

Consideration

23. The access handle is 4.24m wide. The proposal retains the existing driveway along the access handle and the driveway is 2.85-2.94m wide and 42.9m long until there is an opportunity for two cars to pass each other.

24. The question raised by the proposal to subdivide the existing battle-axe lot into two Torrens title lots is how many times over a given period will be there be a conflict between cars coming to and from the two households on or near the long stretch of narrow driveway between Bernadette Place and the passing bay adjacent to proposed Lot 1. The traffic experts had wildly different opinions on this question. According to Mr Corbett, two cars will meet on the driveway during weekdays’ peak periods once every 20 years. According to Mr Bakovic, two cars will meet on the driveway during weekdays’ peak periods 174 times per year.

25. The experts agreed that the proposal to create an additional lot will generate, on average, two vehicle trips during the weekday morning and evening peak periods. They agreed that the in/out spill of residential traffic is typically regarded as being 80% outbound and 20% inbound during the morning peak, and the opposite during the evening peak. Accordingly, the proposal will generate 0.4 inbound trips and 1.6 outbound trips on the driveway during the morning peak, and the opposite during the evening peak. Mr Corbett’s input data uses the 1.6 vehicle arrivals per hour as a basis for his calculation (Ex 4, Annexure E). Using data based on one household does not address the key issue raised by the proposal, which is the conflict on the driveway between cars coming to and from two households.

26. I am not satisfied that the variables and assumptions relied upon by either traffic expert are sufficiently applicable to this circumstance to be able to accurately predict the inevitable conflict of cars on the driveway. There was a reference made during the hearing to the fact that the existing household on the site has 2 to 3 cars, so there could be between 4 and 6 cars using the shared section of driveway.

27. I am not convinced by Mr Corbett’s evidence that the drivers of two households, sharing a single lane driveway for a distance of 42m, are only going to meet on that driveway once every 20 years. The calculations for peak times do not adequately predict the actual conflict between cars coming to and from the two households on or near the long stretch of narrow driveway between Bernadette Place and the passing bay adjacent to proposed Lot 1. On the basis of all of the evidence before me, I am not satisfied that there will not be a significant conflict on the driveway between cars coming and going from the two households.

28. I accept Mr Corbett’s evidence that the likelihood this issue will lead to a vehicular crash is improbable because cars would be moving slowly, the sight lines are adequate and there is a low traffic volume in Bernadette Place.

29. The width of the existing driveway and the access handle and the considerable length of the single lane driveway means that the proposal is unable to provide adequate access to two battle-axe lots.

Conclusion

30. The proposal does not achieve the 6m minimum width for battle-axe handle on battle-axe shaped allotments for two or more allotments, under the development control at Part B Section 2 at 2.13(g) of DCP 2012. The proposal is inconsistent with objective (ii) for subdivisions at Part B Section 2 at 2.13.1 of DCP 2012 to ensure allotments have sufficient area to provide adequate access. The proposal does not provide practical and suitable access from a public road to both the existing dwelling and the proposed building platform.

Orders

31. The orders of the Court are:

1. The applicant is granted leave to amend the application to rely on the amended civil engineering plans Revision F.

2. The appeal is dismissed.

3. Development Application No.1228/2020/ZA for subdivision to create two Torrens title lots at 16 Bernadette Place, Baulkham Hills, is refused.

4. The exhibits, other than exhibits 1, A and C, are returned.

____________

Susan O’Neill

Commissioner of the Court

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Decision last updated: 30 March 2021