Geera Holdings Pty Limited v Ku-ring-gai Council

[2006] NSWLEC 41

Land and Environment Court

of New South Wales

CITATION:	Geera Holdings Pty Limited v Ku-ring-gai Council [2006] NSWLEC 41
PARTIES:	APPLICANT Geera Holdings Pty Limited RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	10321 of 2006
CORAM:	Moore C
KEY ISSUES:	Development Application :- Consent orders Traffic .
DATES OF HEARING:	7 November 2005 and 23 January 2006
EX TEMPORE JUDGMENT DATE:	01/23/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr S Kondilios, solicitor Maddocks RESPONDENT Mr S Patterson, solicitor Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

23 January 2006

10321 of 2005 Geera Holdings Pty Limited v
Ku-ring-gai Council


This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal will be the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

JUDGMENT

1 This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act1979 against the refusal of Development Application 852/03 for the demolition of an existing dwelling and construction of a proposed detached dual occupancy development at 5 Waimea Road, Lindfield (the site).

2 Although, in the original Statement of Issues filed on 18 May 2005, a wide range of matters were identified, the appointment of three Court-appointed experts – a Court-appointed planner; a Court-appointed arborist; and a Court-appointed heritage expert – resulted in amendments to the proposed design to accommodate a range of concerns.

3 The consequence of those amendments was that, on the first occasion the matter was before the Court, it was in the form of proposed consent orders subject to consideration of the views on a number of matters, primarily traffic related matters, expressed by a number of residents.

4 The site was inspected by me in company with the representatives of the parties on 7 November and residents' evidence was taken informally on the site on that occasion.

5 I was not able to deal with the matter by way of a finalised on-site hearing on that day as the provisions of Paragraph 9 of the Consolidated Practice Direction dealing with the requirement to provide objectors with the proposed consent orders and proposed terms of the conditions of consent had not been complied with.

6 As a consequence, I gave a number of directions concerning the provision of that material to the objectors and permitting them to make any further submissions that they wished.

7 During the course of that hearing, I also indicated the strong view that it was desirable to require the applicant to meet the cost of erecting a traffic surveillance mirror on the telegraph pole directly opposite the intersection of Rawhiti Street and Waimea Road.

8 The matter returns today as a consequence of a further inspection and further informal evidence taken from the objectors on site this morning. It returns to Court as I wish to deal with a number of matters arising out of a memorandum prepared by Ms K Hawkin, a development engineer with the council, concerning the proposed vehicular access to the site.

9 As I indicated to the parties during the course of the first inspection, I have a significant familiarity with the area and the problems of what are described colloquially as the Roseville Bends. I have also made it clear during the course of this morning’s hearing (as I did on site) that my role in these proceedings is to deal with the application that is currently before the Court and not, except to the extent that it arises from the application, to endeavour to address the totality of the otherwise manifest and quite significant traffic and other issues in the vicinity.

10 During the course of this morning’s hearing (and in the absence of Ms Hawkin), Mr Kimura, another development engineer with the council, has given formal evidence in these proceedings.

11 He has done so in response to a number of matters raised on-site this morning, the first of which concerned whether or not it would be possible and desirable to have an entry point on the southern portion of the allotment in Rawhiti Street and an exit driveway at the presently proposed entrance and exit driveway location in Waimea Road.

12 It was his evidence, on-site, that it would be desirable and preferable if that were possible although there would be, as he noted on-site, a conflict between such an entrance driveway, which I note is also the present location of the entrance driveway to the property, and the driveways of two garages located immediately to the south and accessing Rawhiti Street.

13 However, his formal evidence, given in Court this morning, has been that, following a consideration of the levels of the site and of the proposed design, it would not be possible without a significant raising of the southern of the two dwellings to have an appropriately graded access to a driveway and parking facility underneath both dwellings. I am satisfied from my examination of the plans and from the nature of the evidence given by the Court appointed planner, Mr Fletcher, that requiring the raising of proposed dwelling 2 by some 2.5 m would be an inappropriate and undesirable planning outcome.

14 It was also Mr Kimura’s evidence that, of the three possible access points to the allotment, whether or not there were two dwellings on it or one, that which is proposed in the present development application is the preferable access point over that which has been the historic access point to a garage in the middle of the allotment facing Rawhiti Street or the more recent and used access to the south at the bend in Rawhiti Street.

15 I am therefore satisfied that there is no practical alternative which would satisfy the relevant provisions of the Australian Standard 2890.1 of 2004.

16 Therefore, whatever driveway is to remain to the property (and that which is proposed is acknowledged by Mr Kimura to be the preferable access point) will require the indulgence permitted by s 3.2.3(a) of the Australian Standard, which permits a non-compliant accessway if there is no practical compliant access point to a development.

17 I raised with Mr Kimura a number of other possible options for improving the safety of the driveway, particularly my view that it would be unsafe for vehicles to turn left when travelling in a northerly direction to access the driveway.

18 As a consequence of his evidence this morning it is, I accept, not appropriate to propose a median strip be constructed to render it impossible for that to occur. However, I accept that what is described as a rumble strip might be appropriately located to act as a disincentive rather than an effective prohibition. I am of the view that a rumble strip of at least two metres in length is appropriate to be put in the centre of the road at that point, and the conditions must so require.

19 I am also satisfied that a bollard to be located at the point where the splay of the driveway crosses the kerb to access the road should be erected so that it will not be possible for vehicles to cut the corner turning left into the driveway. Such bollard should be not more than 900 mm high and not more than 120 mm in diameter. The design, however, for that can be settled between the parties and reflected in a revised condition.

20 I am asked by Mr Patterson, solicitor for the council, to permit a number of these matters to be considered by and be in the discretion of the council’s traffic committee, which is an advisory body reporting to and making recommendations for the adoption or non-adoption of such proposals by the council.

21 I am satisfied that the matters I have dealt with should be required to be effected as part of the development and be at the cost of the applicant – that being accepted by Mr Kondilios, solicitor for the applicant, as an appropriate series of requirements.

22 However, I am prepared to permit the traffic committee to define the precise location for the positioning of the rumble strip and the conditions should be amended to reflect that. In the event that there is any delay in that, it will of course be open to the applicant to return to the Court or to the council for a modification of that condition if necessary.

23 I therefore propose to make the orders that are put to me by consent between the parties that will uphold the appeal and grant development consent for the proposed development at 5 Waimea Road, Lindfield, subject to conditions incorporating the revisions discussed this morning. The orders of the Court, by consent, will be:

1. The appeal is upheld;
2. Development Application 852/03 for the demolition of an existing dwelling and construction of a proposed detached dual occupancy development at 5 Waimea Road, Lindfield is determined by the granting of development consent (subject to conditions which will be Annexure A to the orders when settled by the parties and filed); and
3. The exhibits, other than Exhibit A, are returned.

24 In order to ensure that the Court retains control of the process, I give the following directions:

1. The respondent is to file and serve revised conditions by close of business on 31 January;
2. The matter is to callover before the Registrar on 14 February 2006;
3. Liberty to relist before me at 9am on two days notice of any matters require further consideration arising out of direction 1; and
4. If matters covered by direction 1 require no further consideration, and the documents are filed electronically in accordance with Practice Direction 2 of 2005, I will make orders in Chambers and vacate the callover.

Commissioner of the Court