Goldberg v Waverley Council

[2010] NSWLEC 1044

Land and Environment Court

of New South Wales

CITATION:	Goldberg v Waverley Council [2010] NSWLEC 1044
PARTIES:	APPLICANT Robyn Lee Goldberg RESPONDENT Waverley Council
FILE NUMBER(S):	10465 of 2009
CORAM:	Pearson C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Dwelling house Road works approval
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Roads Act 1993 Environmental Planning and Assessment Regulation 2000 Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006 (Amendment No 4) Draft Waverley Local Environmental Plan 1996 (Amendment No 33)
CASES CITED:	Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226 Building Recyclers Investments Pty Ltd v Marrickville Council (2003) 131 LGERA 413 Goldberg v Waverley Council (2007) 156 LGERA 27 Goldberg v Waverley Council [2008] NSWLEC 49 Maxnox Pty Ltd v Hurstville City Council (2006) 145 LGERA 373 Mirvac Projects (No 2) Pty Ltd v Concord Municipal Council (1993) 81 LGERA 441 Parrott v Kiama Council [2004] NSWLEC 77 Rundle v Tweed Shire Council (1989) 68 LGRA 308 Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	17, 18, 22 December 2009
DATE OF JUDGMENT:	15 March 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr A Galasso SC Instructed by Landerer & Company RESPONDENT Mr T Robertson SC and Mr G Newport Insructed by Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

15 March 2010

10465 of 2009 Goldberg v Waverley Council

JUDGMENT

1 Commissioner: This is an appeal pursuant to s97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Waverley Council (the Council) of development application DA148/09 for the erection of a dwelling house on Lot 1 of an approved subdivision at 362 Birrell Street Tamarama (the site).

2 The site is located at the western edge of Tamarama Park, to the east of the intersection of Birrell Street and Cross Street. The site is developed with a single storey house. There is currently no vehicular access to the site. Immediately to the east of the site is a detached dwelling house at 364 Birrell Street which also has no vehicular access. Birrell Street continues east of Cross Street as a public road as defined in the Roads Act 1993: from Cross Street to Ashley Street, and adjoining the site, it is a road vested in the Council; the eastern part which adjoins Tamarama Park is a Crown road. The land slopes steeply down from the street intersection to the east to join Tamarama Park, and is covered with grass and vegetation. There are stairs on the southern side providing access from Tamarama Park up to the street, and a grassed area with bench seat at the street level. The location of the site is shown on the following plan:

3 The Council has applied for that part of Birrell Street adjacent to 362 and 364 Birrell Street, for which it is the owner in fee simple, to be closed. In a letter dated 9 December 2009 (Exhibit P) the Land and Property Management Authority advised the Council that the application was refused, on the basis that there were objections from three adjoining landholders (including the applicant) regarding access; however the closure of the Crown road section, east of the land subject to the application made by Council, and its addition to Tamarama Park, would be considered.

4 The site has been the subject of previous applications. Development Application DA412/2006 was lodged in 2006 for “Demolition of existing dwelling; subdivision of land into 2 lots; extension of local road; and new driveway” at 362 Birrell Street. The Council refused the application and there was an appeal to the Court in Class 1 proceedings 10058 of 2007. On 25 May 2007 Biscoe J determined two preliminary questions of law:

Does the Court have the following functions and discretions of council under s 39(2) of the Land and Environment Court Act 1979:
(a) The functions and discretions of council in its capacity as determining authority under Pt 5 of the EPA Act?
(b) The functions and discretions of council in its capacity as roads authority under s 138 of the Roads Act 1993?

5 Biscoe J answered each of the preliminary questions “Yes”: Goldberg v Waverley Council (2007) 156 LGERA 27. The remaining issues were determined by Lloyd J on 3 March 2008: Goldberg v Waverley Council [2008] NSWLEC 49. The Court upheld the appeal in part and granted development consent for the demolition of the dwelling currently on the site and for the subdivision of the land into two allotments, and refused consent for the construction of vehicular access to the site. The terms of the formal orders, in particular conditions 1.1, 1.2, and 2, are relevant in these proceedings and are considered below. The subdivision has not been registered with the Land Titles Office.

6 The present application concerns the proposed erection of a dwelling on Lot 1 of the two allotments of the subdivision consent granted by Lloyd J. The provision of vehicular access to the site, and the configuration of driveway access within the site along its western boundary, are relevant for any future proposed development on Lot 2.

7 The proposed three storey dwelling comprises four bedrooms and car parking for two vehicles. The development application was accompanied by an application under s138 of the Roads Act for approval of building works and excavation over part of the unmade portion of Birrell Street vested in the Council to provide vehicular access to the site, the construction of a turning head adjacent to the vehicular access, and construction of a new pedestrian pathway, steps, viewing platform and retaining walls.

8 The issues between the parties in these proceedings include both questions of law and the merits of the application. The Council contends that the Court does not have the functions and discretions of the Council in its capacity as a determining authority under Part 5 of the Act, or in its capacity as a roads authority under the Roads Act, and that the access way is prohibited development. The applicant contends that those questions of law have been determined by the decision of Biscoe J in Goldberg v Waverley Council (2007) 156 LGERA 27 and the decision of Lloyd J in Goldberg v Waverley Council [2008] NSWLEC 49.

9 The merits issues relate both to the proposed dwelling house and to the proposed vehicular access. In relation to the proposed dwelling, the issues are whether the built form is in accordance with the building envelope and maximum excavation controls embodied in the conditions of consent for the subdivision, or the applicable planning controls, and whether it is unacceptable and will result in adverse amenity impacts on Tamarama Park and adjacent lands because of excessive excavation and the building footprint and floor area. In relation to the proposed vehicular access, the issue is whether the construction of the accessway and associated retaining walls alienates existing open space from public use, will have a detrimental visual impact in the pedestrian environment of Tamarama Park, and, as a consequence of its design as a domestic driveway, and steep gradients, introduce potential conflicts between pedestrians and vehicles and result in increased noise. For the development as a whole, the issues are whether the proposal will have an unreasonable impact on the character and heritage significance of the Tamarama Park Landscape Conservation Area, and whether the proposed construction works identified in the Construction Management Plan will result in unacceptable impacts on the use of the unmade part of Birrell Street.

Evidence

10 The hearing commenced with a site view at which evidence was given by 14 residents, 13 opposed to the proposal. The residents opposed to the proposal expressed concerns about:

-Impact on the use by members of the public of Tamarama Park including the pathway up to Birrell Street and the viewing area adjacent to the intersection of Birrell Street and Cross Street
-Loss of amenity to adjoining residents during construction, from noise of and lights from cars using the vehicle accessway
-Impact from excavation and construction on the structure of the building at 2 Cross Street
-Impact of construction including truck movements and effect on resident parking
-Non-compliance of the proposal in terms of bulk, height and scale exceeding normal expectations for a scenic foreshore development
-Public safety issues for the vehicle accessway
-Impact on possible Aboriginal relics and the heritage values of the gully
-Impact on fauna and flora in the gully, and on the waterfall in the gully

11 One resident spoke in support of the proposal, stating that he did not think the proposed accessway was different to an ordinary driveway going across a footpath, and that he thought there had been some confusion between private and public use and private and public land.

12 Mr Agi Zenon (on behalf of the applicant) and Mr Garry Mostyn (on behalf of the Council) provided a joint report on geotechnical issues in which they noted agreement that the excavation proposed would not have a significant impact on the hydrological character of the site reducing flow of sub-ground water to Tamarama Gully and Tamarama Park; and that the development can be constructed without causing damage to adjoining properties, however achieving this would require careful conditioning and execution of the works; and that there would need to be careful control of construction vibrations to protect adjoining property from damage. Neither Mr Zenon nor Mr Mostyn gave oral evidence.

13 Expert evidence relating to traffic engineering issues was provided by Mr John Jamieson (on behalf of the applicant) and Mr Chris Hallam (on behalf of the Council).

14 Dr Richard Lamb (on behalf of the applicant) and Mr Colin Brady (on behalf of the Council) gave expert evidence on heritage issues. Their evidence addressed the appropriateness and effect of the construction of the vehicle accessway on the road reserve; the effect of the location and construction of the vehicle accessway on the design of the dwelling and the impact of the dwelling and the accessway on Tamarama Park and the proposed Landscape Conservation Area; and the perceived scale and character of the proposed dwelling and the effect of that on the road reserve.

15 Mr Brian Kirk (on behalf of the applicant) and Mr Kerry Nash (on behalf of the Council) gave expert planning evidence. In their joint written report they addressed contentions relating to the built form of the proposed dwelling; the Council’s contention relating to the objectives of the adjoining zone; impact of construction work; consistency with the aims and objectives of the Tamarama Park Plan of Management; and the application for approval under s138 of the Roads Act. Their oral evidence primarily addressed issues of bulk and scale of the proposed dwelling, and amenity issues for bedroom three; the impact of the proposed vehicle access and roadworks; and safety during and after construction.

16 After the conclusion of the hearing, the parties provided written submissions on the application of the decision of Preston CJ in Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226. Final submissions were received on 25 February 2010.

Planning controls

17 The site of the proposed dwelling, being lot 1 in the subdivision approved in proceedings 10058 of 2009, is within the Residential 2(a) zone under the Waverley Local Environmental Plan 1996 (the LEP). The general aims of the LEP are set out in cl 2:

2. The general aims of this Plan are:
(a) to replace all existing local environmental planning controls which apply to the land to which this Plan applies with a single local environmental plan;
(b) to provide a framework for more flexible planning controls;
(c) to improve the amenity, safety and environmental quality of the built and natural environment;
(d) to provide for the economic and efficient use of land;
(e) to ensure development proceeds in an ecologically sustainable and equitable manner;
(f) to provide the opportunity for all members of the public to participate in the planning decisions of the Council; and
(g) to provide an appropriate balance and distribution of land uses.

18 The objectives of the Residential 2(a) zone are:

(a) to allow for housing only in the form of dwelling-houses and boarding houses,
(b) to maintain and improve the amenity and existing characteristics of localities predominantly characterised by dwelling-houses, and
(c) to allow certain non-residential uses of low intensity which are compatible with the character and scale of low density housing.

19 The land on which the proposed vehicle access is to be constructed is vested in the Council as a road, and is zoned 6(a) Open Space under the LEP. The objectives and development control table for the 6(a) zone are as follows:

Zone No 6 (a) Open Space

1 Objectives of zone

The objectives of the zone are:
(a) to protect, maintain and enhance existing open space, and
(b) to maintain and improve the range and types of recreational opportunities available to the community.

2 Without development consent

Development for the purpose of:
bushfire hazard control.

Exempt development.

3 Only with development consent

Development for the purpose of:
advertisements; amenities buildings; beach and foreshore protection works; community centres; recreation areas; recreation facilities; refreshment rooms; sports clubs; utility installations.

4 Prohibited

Any development not specified in Item 2 or 3.

20 Clause 43 of the LEP provides:

This Plan does not restrict or prohibit or enable the Council to restrict or prohibit:
(a) the carrying out of development described in Schedule 4, or
(b) the use of existing buildings of the Crown by the Crown.

21 Clause 8 of Schedule 4 provides:

The carrying out of any development required in connection with the construction, reconstruction, improvement, maintenance, repair or operation of any road, except the widening or realignment of a road.

22 The LEP includes Tamarama Beach, Park and Marine Drive Tamarama (L8) and Tamarama Park - Valley above Marine Drive Tamarama (L9) as landscape heritage items.

23 The Draft Waverley Local Environmental Plan 1996 (Amendment No 33) (the Draft LEP) amends Sch 5 of the LEP and consolidates heritage items, places, relics and conservation areas. The Draft LEP incorporates the road reserve in a Landscape Conservation Area contiguous with the existing landscape heritage items.

24 The Waverley Development Control Plan 2006 (Amendment No 4) (the DCP) applies. Part D1 sets out controls for residential development, including in part 5.0 generic controls relating to building height, size and bulk, setbacks. Those controls are discussed below. The Introduction to Part D1 provides at 1.4:

The development controls may not normally be varied. However, if an applicant is able to clearly demonstrate that a particular control is unreasonable or unnecessary in the circumstances of the case, Council may consider relaxing the control. Conversely, having regard to the physical characteristics of the site and the nature and proximity of adjoining and nearby development, Council may require a more restrictive control so as to minimise or eliminate any likely negative impacts.

25 The land the subject of the application for vehicle access is within the boundary of the Tamarama Park Plan of Management adopted by Council in 2007.

Permissibility and Roads Act consent

26 The development application included an application for approval pursuant to s138 of the Roads Act of the works required for construction of the vehicle access to the proposed dwelling. Section 138 provides:

138 Works and structures

(1) A person must not:
(a) erect a structure or carry out a work in, on or over a public road, or
(b) dig up or disturb the surface of a public road, or
(c) remove or interfere with a structure, work or tree on a public road, or
(d) pump water into a public road from any land adjoining the road, or
(e) connect a road (whether public or private) to a classified road,
otherwise than with the consent of the appropriate roads authority.

Maximum penalty: 10 penalty units.
…

27 The first contention raised by the Council is that the Court does not have the functions and discretions of the Council in its capacity as determining authority under Part 5 of the Act, or in its capacity as a roads authority under the Roads Act. The second issue raised by the Council is that the proposed vehicle access is prohibited development in the 6(a) Open Space zone.

28 It was common ground that a private driveway for residential purposes would be prohibited in the 6(a) zone. The Council submits that the accessway has the characteristics of a private driveway: it has the width of a private access, it is to serve a single allotment (or two allotments if the subdivision consent is acted on), it comprises a single lane access that does not permit the passing of vehicles and the width does not permit the safe passage of both pedestrians and vehicles. The applicant submits that there is no reasonable basis in these proceedings for not following the conclusion of Lloyd J in Goldberg v Waverley Council [2008] NSWLEC 49 that the proposed vehicle access should not be regarded as a private driveway for residential purposes.

29 There are some differences between the design of the access as proposed and that considered by Lloyd J. The present design incorporates a turning area outside the boundary of the site; the stairway access from street to the entrance of the site has been removed, and the proposal now includes access to stairs down to Tamarama Park from the entrance to the site. However, the central element of the vehicle accessway remains essentially the same in its design, width and curved configuration. I agree with the applicant that the differences are not of such significance as to require reconsideration of the conclusion reached by Lloyd J that the accessway should be regarded as a public road.

30 By virtue of cl43 and cl8 of Schedule 4 of the LEP the construction of roadworks on Birrell Street does not require development consent under Part 4 of the Act. Accordingly, the provisions of Part 5 of the Act apply. The roadworks are an “activity” as defined in s110 of the Act and the Council is a determining authority for the roadworks as it is a public authority whose approval is required to enable the activity to be carried out. Section 111 of the Act requires the determining authority, in its consideration of an activity, to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity. Section 112 states that if an activity is likely to significantly affect the environment the determining authority must first be furnished with, and consider, an environmental impact statement in respect of the activity.

31 Clause 228(2) of the Environmental Planning and Assessment Regulation 2000 (the EPA Regulation) sets out the factors to be taken into account when consideration is being given to the likely impact of an activity on the environment, in the absence of guidelines established by the Director-General:

(2) The factors referred to in subclause (1) (b) (ii) are as follows:
(a) any environmental impact on a community,
(b) any transformation of a locality,
(c) any environmental impact on the ecosystems of the locality,
(d) any reduction of the aesthetic, recreational, scientific or other environmental quality or value of a locality,
(e) any effect on a locality, place or building having aesthetic, anthropological, archaeological, architectural, cultural, historical, scientific or social significance or other special value for present or future generations,

(f) any impact on the habitat of protected fauna (within the meaning of the National Parks and Wildlife Act 1974),
(g) any endangering of any species of animal, plant or other form of life, whether living on land, in water or in the air,
(h) any long-term effects on the environment,
(i) any degradation of the quality of the environment,
(j) any risk to the safety of the environment,
(k) any reduction in the range of beneficial uses of the environment,
(l) any pollution of the environment,
(m) any environmental problems associated with the disposal of waste,
(n) any increased demands on resources (natural or otherwise) that are, or are likely to become, in short supply,
(o) any cumulative environmental effect with other existing or likely future activities.

32 The Council submits that neither the s111 nor the s112 function is capable of being performed by the Court under s39(2) of the Court Act, and can only be performed by the Council. The Council supports its construction of Part 5 of the Act by reference to the purpose of Part 5 being to allow self assessment of projects undertaken or regulated by public authorities; the absence of any merits appeal from an unfavourable Part 5 decision; the imposition under s112C of consultation and concurrence pre-conditions; the potential exercise of powers by the Department under s113(5) or the Minister under s114; the potential for the Court to be involved in making contestable decisions, including a decision whether to prepare or accept and environmental impact statement for exhibition; and the potential administrative issue for the Court Registry to become a place where environmental impact statements could be inspected under s113. The Council submits that there is no decision before that of Biscoe J suggesting that s39(2) of the Court Act attracts to the Court the functions and discretions of a determining authority under Part 5, and relies on the decision of Bignold J in Rundle v Tweed Shire Council (1989) 68 LGRA 308 rejecting the proposition that it was for the Court to determine whether an activity is likely to significantly affect the environment (and also dicta in Building Recyclers Investments Pty Ltd v Marrickville Council (2003) 131 LGERA 413 at [26]; Mirvac Projects (No 2) Pty Ltd v Concord Municipal Council (1993) 81 LGERA 441). The Council submits that even on the wide view of s39(2), which it submits has not been adopted by the Court of Appeal, the power to decide under Part 5 of the Act is not available to the Court on appeal; and that s39(2) refers to the matter that forms part of the subject matter of an application for development consent thus excluding development that, as in this case by virtue of cl43, may not be authorised or restricted by a development consent: since cl43 entirely excludes the road work from the purview of the development application, there is no relevant function of the Council for the Court to assume under s39(2).

33 The applicant submits that the issue of capacity under Part 5 of the Act was determined by Biscoe J, and was further addressed by Lloyd J in Goldberg v Waverley Council [2008] NSWLEC 49, who assessed the application under s111 of the Act and found that the proposed development was not likely to significantly affect the environment for the purposes of that section.

34 The proceedings before Biscoe J in Goldberg v Waverley Council (2007) 156 LGERA 27 were the Class 1 appeal in proceedings 10058 of 2007 against refusal of the development application for “Demolition of existing dwelling; subdivision of land into 2 lots; extension of local road; and new driveway”. Biscoe J described the “matter the subject of the appeal” for the purposes of s39(2) in the following terms:

52 As to the first question, the matter the subject of this appeal, in my view, is the proposal to demolish the existing dwelling, subdivide the land into two parts and to provide vehicular access from Birrell Street as a result of the proposed roadwork. The “matter” the subject of an appeal is a wider concept than the “decision” the subject of the appeal: see the authorities cited at [33] above. Although the proposed roadwork does not require development consent, it is a vital part of the overall proposal and many of the council’s reasons for refusing the development consent were to do with the proposed roadwork and the consent under s 138 of the Roads Act. Thus, in the particular circumstances of this case, the refusal of development approval, the proposed roadwork and the matter of a s 138 consent were inextricably intertwined such as to constitute the “matter” contemplated by s 39(2).

35 I agree with the applicant that the Council’s contentions on s39(2) of the Court Act have been determined in the questions of law answered by Biscoe J in Goldberg v Waverley Council (2007) 156 LGERA 27. Several of the arguments put on behalf of the Council were considered, and rejected, by Biscoe J in those proceedings (at paragraphs 58-64). Biscoe J engaged in an extensive consideration of the authorities both in this Court and the Court of Appeal, providing reasons for his conclusion that the broad approach to s39(2) (Kogarah Municipal Council v Kent (1982) 46 LGRA 334; McDougall v Warringah Shire Council (No 2) (1993) 30 NSWLR 258; Sydney City Council v Ipoh Pty Ltd (2006) 149 LGERA 329) should be adopted. Biscoe J concluded:

The result of that interpretation, as articulated by Kirby P in McDougall at 264 is that “all the functions and discretions the council could have exercised when considering the application are open to the Land and Environment Court on appeal and not only those strictly necessary to the approval”. Of course, the functions and discretions (as Cripps JA indicated in McDougall ) must have a relevant nexus to the matter the subject of the appeal in order to be “in respect of “ that matter. I take this to mean that if a development application is refused and something has a relevant nexus to it, s 39(2) throws a blanket over both, that is, empowers the Court to deal with both.

36 There is no basis on which it would be open to me not to apply that approach to the interpretation of s39(2), which was confirmed by the decision of Lloyd J Goldberg v Waverley Council [2008] NSWLEC 49.

37 In these proceedings the proposed roadwork is a vital part of the overall proposal and the matter of the s138 Roads Act approval is as intertwined with the refusal of development approval as it was in proceedings 10058 of 2007, and s39(2) of the Court Act empowers the Court to exercise the function of considering an application for consent under s138 of the Roads Act. The application for approval of the proposed road works under s138 of the Roads Act was the subject of an assessment by the Council under s111 of the Act (at part 2.3 of the Development Assessment Report of 15 July 2009), and was the subject of separate recommended reasons for refusal (pp27-28). The exercise of the Part 5 function has the relevant nexus to the development application, and s39(2) empowers the Court to exercise it.

Proposed vehicle access

38 The proposed accessway is represented in the following extract from the plans:

39 The experts agreed that the proposed accessway design would not allow an opportunity to continue the road down to 364 Birrell Street; and that it would not be possible to construct a 5.5m wide road that could provide access to both 362 and 364 Birrell Street because the resulting gradient would be too steep.

40 The proposed accessway is 3.6m wide, and has a maximum gradient of 20%. Mr Hallam and Mr Jamieson agreed that a residential cul-de-sac would typically have a minimum width of 5.5m and two-way operation. The experts were in agreement that AS2890.1-2004 requires a gradient for non-domestic driveways of 20% and that the accessway complies. Mr Jamieson noted that this is satisfactory for short lengths; Mr Hallam noted that public roads within residential subdivisions would typically have maximum gradients of 15-17%.

41 The experts agreed that the gradient of the part of the accessway from the boundary of Birrell Street into the site is 24% for the first 2m, 28.5% for the following 10m, then a 2m transition section of 19.27% and then 15%; and that this is contrary to cl2.6.2 of AS2890.1 which provides for a maximum gradient of domestic driveways of 25% and across a property line or building alignment of 5%.

42 The experts agreed on a minor re-design of the accessway that would allow a B99 vehicle to travel over the accessway without hitting the roadway (Exhibit L), and a revised design showing adjustments to the width of the accessway to provide a clearance of 500mm at the edge (Exhibit M).

43 The experts disagreed on whether the width of the accessway would create safety issues, in particular whether the 500mm clearance was adequate to meet safety concerns if there were a pedestrian on the accessway at the same time as a vehicle. Mr Hallam’s evidence was that a standard footpath is 1200mm and that 500mm is not sufficient for car to safely pass a pedestrian walking up the accessway; there would be safety concerns if a pedestrian walked down the accessway and not see a vehicle. Mr Jamieson disagreed, on the basis that the proposed accessway is intended for access to only two properties and as such the predicted volume of traffic would be insignificant. Mr Jamieson estimated that there would be one pedestrian an hour, or two in peak times. On the assumption that both lots in the subdivision were developed, there would be 18 vehicle movements per day, together with a few errant users, taking it to 25-30 per day. He was of the opinion that at that rate there would not be unacceptable conflict between vehicles and pedestrians, and that most pedestrians would take the more direct route from Tamarama Park up the flight of stairs on the southern side rather than the more indirect route up the zig zag stairs.

44 On the heritage issues, Mr Brady and Dr Lamb agreed that the vegetation proposed to be removed in construction of the proposed vehicle access is of low conservation significance. There was agreement that the construction of the vehicle accessway would not have any material impact on items of cultural significance or any recognised or documented items of cultural significance; the proposed development does not significantly change the ability of pedestrians to access the Landscape Conservation Area; the vehicle accessway is of low visibility from Tamarama Park and the existing accessible parts of the extension to the park in the proposed Landscape Conservation Area; and the construction of the vehicle accessway will result in a small decrease in the amount of available open space for use of the public.

45 Mr Brady’s overall position was that the proposed vehicle access and the form of the proposed residence have a significant impact on the cultural significance of the setting and extension areas of the Tamarama Park Landscape Conservation Area. The primary focus of his evidence in this regard was on the pattern of pedestrian access through direct and gradual ascent routes through switchback zig zag pathways, the latter providing a low impact on the setting, maintaining slope stabilisation and assisting erosion control, and which are characteristic of the extended Tamarama Park and also of the Landscape Conservation Areas to the southern end of Bondi Beach and Bronte Gully. Construction of the vehicle accessway would prevent continuation of these pathways to the upper areas of the reserve, which has an impact on the existing significance of the setting and the potential for future enhancement of this significance. Mr Brady was of the opinion that the vehicle accessway is of substantial visual impact when ascending and descending the south western extent of the road reserve which is an extension area to the Landscape Conservation Area.

46 Dr Lamb was of the opinion that the appropriateness of the vehicle access in the road reserve has previously been determined by the Court; and that the circumstances surrounding the potential addition of the road reserve to the Tamarama Park Landscape Conservation Area were known in previous proceedings and it was not considered that the road unacceptably compromised the heritage values of Tamarama Park or the proposed extension of the Park. The vehicle access would not make a significant difference to the ability of pedestrians to access the Park via the existing road reserve, and future improvements to that access could be made regardless of the presence of the proposed vehicle access over part of the reserve; the quality of the existing lookouts based on the view from it could be improved by the construction of the access is proposed, to the benefit of active and passive park users alike. In relation to the proposed addition of the road reserve to the Park and its incorporation into the proposed Landscape Conservation Area, he noted that the road reserve does not contain or affect either of the features identified as being of heritage significance to be included in the extension of the Park into the larger landscape conservation area. There are no policies and programs of work proposed to the road reserve in the Tamarama Park Plan of Management, other than to note that it be retained as one of 10 existing access ways and potentially an area for vegetation regeneration, and the proposal is not in conflict with either of these objectives. The vehicle access is of minimal visibility from Tamarama Park and places to the east and north, being effectively tucked in behind the dwelling. Dr Lamb considered that the proposed retaining walls would not block the view up the road; it would not be possible to see them other than possibly at a point where the path diverts.

47 The expert planners disagreed as to the impact of the vehicle accessway. Mr Nash was of the view that the proposed roadway and associated building works, including retaining walls, are substantial and will alienate land zoned for public open space purposes; the proposed works will have a high visual impact on pedestrians and others using the footpath and stairs as a primary access point for the Park and beach; there is the potential for pedestrian and vehicle safety conflicts; and that the proposal will result in a significant and adverse change to the existing informal character of the unmade portion of Birrell Street that would be incompatible with the purpose of its public open space zoning and the objectives of the 6(a) zone.

48 Mr Kirk was of the opinion that the suggestion that the construction of the carriageway would alienate land zoned for public open space purposes was a matter that Lloyd J had previously concluded would not be sufficient to lead to refusal of the earlier subdivision application. The design of the carriageway and associated structures now before the Court would not give rise to the conclusion that there would be an interference with the current recreational users of the open space zoned land, and instead, use of the land adjacent to the street as a congregating area for joggers, a viewing area for surfers, and as a resting place, will be enhanced and without increased public safety risks; and the works therefore accord with the objectives of the open space 6(a) zone. Mr Kirk did not agree that the Tamarama Park Plan of Management is relevant to this proposal, and in any event no works of any kind are proposed to occur within Tamarama Park. Mr Kirk considered that the construction of the accessway and associated structures would not cause unnecessary disturbance or obstruction to vehicles or pedestrians; and that its design satisfactorily addresses public safety issues.

49 Mr Kirk was of the opinion that the accessway would not be attractive to skateboarders, and that if it were, the surface of the road could be roughened by using a larger aggregate; Mr Nash was of the opinion that if that were done that it would increase tyre noise from vehicles using the accessway.

Consideration

50 The applicant submits that the decision in Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226 is distinguishable, on the basis that in that case the power enlivening the Court’s jurisdiction was an original application pursuant to s96(8) of the Act and hence s39(2) of the Court Act was not engaged, and the merits matters addressed in the judgment concerned a different section of the Roads Act (being s125). The Council submits that the decision is relevant to these proceedings. Its first submission is put formally, acknowledging that I ought to follow Biscoe J’s decision in Goldberg v Waverley Council (2007) 156 LGERA 27, and is that s138 does not confer power to grant a consent to a private landowner for road work as defined in the Roads Act. If there is power to grant consent for road works under s138, the Council submits that the power is to be exercised according to the considerations which the Roads Act requires the roads authority to take into account whether expressly or by implication. The power is exercisable only by the roads authority which is in a different position to a consent authority, and the expectations and preferences of the roads authority which owns and controls the public road must be given due deference and weigh heavily in the decision making process. Secondly, the power should not be exercised so as to derogate from the purpose served by the public road; the public road is presently used exclusively by pedestrians and any works to add another mode of user must not prejudice that mode and should be undertaken to satisfy an unmet demand for passage. The applicant disputes that there should be any notion of deference to the roads authority, and submits that on the evidence there cannot be any assumption of exclusivity of pedestrian use of the road and that in any event there is no prejudice to the pedestrian user.

51 Biscoe J held in Goldberg v Waverley Council (2007) 156 LGERA 27 that s138 of the Roads Act confers power to grant consent to a private landowner for road work as defined in the Roads Act. In exercising the function to consent under s138 of the Roads Act as enabled by s39(2) of the Court Act, the first issue is to identify the relevant considerations. In Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226 at [71]-[74] Preston CJ discussed the relevant considerations to be taken into account in exercising the power conferred by s125 of the Roads Act, which allows a council to grant approval to a person who conducts a restaurant adjacent to a footway of a public road (being a public road that is vested in fee simple in the council) to use part of the footway for the purposes of the restaurant. Section 125 has a more limited operation than s138, applying only to public roads vested in a council and to approval for use of part of a footway for the purpose of a restaurant conducted adjacent to the footway. I agree with the Council that both provisions appear in Part 9 of the Roads Act and concern a similar subject matter, namely the use to which a public road may be put by persons other than the roads authority, and that the decision provides the framework in which decisions under the Roads Act, including s138, should be made.

52 The relevant considerations to be taken into account are first, matters expressly stated in s138, and secondly, considerations which are to be implied from the subject matter, scope and purpose of the legislation. Preston CJ held:

74 In addition to the expressly stated considerations, the decision maker is bound to take into account considerations which are implied from the subject matter, scope and purpose of the statute conferring the discretionary power: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. The objects of the statute assist in construing the subject matter, scope and purpose of the statute but do not exhaust the inquiry. In this case, the objects are in s 3 of the Roads Act. The terms of the power itself may also be relevant to be considered, in this case, s 125 of the Roads Act. The public interest may, by implication from the subject matter, scope and purpose of the statute, be a relevant matter to be considered: Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 at [39], [43]. In this case, the public interest is central to the task of a council fulfilling functions under the Roads Act, including approving under s 125 the use of a footway in a public road for restaurant purposes. The public interest is multi-faceted and includes the public interest in members of the public being able to pass along and use public roads, in persons who own land adjoining the public road having access to the public road and in regulating the carrying out of various activities on public roads.

53 On the relationship between the relevant considerations under the Roads Act and planning issues, Preston CJ held:

78 If a planning issue or aspect is a relevant consideration to be taken into account in the exercise of the discretionary power in s 125 of the Roads Act, the commissioner in exercising that power was bound to take it into account. The fact that a planning issue or aspect might also have been taken into account in an earlier exercise of the power under the EPA Act to grant development consent is irrelevant. Each statutory power must be exercised taking account of the relevant considerations each statute requires the decision maker to take into account. The fact that there may be an overlap in one or more of the relevant considerations does not relieve a decision maker who takes the overlapping relevant considerations into account in an earlier exercise of power under one statute from the obligation to take those relevant considerations into account in a later exercise of power under another statute. Rather, each statute requires “reconsideration” of the overlapping relevant considerations, in the sense of taking the relevant considerations into account in each exercise of each statutory power.

54 In these proceedings, the relevant considerations are those that arise under the Roads Act, and those that arise under Part 5 of the Act, including the factors listed in cl 228 of the EPA Regulation.

55 The objects of the Roads Act are set out in s3:

The objects of this Act are:
(a) to set out the rights of members of the public to pass along public roads, and
(b) to set out the rights of persons who own land adjoining a public road to have access to the public road, and
(c) to establish the procedures for the opening and closing of a public road, and
(d) to provide for the classification of roads, and
(e) to provide for the declaration of the RTA and other public authorities as roads authorities for both classified and unclassified roads, and
(f) to confer certain functions (in particular, the function of carrying out road work) on the RTA and on other roads authorities, and
(g) to provide for the distribution of the functions conferred by this Act between the RTA and other roads authorities, and
(h) to regulate the carrying out of various activities on public roads.

56 The consent sought in these proceedings is for the carrying out of work on a public road. Section 5 of the Roads Act provides that a member of the public is entitled, as of right, to pass along a public road (whether on foot, in a vehicle or otherwise); s6 provides that the owner of land adjoining a public road is entitled, as of right, to access (whether on foot, in a vehicle or otherwise) across the boundary between the land and the public road. Both rights are aspects of the public interest to be taken into consideration. The applicant has an interest in obtaining access to the boundary of the site by a road capable of vehicular use. The power to consent to works to make this possible is an aspect of the regulation of the carrying out of activities as contemplated in s3(h) of the Roads Act.

57 The Council submits that to the extent that the effect of the proposed works is to foreclose options for road work which facilitates public passage, then it may more readily be concluded that the works derogate from the purpose of the public road. Even assuming that the s138 power is qualified in that way, the evidence before me does not go that far. The traffic engineering experts agreed that while construction of the proposed accessway would preclude extension of the made road to 364 Birrell Street, the steep gradient means it would not be possible in any event to construct a 5.5m wide road to both properties.

58 In considering the current use of the public road by members of the public in the exercise of the right conferred by s5 of the Roads Act, the evidence of the resident objectors was that the grassed area of land at the top of the slope is regularly used and enjoyed by both local residents and visitors, as a place to rest or enjoy the ocean outlook. The design now before the Court provides a similar space for use as a congregating area for joggers, a viewing area, and as a resting place. It was common ground that access from Tamarama Park up to the street using the direct stairs will not be impeded. I am satisfied that the current use of the public road by members of the public will not be detrimentally affected.

59 The public interest in members of the public exercising the s5 right to use the accessway, as a public road, either by vehicle or on foot, includes an assumption that they can do so safely. Equally, safety is a relevant factor in considering access by the occupants of lot 1 or any future occupants of lot 2, either by vehicle or on foot. In terms of vehicle traffic, the evidence supports the conclusion that the design at the footpath on Birrell Street will present as a driveway rather than an extension of Birrell Street, and that it is unlikely that vehicles will enter unless intending to access 362 Birrell Street. The design now before the Court includes a turning space outside the boundary of the site, which would enable a vehicle entering by mistake (or deliberately) to turn and travel back to Birrell Street in a forward direction rather than in reverse. To the extent that a driver of such a vehicle would have a better view, safety for drivers of other vehicles seeking to use the accessway and pedestrians using the footpath along Birrell Street or the accessway is improved. However, the evidence before me establishes that there would still be some risk. Mr Jamieson accepted that there was a potential concern as to whether a driver would be able to stop quickly or take evasive action to avoid colliding with a pedestrian on the accessway, but was of the view that the available sight distances were adequate at a design speed of 10km/h. Mr Hallam was of the view that if a vehicle were travelling faster, say at 15km/h, the stopping sight distance would be greater than that calculated by Mr Jamieson and would depend on the location of a pedestrian on the roadway.

60 The design of the accessway includes stairs from the entrance to the site linked to the zig zag pathway that leads up for part of the way from Tamarama Park as an alternative to the direct flight of stairs. The experts agreed that that design meant that it was possible that there could be a vehicle and a pedestrian on the accessway at the same time; they disagreed, however, as to whether that represented an unacceptable risk of conflict. Mr Jamieson’s opinion that it would not was based on his assumption of up to 25-30 vehicle movements a day if both lots were developed, and one or two pedestrians an hour using the accessway. Mr Jamieson’s estimate of pedestrian traffic was not consistent with the evidence of residents that the stairs from Birrell Street to Tamarama Park are regularly and extensively used both by locals and visitors, particularly at busy times including weekends and during the Sculpture by the Sea exhibition. While local residents would quickly become familiar with the design, visitors walking up from Tamarama Park might not realise that the zig zag pathway, as an alternative to the steeper direct stairs, led to a narrow roadway shared with vehicles. I am not satisfied that the estimate of two pedestrians an hour at peak times is a realistic estimate, and even on the basis of a limited number of vehicle movements per day, I am satisfied that there is a significant potential for both vehicles and pedestrians to be using the accessway at the same time. The separation distance and stopping sight distances relied upon by Mr Jamieson are dependent on a vehicle being driven carefully and at a low speed down or up the curved roadway, and to that extent the more conservatively based evidence of Mr Hallam is to be preferred, in particular his assessment that the 500mm separation is too narrow to enable a pedestrian and vehicle to pass safely. I am not satisfied that the risk to safety posed by the potential conflict between pedestrians and vehicles is acceptable.

61 Safety was a determinative issue in proceedings 10058 of 2009, in the context of the consideration required by s111 of the Act. In considering whether the construction of the proposed accessway was likely to significantly affect the environment, Lloyd J held:

63. A question arises, therefore, as to whether the construction of the driveway within the unmade section of Birrell Street is likely to significantly affect the environment. This is a question of fact. In my opinion, the construction of a relatively short length of driveway from the existing road pavement in Birrell Street to the property boundary, within the boundaries of a public road, is unlikely to significantly affect the environment. I have come to this view for the following reasons:
-the land in question is gazetted as a public road;
-both of the visual impact experts, Mr Warwick Mayne-Wilson for the council and Dr Richard Lamb for the applicant, agree that the vegetation which would be removed in constructing the driveway is of low conservation significance, being comprised largely of cultural weed species;
-both of the experts agree that the proposal will not result in impacts on significant vegetation;
-the impact is confined to a relatively small area;
-the present pedestrian access to Tamarama Park would not be impeded; and
-the only other use to which the road reserve is currently put is passive.
64 Moreover, in examining and taking into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the proposed driveway, as required by s 111, the same considerations suggest that the proposal would be otherwise acceptable, but for the matter to which I now turn.

The proposed vehicle and pedestrian access - public safety

65 The environment is widely defined in s 4 of the EP&A Act to include all aspects of the surroundings of humans. There is one aspect of the environment, thus defined, which leads me to refuse that part of the development comprising the proposed driveway. The matter which leads to this conclusion was identified by several of the local residents who gave evidence on the view. It is the issue of safety connected with the driveway design as raised during the public evidence taken from objectors as part of the on site inspection. These concerns relate to pedestrian safety of those using the footpath at the end of Birrell Street which conflicted with vehicles using the proposed driveway to the site and problems which would arise if members of the public exercised their right, accidentally or otherwise, to drive to the end of Birrell Street which would extend along the driveway to the boundary with the applicant’s property.

62 There were four aspects of the design of the accessway as proposed in those proceedings on which Lloyd J based the decision to refuse approval under the Roads Act:

72 I have reached this conclusion for the following reasons:

-it is unacceptable to rely on a turning space on private property which is incapable of accommodating other than a limited range of vehicles;
-there are significant and unresolved safety issues for pedestrians using the stairways to the applicant’s property;
-there are significant and unresolved safety issues for drivers of vehicles travelling along the driveway in either direction; and
-there are significant and unresolved safety issues for pedestrians on the Birrell Street footpath.

63 As noted above, the first concern has been addressed in the design now before the Court. The second concern has been addressed to the extent that the then proposed stairs from the street to the applicant’s property have been removed; however, those stairs have been replaced by stairs that also pose significant and unresolved safety issues for pedestrians. The third and fourth concerns have been ameliorated somewhat by the provision of the turning space which would enable a vehicle to leave the accessway in a forward direction. There is still the potential, however, for such a vehicle travelling at speed to street level to pose some safety risk to pedestrians on the accessway or on the footpath.

64 Safety risks for pedestrians and vehicles using the public road is a relevant consideration to be taken into account under the Roads Act. It is also relevant in assessment of the likely impacts of the proposal on the environment as required by s111 which includes consideration of any risk to safety of the environment (cl228(2)((j) of the EPA Regulation), a term defined broadly in the Act to include all aspects of the surroundings of humans. The proposed accessway poses significant safety risks for pedestrians and vehicles and consent under the Roads Act to its construction should not be granted.

65 The conclusion that on safety grounds the accessway should not be approved makes it unnecessary to consider the evidence as to cultural and visual impacts of the accessway, the potential for continuation of the zig zag pathway, or the relevance of the Tamarama Park Plan of Management, and I make no findings in that regard.

Proposed dwelling

66 The conditions imposed on the approval of the subdivision are relevant in these proceedings in two respects. The Council contends that the proposed development is not in accordance with the specific building envelope and maximum excavation controls embodied in the conditions of the consent of subdivision, and that the application amounts to an abuse of process. The applicant rejects this contention, contending that the application is an appropriate and sensitive design response, and that departures from the controls in the subdivision consent can be approved by the consent authority. Secondly, the Council contends that the built form of the proposed development is unacceptable as it does not comply with key built form controls under the DCP and results in an adverse visual and amenity impacts on Tamarama Park, Tamarama Gully and adjoining residential buildings. The applicant rejects this contention, on the basis that the subdivision consent granted by the Court enables the development to be carried out.

67 The conditions of the subdivision consent granted on 25 March 2008 included the following:

1.1 Approved Development

The development must be in accordance with:
(a) plan of subdivision prepared Rygate and Company Pty Ltd dated 2 September 2005; and
(b) the drawings prepared by X.pace as follows:
(i) Story Board dated 1 November 2007;
(ii) entitled “Plan-Site”, Drawing 1-00 Amendment B, showing building platforms.
1.2 The building envelopes and depths of excavations set out in the X.pace plans, in paragraph 1.1(b), constitute the maximum building envelopes and depths of excavation for any buildings on the site. A restrictive covenant is to be placed on the title to each lot to the effect that no building on that lot can be built outside the relevant envelope for that lot and no excavation undertaken below the relevant depths of excavation for that lot shown on those plans.
The height of the bridge structure between Lots 1 and 2 set out in the X.pace plans, in paragraph 1.1(b), constitutes the maximum height of any bridge structure between Lots 1 and 2. A restrictive covenant is to be placed on the title to each of the lots to the effect that the maximum height of any bridge structure between Lots 1 and 2 is that set out in the X.pace plans in paragraph 1.1(b).
2 Additional Development Application Required

This consent provides for no works on the site known as 362 Birrell Street Tamarama Lot A DP 379266 other than the demolition of the existing dwelling house. Any other works required the submission of separate development application.

68 The drawings by X.pace referred to in conditions 1.1 and 1.2 of the subdivision consent included a diagrammatic representation of a three storey building on both proposed lots 1 and 2, and the connecting bridge referred to in condition 1.2.

69 The applicant submits that in granting development consent for the subdivision, Lloyd J took the extra step of prescribing a modulated set of design guidelines for three levels of a dwellinghouse on the site, and that the proposal currently before the Court is significantly and substantially aligned to that. The Council submits that Lloyd J did not consider the development controls that relate to the erection of the building on the site; condition 2 of the subdivision consent makes it clear that the consent provides for no works on the site other than demolition; and the consideration by Lloyd J of the planning principle in Parrott v Kiama Council [2004] NSWLEC 77 was in the context of a constraints exercise to determine what the outer limits of a possible building form might be.

70 Lloyd J considered the building envelopes and issues of visual impact in the context of two issues identified by the Council, being geotechnical issues arising from the proposed northern allotment in particular, and the issue of impact on the significance of Tamarama Park as a landscape item through the need for a bridge to enable access to the proposed northern allotment and issues of visual impact:

13 Issues (b) and (c) raised by the council effectively concern the acceptability of the application to subdivide the existing allotment into two new allotments. No objection is raised to the demolition of the existing dwelling at the southern end of the existing allotment nor to the opportunity for a redevelopment of a new dwelling generally on the footprint of the existing dwelling.

14 These two issues, therefore, relate to the proposed northern allotment. The first of these issues, issue (b) above, follows from the topography of the proposed northern allotment. The council says that the applicant has not provided adequate geotechnical information to enable assessment of whether such an allotment is, in fact, capable of supporting the erection of a dwelling.

15 The second of these issues, issue (c) above, although couched in terms dealing with what the council says are unacceptable impacts on the significance of the park as a landscape item on the LEP heritage map, is in substance that the construction of an access bridge across the creek gully which bisects the site and the construction of a dwelling within the footprint and envelope proposed by the applicant would have an unacceptable visual impact when viewed from the public park below to the east.
…
22 The council raises the question of whether the proposed subdivision complies with a planning principle stated by Roseth SC in Parrott v Kiama Council [2004] NSWLEC 77 at [17] which is in the following terms:

When should a subdivision application include information on the buildings to be built on the resulting allotment(s)? It is normal practice in Australia to subdivide land without constraints on the buildings that can later be built. While this practice is appropriate in most cases, it is not always so. I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them.


23 I accept the general tenor of what was set out by Roseth SC. In this instance, however, I am satisfied that the envelope and building footprint proposed by the applicant together with the evidence given by Mr Walker of the engineering feasibility of construction on the proposed northern allotment enables me to conclude that the information provided by the applicant together with the three-dimensional plans satisfies this planning principle for this proposal.

24 It follows, therefore, that I am satisfied that neither of the grounds upon which the council opposes the subdivision element of the application warrants refusal of that element or would contribute to a refusal of the whole proposal.

Visual impact
25 Dr Richard Lamb, the applicant's visual impact consultant, prepared photomontages which show, amongst other things, the upper limits of visible structures on the site if an access bridge to and a dwelling on the northern allotment were to be constructed. …

71 Lloyd J’s consideration of visual impact was focussed on the proposed bridge linking lots 1 and 2 (paragraphs 26 and 27), and on the proposed northern allotment (paragraphs 28 and 34). Lloyd J commented on the visual backdrop for the two proposed building envelopes and the bridge in the following terms:

34 In assessing the visual impact of that which is proposed for the northern allotment’s building footprint and envelope, in the context of Dr Lamb's photomontage (subject to the two qualifications earlier noted) I must note the visual backdrop to the two proposed building envelopes and the proposed bridge. These can be vaguely discerned, as a residential flat building of a honey-brown colour immediately to the west of most of the proposed development envelopes and a much larger multi-storey residential flat building on the lip of the escarpment behind and to the north of the proposed northern building envelope.

35 This latter building, designed by the late Harry Seidler, truly dominates the skyline viewed from the bowl of the valley within which the park is located. Anything constructed on the applicant’s land would sit well below these two residential flat buildings.

72 Lloyd J considered the impact on Tamarama Park:

37 The council submits that there would be an unacceptable impact on the park; visually as viewed from the foot of the gully or from the open space further east, and; as a landscape item on the LEP heritage map. I am satisfied, however, that such impact is negligible and would certainly not warrant refusal of the application.

38 I have reached this conclusion for two reasons. Firstly, I am satisfied that a proper consideration of the photomontage, in the context of the valley itself, viewing toward the escarpment from the relevant park viewing point, shows the development is not of scale unsympathetic with an understanding of the topography of or an enjoyment of the public open space in the valley and the lower portion of the gully. Moreover, it is reasonable to assume that the house at No. 364 Birrell St, immediately to the east and somewhat below the southern portion of the subject land will also, in the foreseeable future, be redeveloped. This dwelling, which currently straddles two small allotments (one of which, prima facie, is not capable of supporting separate development), is, in any future redevelopment, likely to be replaced by a structure which could extend modestly further to the north than the present dwelling on this site. Although I do not consider that the height or likely possible shape of any bridging structure across the gully to service the northern allotment would be visually offensive or unsatisfactory in its context, such bridge is also likely to be modestly further masked, at least to some extent, by any redevelopment at No. 364 Birrell St.

39 Secondly, if contrary to my first conclusion there is some degree of adverse visual impact occasioned by construction on the proposed northern allotment, that will not be the element of the landscape at the head of the gully to which the eye of any observer using the park below will inevitably be drawn. The two residential flat buildings, particularly the northern of them, are so dominant in that landscape that they will immediately draw the eye of the park user to them. Any minor intrusion by that which is proposed to be erected below would be de minimis in its total visual context.

73 The building envelopes for the two proposed dwelling are described as follows:

36 The applicant has provided not merely a footprint for each of the proposed dwellings, but the precise dimensions of a building envelope for each of the two footprints and has agreed that these footprints and building envelopes be protected by a public positive covenant in favour of the council. These footprints and envelopes show the maximum permitted extent of excavation below and the maximum extent upward of any dwelling beyond the present natural ground level on either dwelling footprint. The covenant would also restrict the maximum height of the proposed access bridge between the two allotments to that depicted in the three-dimensional plans provided (which are reflected in Dr Lamb's photomontage).

74 I agree with the Council that in granting consent to the subdivision into two allotments, Lloyd J was not approving the whole or part of a building form that might be erected on either site. In considering the diagrammatic representation of a three storey building envelope, Lloyd J was applying the planning principle elaborated in Parrott that a subdivision application should provide information on the buildings to be built on the resulting allotments, and constraints on future buildings in the form of a positive covenant, in circumstances where there are concerns about for example the environmental sensitivity of the site. This is supported by the Visual Impacts Assessments report dated March 2009 provided by Dr Lamb in support of the development application in these proceedings where he states:

I prepared Design Guidelines for the proposed development of both of the proposed lots for dwelling houses and for the road works, in consultation with X.pace Design Group and geotechnical experts. The intention of the Design Guidelines was to provide the Court with enough certainty that the subdivision could be approved and dwellings erected on the lots without likely future unacceptable environmental impacts, including visual impacts.

75 The building envelopes set a maximum. Condition 2 of the subdivision consent expressly states that any works other than the demolition works require a further development consent. The building envelopes do not represent an approval of an ultimate building configuration on either site; and even if that conclusion is wrong, the proposal presently before the Court does not conform to the envelope accepted for lot 1. The proposed dwelling has to be assessed pursuant to s79C of the Act against the relevant planning controls.

76 The proposed dwelling has a building platform area of 230sq m, and the maximum excavation is agreed to be 5.2m. Proposed floor levels are level 0: RL42.13, level 1: RL46.0, level 2: RL 49.05 and roof level: RL52.0-53.8. The proposed dwelling was assessed by Council officers against the controls in the DCP, and on that assessment did not comply with the standards relating to height, maximum excavation, floor space ratio, rear setback, elevated external decks, and minimum landscaping area. As a result of an amendment to the Construction Management Plan, it is now agreed that the proposal satisfies the DCP control requiring 50% of front lands to be soft landscaping by achieving 66% soft landscaping, and the proposal satisfies the overall landscaping control by providing 62% of landscaped area and the soft landscaping control by providing 36% of soft landscaping.

77 The building height is 8.5m, and the floor space ratio is 0.78:1. Neither is consistent with the DCP controls which specify 7.5m and 0.6:1 respectively. The planning experts disagreed as to whether the proposal is consistent with the objectives of the controls.

78 The objectives of the building height controls are set out in Part D1, at 5.1:

(a) To ensure the height and scale of development relates to the topography with minimal cut and fill;
(b) To minimise loss of views from other dwellings;
(c) To minimise loss of privacy to other dwellings;
(d) To maintain acceptable solar access to dwellings and adjoining open-space;
(e) To minimise bulk-related impacts of dwelling-house and dual occupancy development;
(f) To ensure buildings enhance the predominant neighbourhood and street character; and
(g) To ensure that visual impacts of the scale of dwelling-house and dual occupancy development are acceptable.

79 The strategy for achieving the building height objectives is at 5.1.1a:

Dwelling-house development is not to be excessive in height and scale and should be compatible with the existing character of the location.

80 The objectives of the size and bulk controls are set out in Part D1, at 5.2:

(a) To ensure that new dwellings and alterations and additions to existing dwellings are of an acceptable size and bulk in relation to the size and shape of the allotment;
(b) To ensure there is no overdevelopment of sites;
(c) To ensure that any negative impacts on residents living in buildings on adjoining or nearby allotments are minimised and where ever possible, eliminated;
(d) To ensure that dwelling-house and dual occupancy development adds to and does not detract from the existing streetscape and character of the area; and
(e) To ensure that the bulk of dwellings is in character with surrounding development.

81 Mr Nash was of the opinion that the proposal is not consistent with the objectives at D1.5.2 of the DCP. The floor space ratio at 0.783:1 exceeds the control of 0.6:1 by 30%, or 83 sq m, which given the site constraints of allotment size and topography is excessive and results in inappropriate bulk and massing on the site. The non-compliance with the height control is directly related to the excessive floor area proposed and the placement of the building on the site, and a reduction in the footprint of the northern portion would reduce the gross floor area and achieve compliance with the height control, and be more consistent with the objectives at D1.5.1 of the DCP.

82 Mr Kirk disagreed that the proposed dwelling would result in an inappropriate amount of building bulk and mass on the site, and was of the opinion that the objectives in D1.5.2 were met. The residential flat buildings to the west and north of the site present a bulk and scale which is disproportionate to the proposed dwelling house and provide a context which the proposed dwelling does not offend. The non-compliance with the height control is in the middle level of the building and would be imperceptible as being in breach of the DCP height control, and does not offend the objectives in D1.5.1.

83 The visual impact of the proposed building was the subject of detailed evidence. Mr Nash was of the opinion that apart from bedroom 3 and part of the driveway the building would be visible from the north east; the gable of the existing dwelling is visible from the gully so the driveway, staircase, the wall from the turntable to the street alignment would be visible from the grassed area. Mr Kirk was of the opinion that there would be no adverse impact as a result of that. Mr Brady accepted that there would be limited views of the building from the existing Tamarama Park, however the extension areas of the landscape conservation area were equally of cultural significance. Dr Lamb was of the opinion that the bulk and scale and height of the building is appropriate and is also acceptable in the context of what the Court considered appropriate in granting subdivision consent.

84 Mr Nash and Mr Kirk were in agreement that the maximum depth of excavation is 5.2m, and that 88.6% of the building footprint is subject to excavation. This does not meet the requirements in part 5.1.1 of the DCP which requires a maximum depth of 3m and 50% of the footprint. The Council contends that the eastern wall of bedroom 3 is fully below the existing ground level; excavation occurs outside the footprint of the building to provide access for light and outdoor space and within 1m of the south and east boundaries, whereas the controls provide that excavation be confined within the building footprint and that no excavation occur within a 1m setback from the side boundaries; and the proposal does not seek to limit excavation or minimise alterations to the existing or natural topography. The applicant’s position is that the proposed excavation is less than that previously approved by the Court, and satisfies the relevant objectives of the LEP. Bedroom 3 will have satisfactory access to natural light and ventilation as the external opening is a door rather than a window; while identified as bedroom 3 it will be the fourth bedroom, and will be located on the middle level where the occupant will have access to a living area. The applicant submits that the total mass of the proposed building is less than the building envelope considered previously and found to be acceptable, and that the extent of excavation required was before Lloyd J in his consideration of the building envelope.

85 The applicant’s position that it is unnecessary or unreasonable to apply the height, floor space ratio or excavation controls is primarily based on reliance on the building envelopes described by Lloyd J in paragraph 36 of his decision in Goldberg v Waverley Council [2008] NSWLEC 49. For the reasons in paragraphs 74 and 75 above, I am not persuaded that this is a justification for departure from the controls in the DCP which, while not determinative, is a fundamental element in, or focal point to, the decision-making process (Zhang v Canterbury City Council (2001) 115 LGERA 373).

86 In considering the evidence as to impacts of the size and bulk of the proposed building, including visual impacts, I note that the assessment of visual impact in the earlier proceedings was primarily focussed on the building envelope proposed for the northern allotment and the bridge to it from the southern allotment. The reference, in paragraphs 34-35 and 39 of the judgment of Lloyd J quoted above, to the dominance in the landscape of the two residential flat buildings needs to be read in that context. The expert evidence as to visual impact in the present proceedings is based on assessment of the detailed design for the dwelling, with the benefit of the site view which included pegs marking specific parts of the proposed building. Based on that evidence, the dwelling will be visible from the residential development to the north and north east, from Tamarama Park, and, and if remediation work is carried out at some future time, from the gully to the west of the Park. The extent of excavation required means that bedroom 3 on the lower ground level has restricted access to natural light and ventilation; while I accept that this is a fourth bedroom, it still results in poor amenity. I am not persuaded that the proposed dwelling meets the objectives of the DCP controls, in particular D1.5.1(e) and (g) and D1.5.2(a) and (b), such as to justify its size and bulk.

87 The design of the dwelling house incorporates vehicle access along the western boundary, a turntable, and on site parking for two cars. Those elements contribute to the extent of excavation required, the height, and the bulk of the proposed building. In the absence of approval for the vehicle access, there is no justification for the bulk and size of the proposed building or the extent of excavation. It may be possible to design a building which complies with the DCP controls with or without vehicle access, however that is not the application before me. The application for consent to the proposed dwelling should be refused.

88 The applicant submitted that if one component of the application was considered to be acceptable and the other not, there should be an opportunity to address aspects of the development that required amendment. The decision of Biscoe J in Maxnox Pty Ltd v Hurstville City Council (2006) 145 LGERA 373 is authority for the proposition that in some cases it may be appropriate to give an applicant an opportunity to amend its application following an interim judgment. Biscoe J declined to do so in Maxnox, on the basis that there was at least the possibility that a modified development which the Court was likely to approve would be significantly different from the proposal then before the Court. The circumstances are similar in these proceedings. It might be possible, as the applicant suggested, to respond to the issue of separation distance between vehicles and pedestrians on the accessway by widening the area outside the kerb on the driveway; however, that would not address the more fundamental issue of the design of the stairs making it likely that pedestrians would use the accessway as an alternative to the direct stairs, and would also raise additional issues relevant to assessment of the cultural and visual impact of the accessway. The design of the dwelling house is premised on there being vehicle access and on site car parking, and it is probable that an amended design without vehicle access would be significantly different from that the proposal currently before the Court. It is inappropriate to deliver an interim judgment permitting the application to be amended. Consent to the erection of the dwelling house should be refused.

Orders

89 The orders of the Court are:

1. The appeal is dismissed.

2. Development Application DA148/09 for the erection of a dwelling house on Lot 1 of an approved subdivision at 362 Birrell Street Tamarama, is refused.

3. The exhibits, with the exception of exhibit A, are returned.

Linda Pearson
Commissioner of the Court