Goldberg v Waverley Council

[2008] NSWLEC 49

Land and Environment Court

of New South Wales

CITATION:	Goldberg v Waverley Council [2008] NSWLEC 49
PARTIES:	APPLICANT: Paul Anton Goldberg RESPONDENT: Waverley Council
FILE NUMBER(S):	10058 of 2007
CORAM:	Lloyd J
KEY ISSUES:	Development Application :- subdivision into two allotments - engineering feasibility of development - visual impact - vehicle and pedestrian access - permissibility of purpose - unlikely to significantly affect the environment - limited visibility for vehicles and pedestrians - public safety
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Pt 5 s 111 Roads Act 1993 s 138 and s 139 Waverley Local Environmental Plan cl 43 and Sch 4
CASES CITED:	Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202 CBD Prestige Property Holdings Pty Limited v Hornsby Shire Council [2006] NSWLEC 629 Chamwell Pty. Ltd v Strathfield Council (2007) 151 LGERA 400 Currency Corporation Pty Limited v Wyong Shire Council (2006) 155 LGERA 230 Goldberg v Waverley Council [2007] NSWLEC 259 Parrott v Kiama Council [2004] NSWLEC 77 Peters v Manly Municipal Council (2006) NSWLEC 676 TC Punnett and Associates Pty Limited v Warringah Council (2001) 115 LGERA 314
DATES OF HEARING:	5 February 2008 & 6 February 2008
DATE OF JUDGMENT:	3 March 2008
LEGAL REPRESENTATIVES:	APPLICANT: A E Galasso SC and S J Brockwell (barrister) SOLICITORS: Landerer & Company T F Robertson SC and G B Newport (barrister) SOLICITORS: Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Monday, 3 March 2008

LEC No. 10058 of 2007

Goldberg v Waverley Council [2008] NSWLEC 49

JUDGMENT

Background facts

1 HIS HONOUR: The applicant, Mr Paul Anton Goldberg made a development application to Waverley Council in respect of a property known as No. 362 Birrell Street, Tamarama. The proposal is to demolish an existing house on the land, to subdivide the land into two allotments, and to construct a driveway on the unmade section of Birrell Street to which the land has a frontage, to provide access to the land. The council refused the application and Mr Goldberg now appeals to the court.

2 The existing property has an area of about 1,067 square metres. The proposed lot 1 at the front would have an area of 451.4 square metres and the proposed lot 2 at the rear would have an area of 615.6 square metres. The subject land is zoned 2(a) Residential under the Waverley Local Environmental Plan 1996 (“the LEP”) and the proposed subdivision for residential purposes on that land is permissible with development consent.

3 The unmade section of Birrell Street on which the new driveway would be constructed is a public road within the meaning of the Roads Act 1993, but is zoned 6(a) Open Space under the LEP. The council is the roads authority for that road under the Act. The unmade section of Birrell Street at present provides pedestrian access to the subject property and to two other properties. It also provides pedestrian access from the constructed section of Birrell Street to Tamarama Park, although it is not part of that park.

4 Development consent is not required for the construction of a road: cl 43 and Sch 4 of the LEP. The council contends, however, that the driveway is not a “road” but a “driveway” to provide access to the residential subdivision, which is a prohibited use under the 6(a) zone. In any event, a consent by the relevant roads authority is required for the construction of the driveway, or road, under s 139 of the Roads Act.

Issues

5 A number of issues were initially raised for determination, some of which were resolved prior to the hearing. One issue was resolved by Biscoe J in a judgment delivered on 25 May 2007: see Goldberg v Waverley Council [2007] NSWLEC 259. His Honour held that because the application involved both an application for subdivision and an application under s 138 of the Roads Act for a consent under s 139 of that Act, then in hearing and disposing of the appeal the Court has all the functions and discretion of both the consent authority under the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) and of the roads authority under the Roads Act. The remaining issues identified by Mr T F Robertson SC and Mr G B Newport, appearing for the council, as I understand them, are as follows:

a) Whether it is appropriate to convert a public asset for a private purpose and whether there is a necessity for the driveway.

b) Whether the degree of change which would be generated by the subdivision - including its purpose for residential development on identified building envelopes - can properly be assessed having regard to the land’s physical constraints.

c) Whether it is appropriate to further develop the land in the gully adjacent to Tamarama Park, having regard to the significance of the park as a landscape item on the LEP heritage map.

d) Whether the development on the unmade section of Birrell Street is a road or a private driveway for residential purposes and whether it is development which falls for consideration under Pt 5 of the EP&A Act or under Pt 4 of that Act.

6 The Court has had the benefit of a view of the subject land, the unmade section of Birrell Street, and Tamarama Park. The Court also heard from several objectors to the development, whose opinions are valuable and some of which, in this case, are determinative.

Interference with present uses

7 I now turn to consider issue (a) – the proposed construction of an access way within the unmade portion of Birrell Street. For reasons which are discussed later, there is no legal impediment to the provision of such access, subject to a consent being obtained under the Roads Act.

8 I now, however, consider the question of whether the construction of the proposed access is an appropriate and acceptable use of a public asset for a private purpose, and whether there is a necessity for it. The proposed access involves two separate elements. The first is a vehicle driveway which commences adjacent to the path to the park on the southern side of the unmade portion of Birrell Street and the second is the extension of the footpath and addition of a flight of stairs to join the proposed driveway. This pathway extension and stairs are on the northern side of the unmade portion of Birrell Street.

9 The proposed driveway is substantially different from the design in the preliminary legal point proceedings which were determined by Biscoe J. That earlier design was more akin to a conventional extension of Birrell Street with a conventional driveway accessing the site than the present design. A copy of the present design appears below to enable a better understanding of this issue.

10 This driveway is to be, in effect, the width of a normal suburban driveway. It is to be constructed in part cut into the existing hillside and in part as a slab of above fill, held in place by a sandstone block or sandstone faced by retaining wall. Although the nature of the retaining wall was in contention between the parties, it is not a matter which I need to determine given my general conclusions concerning the unacceptability of this proposed access design.

11 The council's objection to this driveway is that it alienates an area of public land at the end of Birrell Street at the head of the access slope to the park. During the course of the site inspection, I heard extensive evidence from resident objectors concerning both the active and passive use of this area. This is land, the council says, which is regularly used and extensively enjoyed, both actively and passively, not merely by residents of the immediate vicinity of the site, but also by those living further afield. The evidence given on site was that the area at the commencement of the proposed driveway is used extensively as a staging and congregating area by those using the steps that run into the lower portion of the park, as part of their exercise regime. Visiting surfers use the location to look out to check surf conditions at the beach below. At the top of the slope there is a park bench, where it is possible to sit and enjoy a panoramic outlook to the ocean.

12 These matters are not ones which should lead to refusal of the application, as I have elsewhere concluded that it is legally permissible to construct such an access way and any such access will, inevitably, lead to interference with these uses. Indeed, I note this design would have a significantly lesser impact on these uses than, for example, that which was before Biscoe J. The applicant proposes, as part of the design and construction of the driveway, to relocate the park bench and to landscape this area.

Subdivision of the allotment

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.

Geotechnical information

16 I now turn to the first of the matters raised by the council concerning the proposed northern allotment. The applicant's response to the suggestion that there is insufficient information to assess geotechnical issues concerning the proposed northern allotment and the feasibility of possible excavation to the maximum depth proposed and the construction of a building to the maximum building envelope above was to call expert evidence from a geotechnical engineer, Mr Bruce Walker, who had undertaken a walkover inspection of part of the site in 2005. He was not then able to access as much of the site as I was able to see as there has been significant clearing of vegetation, particularly in the northern portion of the site, in order to facilitate the site inspection in these proceedings. Mr Walker has not revisited the site since his initial inspection.

17 Essentially, Mr Walker did not foresee any technical impediments to the development of the northern allotment within the envelope proposed but indicated that it would be a difficult task and, by necessary inference, likely to be an expensive process. Although he was pressed in cross-examination by Mr T F Robertson SC about issues as to how detention ponds and sedimentation protection could be provided during excavation and construction, he did not draw back from the proposition that such facilities could be provided.

18 Although Mr Walker was unable to specify precisely where the detention ponds or sedimentation controls could be located, he expressed the opinion that:

• it would be possible to deal with these issues on the site; and
• staging of excavation, and more than one set of sedimentation and stormwater detention measures might need be incorporated in any detailed design; but
• it would not be impossible to deal with the problems in an environmentally satisfactory fashion and within the site.

19 Mr Walker also indicated that there might well be a necessity to lift machinery in by crane or to construct temporary bridging across the head of the gully for construction access. As I understand his evidence, the practical consequences of dealing with these issues could also be dealt with on the applicant’s property without adverse environmental impacts.

20 As to the geological substratum and whether it consists of a series of partially subsurface connected rock platforms or whether there are large detached, partially buried rock elements known as floaters, Mr Walker indicated that this would be a matter for determination during the construction design. He had not undertaken any drilling on the site to obtain information of that nature. It was, however, his opinion that these issues were technically manageable ones which could be dealt with during the construction design and execution process.

21 The council did not present any evidence to contradict these conclusions. As a consequence, I have no reason to reject Mr Walker’s evidence.

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. These are grey-shaded in the relevant photomontage. The council has provided no evidence which disputes the general accuracy of the relevant photomontage. A copy of the relevant photomontage from the perspective of a viewer at a point in the park toward its western end (but not at the extremity of the grassed area of the park) is reproduced below.

26 Two matters should be noted when considering this photomontage. The first matter is that the central grey element on the photomontage, being the depiction of the upper limit of the deck of any possible access bridge across the creek gully to the northern allotment, shows this as a constructed, filled in space below the deck of a bridge. The applicant’s uncontested evidence, as I understand it, is that such a bridge would be a span with a pier at each end and that there would be a view through and underneath that span. The contrary impression is as a consequence of the software used to develop the photomontage. In reality, a considerable portion of the face and slopes of the gully would remain visible below the deck of any bridge so constructed.

27 I note at this point that the applicant accepts that the conditions of consent for any subdivision should fix the upper portion of the bridge deck depicted in this photomontage as the upper height limit of any bridge deck to be constructed to serve a northern allotment. This, in effect, would have the uppermost point of the deck of any such bridge passing across the undercroft space of the residential flat building located immediately to the west. Such bridge deck, therefore, would be below the floor level of any residence located in the building thus not causing any privacy impacts on such residences, which was a matter raised during the on-site evidence by resident objectors.

28 The second matter concerns the proposed limiting envelope for a dwelling on the proposed northern allotment if subdivision is permitted. The depiction of this envelope contained in the photomontage, I am satisfied, for reasons discussed below, is accurate as to the upper and southern limits of what is shown but it is not likely to be accurate about the extent of vegetation able to be retained and thus mask any such building. Therefore, I do not take the extent of the greenery, depicted as masking any northern dwelling which would be erected on the building footprint and within the envelope proposed, into account in the assessment which follows.

29 The assessment which I have made is based, with respect to the northern proposed building footprint and envelope, on the worst possible case; that is, that the totality of the eastern face and portion of the southern face of such a building would be visible from the path from the constructed end of Birrell Street to the park and from within the grassed bowl of the park itself.

30 The park is, as I understand on the final information available to me, in three separate land tenures. The first, which comprises the eastern seaward bulk of the park, is Crown land administered by the council but not owned by it. The second portion, to the west of the Crown land, extends across the remainder of the bowl of Tamarrama Valley to a point beyond the end of the grassed area and a short distance up the creek gully. It borders, on the north, the site and, on the south, the property immediately to the east of the site. The council owns this land freehold. As the shape of the property boundaries are somewhat unusual, a copy of a plan of the tenures of the western end of the park, including the site (the site is yellow highlighted “A” on the plan) appears below.

31 The third element, which is under the control of the council, is the unmade eastern end of Birrell Street. This is the area of Birrell Street marked in the aqua-coloured box above. Although not owned by the council and remaining a public road in title, it is managed by the council as if it were part of the park.

32 The council has prepared a plan of management dealing with all three elements. Although there appears no proper statutory foundation for the council to have done so, the unmade portion of Birrell Street has been incorporated in the plan of management. I do not consider that anything turns on this in these proceedings.

33 The status of the plan of management with respect to the Crown land is that it remains a draft plan subject to its pending approval by the Minister. With respect to the council's freehold land, the plan has been adopted pursuant to the Local Government Act 1993.

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.

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).

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.

40 For these two reasons, I am satisfied that there is no adverse visual impact which would justify refusal. As a consequence there is no unacceptable impact on the significance of the park as a landscape item on the LEP heritage map.

The proposed vehicle and pedestrian access - legal permissibility and proper categorisation

41 In relation to issue (d), Mr T F Robertson SC and Mr G B Newport, appearing for the council, submit that the driveway to be constructed in the unmade section of Birrell Street is not a road but a private driveway for residential purposes. If it is the former then it would only require consent under s 139 of the Roads Act and would include an assessment under Pt 5 of the EP&A Act. If the latter, then it would require consent under Pt 4 of the EP&A Act and, since it is not a road but a private driveway for residential purposes, it would be prohibited under the zoning table for the 6(a) zone.

42 The relevant provisions of the LEP are cl 43 and Sch 4. Clause 43 states:

43 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.

b) The use of existing buildings of the Crown by the Crown

43 Schedule 4 is headed “Excepted Development”. Item 8 of the schedule states:

8. 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.

44 Mr Robertson SC submits that since the uses in the zoning table to cl 10 of the LEP refer to development “for the purpose of” the various categories of uses, then regard must be had to the purpose of the use in its classification. He submits that, in the present case, the purpose of the driveway is to provide vehicular access to a private residential subdivision, and hence the driveway is to be properly categorised as a residential driveway and not as a road and is to be classified as a residential purpose or for residential development. If it is not a road then it does not come under the excepted development under cl 43 and Sch 4. (Reference was made to Chamwell Pty. Ltd v Strathfield Council (2007) 151 LGERA 400.)

45 I am unable to agree. Although the descriptions in the zoning table are said to be “for the purpose of” the listed categories of development, the same words do not appear in either cl 43 or Sch 4.

46 Moreover, Mr Robertson’s reliance on Chamwell is misplaced and is contrary to the judgment of Cripps J in Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202 (on which Mr A E Galasso SC and Mr S J Brockwell, appearing for the applicant, base their argument).

47 In Argyropoulos, there existed a battleaxe block comprised of a residential zone (the access handle) and a light industrial zone (the axe head component). The applicant lodged a development application seeking to use the entire block for the storage of formwork material. Storage of the material was to occur in the light industrial zone and access in the form of a road was to be exercised over the land in the residential zone.

48 According to the Canterbury Planning Scheme Ordinance, the residential zone could be used as a road after consent was obtained from the council. In the light industrial zone consent was required for all purposes except those in which development was prohibited. Industries were prohibited in the residential zone.

49 It was observed that the Canterbury Planning Scheme Ordinance failed to define “road.” Cripps J was of the belief that the scheme envisages road use as a separate use and the use of the access handle as a road does not take on a “light industrial” purpose merely because it serves land zoned as light industrial during the course of its nominate permissible use as a road (at 207). Furthermore, Cripps J held that the council is not compelled by the Ordinance, in its determination of the application “to conclude that if the users of that road are proceeding to or from land zoned and used as light industrial, there is such a nexus between the use of the residential land and the use of the light industry land that the council has no power to grant its consent to the application” (at 208).

50 On the basis of the decision in Argyropoulos, Mr Galasso SC submits that a road use is contemplated by the LEP as a separate use and that the use of the local road reserve for a road, being an exempted use under cl 43 and Sch 4, does not become a prohibited use because the start and/or destination of vehicles passing over the road is residential land. Conversely, the LEP does not require a council, when determining an application for use of land, to conclude that if the users of the road are proceeding to or from land zoned as residential there is such a nexus between the use of the local road reserve and the use of the residential land that the council has no power to grant its consent to the application. I respectfully agree with these submissions. Indeed, the decision in Argyropoulos compels such a conclusion.

51 The proposition that the use of a road is separate and not ancillary to its end use is reinforced in the present case by the fact that the land on which the driveway is to be constructed is legally separate from the residential land and is a road within the meaning of the Roads Act.

52 Argyropoulos has been subsequently followed in TC Punnett and Associates Pty Limited v Warringah Council (2001) 115 LGERA 314; CBD Prestige Property Holdings Pty Limited v Hornsby Shire Council [2006] NSWLEC 629; Peters v Manly Municipal Council (2006) NSWLEC 676; and Currency Corporation Pty Limited v Wyong Shire Council (2006) 155 LGERA 230. It is now settled law and I am not prepared to depart from it.

53 In Currency Corporation work was proposed over adjoining land that the Council deemed prohibited because the traffic access way should be characterised as being for the purpose of the proposed residential flat building. In applying Argyropoulos Biscoe J remarked (at [65]), “[s]imilarly, I am of the opinion that the use of the proposed access way should be characterised by its use as a road.”

54 Argyropoulos has also been applied in Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400, which is relied upon by the council. Mr Galasso SC submits that the factual circumstances of Chamwell distinguish themselves from Argyropoulos and also the present case.

55 The development application in Chamwell was for the demolition of existing buildings and the erection and use of a building as a mixed use development comprising a supermarket and multiple unit housing with a basement car park. An “L” shaped allotment was proposed and was zoned 3(a) Business General under the Strathfield Planning Scheme Ordinance 1969. Lot D was zoned as residential 2(b) and was situated between the two arms of the “L”. The erection of a multi-story residential flat building, four levels of car parking and the provision of other features such as travelators, pedestrian ramps, a pond and passive recreation area, was proposed on lot D. Among other structures, the “L” was to bear a supermarket. The car parking in lot D was to serve the residents of the flat building and the supermarket.

56 The council refused the application on the basis that the parts of the building in lot D were related to the retail development and were, therefore, prohibited in the 2(b) zone. The applicant, relying on Argyropoulos, contended that the parts of the building, namely the basement car parking and associated features, the entry and exit driveways, pedestrian ramps etc, fell within the meaning of “road” and were therefore a nominate permissible purpose in the 2(b) zone.

57 As pointed out by Mr Galasso SC, Preston J expressly distinguished Argyropoulos on its facts, stating (at 409) that “[t]he access handle was constructed and used as a road within the ordinary meaning of that word [and] … was separate to the land on which the light industrial use was carried on”’. The driveway entrance to the basement car parking and other features of lot D however, “are an integral and indivisible part of the building in which the retail development is to be carried out and they are not constructed or used as a road in the ordinary sense” (at [49]). The judgments in Argyropoulos and Chamwell are congruous in their application of the law, although the elaborate nature of the facts in Chamwell point toward a very different outcome. By no means did the latter overrule the former.

58 Preston J characterised the use of the car park, driveways, access ways and other features in Chamwell’s case as being for the purpose of shop, namely a supermarket, which is a prohibited purpose of development in the 2(b) zone.

59 I concur with Mr Galasso SC that the present factual circumstances are very different from those in Chamwell. The latter presented a situation where there were two distinct uses served by the car park and its other features, namely the supermarket and the multi-unit housing. The Court was thus confronted with deciding which of these uses was predominantly served by the car park. In the present case, akin to Argyropoulos, the driveway is the single feature and its only purpose is to serve the abutting land.

60 Moreover, unlike features such as the travelator, pedestrian ramp and pond, an access way is synonymous with the term “road”. A driveway on a legally recognised and gazetted road is simply part of that road.

61 Consequently, Chamwell is factually distinct from the present case and is of no relevance to the circumstances of the present case.

62 It follows that the construction of the driveway does not require development consent. However, in deciding whether to grant consent for the construction of the driveway under s 139 of the Roads Act, the roads authority is also a determining authority under Pt 5 of the EP&A Act. Section 111 of that Act (in Pt 5) requires a determining authority, in its consideration of the proposal (“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. Moreover, s 112 states that the if activity is likely to significantly affect the environment the determining authority must first be furnished with an environmental impact statement in respect of the activity, which it must then examine and consider.

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.

66 As depicted in par [9] above, the proposed driveway is about four metres in width and extending from the end of the constructed section of Birrell Street and curving at a right angle to access the property. It is thus of single lane width. It also slopes downwards from the existing pavement in Birrell Street. There is a real risk that persons driving to the end of Birrell Street would continue down the driveway, to better view the sea and the nature of the surf, notwithstanding the fact that there may be appropriate signs indicating that it is a “no through road”. In that event there is a real likelihood that those persons would reverse along the driveway to get out, notwithstanding the offer of the applicant to provide a turning bay within the subject property. The local residents say that the area at the end of the constructed section of Birrell Street is heavily used by pedestrians who go there to take advantage of the view. Drivers of vehicles reversing uphill along the driveway would not necessarily see people - particularly small children - in the vicinity, so that there are real safety concerns with the design of the present proposal.

67 In response to questions during the hearing, the applicant agreed that it would be appropriate to provide signs at the entrance to the driveway and the steps at the northern edge to indicate that both the driveway and the steps serve only the residences on the applicant’s property.

68 When asked how a person who accidentally drove down this driveway would be able to exit from it without entering the private property (in circumstances where turning on the access way itself was impossible because of its single vehicle width construction), Mr Galasso SC said that the applicant is prepared to accept a condition for a public positive covenant requiring that a turning facility be provided on the applicant’s site for vehicles which inadvertently entered the property.

69 To some extent, which is evident from the cross-sectional drawing of the proposed driveway, there will be limited visibility for vehicles travelling along the driveway. For vehicles exiting the site, up what is a somewhat steep but acceptable gradient, there will be limited visibility of the pedestrians using the footpath to the north across the end of Birrell Street. There will also be limited visibility of any other vehicles which might be seeking to use the driveway but travelling in the opposite direction. For vehicles travelling into the site, around the corner in the driveway, there will be limited visibility of other vehicles which might be seeking to leave the site and there will be limited visibility of any pedestrians who might be using the steps which the applicant proposes to construct to access the site.

70 Mr Galasso SC suggests that the turning facility which could be made available on the site, the subject to the proposed covenant, could not be one which would accommodate all vehicles. I accept that that is necessarily the case. Given that the proposal is legally a public road to the property boundary, this is, in itself, a matter of modest concern.

71 Although the applicant agree to proposals for the signage mentioned above and to a requirement that there be a distinctive difference in the surface treatment of the driveway when compared to the existing surface of Birrell Street (so that there was obviously marked transition in the nature of that to be traversed), I am not satisfied that this design is acceptable.

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.

73 Although in legal theory access to the site can be permitted, this design is sufficiently defective as to warrant its refusal. It is for these reasons that the court declines to exercise the power of the roads authority to grant consent to the construction of the driveway under s 139 of the Roads Act.

74 The remaining aspects of the development, namely the proposal to demolish the existing house and to subdivide the land, are acceptable. Senior counsel for both parties agree that the Court has power to grant consent to those unobjectionable parts of the development and to withhold consent for the driveway.

75 Finally, I note that the present proposal for the driveway differs from that which was before Biscoe J. The design of the driveway then was a dual carriageway which presented as a true extension of the public road, with a second driveway at right angles providing access to the subject property in the same way that driveway access is provided to other properties fronting Birrell Street. It seems to me that this was a much more satisfactory proposal from a safety aspect than the present proposal.

Conclusion

76 The Court grants consent to the demolition of the existing house at No. 362 Birrell Street, Tamarama and for the subdivision of that property with two allotments, subject to satisfactory conditions. The Court refuses consent under s 139 of the Roads Act for the construction of the driveway within the unmade section of Birrell Street.

77 Finally, I acknowledge the assistance of Commissioner Moore, who heard the case with me.

Orders

78 The Court makes the following formal orders:

(1) The appeal is allowed in part.

(2) Development consent is granted to the demolition of the existing dwelling house at No. 362 Birrell Street, Tamarama, being lot A in deposited plan 37266 and for subdivision of that property in accordance with plan of subdivision prepared by Rygate and Company dated 2 September 2005, subject to conditions.

(3) The parties are directed to file draft conditions of consent to give effect to this judgment within seven days, following which the Court’s formal orders will be made.

(4) The exhibits may be returned.

I hereby certify that the preceding 78 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate

Dated: 3 March 2008
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