HKArchidraft v Randwick City Council

[2019] NSWLEC 1009

Land and Environment Court

New South Wales

Medium Neutral Citation:	HKArchidraft v Randwick City Council [2019] NSWLEC 1009
Hearing dates:	19 December 2018
Date of orders:	18 January 2019
Decision date:	18 January 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The orders of the Court are: (1) The Applicant is granted leave to amend the development application and rely on the amended plans referred to in Annexure ‘A’ to this judgment; (2) The appeal is dismissed; (3) Development application DA 598/2016, as amended, for the demolition of existing structures and the construction of a boarding house with basement car parking at 14 Bruce Street Kingsford, is determined by refusal; (4) The exhibits are returned, except Exhibits A, B, C and 1.
Catchwords:	DEVELOPMENT APPLICATION: Boarding house; traffic and parking; whether the character of the proposed development is compatible with the local area; whether sight lines for vehicles exiting the site are acceptable.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environment Plan 2012 Road Rules 2014 State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited:	Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Texts Cited:	Randwick Development Control Plan 2013 RMS Guide to Traffic Generating Development 2002
Category:	Principal judgment
Parties:	HKArchidraft (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: M Staunton (Applicant)   Solicitors: Jaku Legal (Applicant) A Seton, Marsdens Law Group (Respondent)
File Number(s):	2017/222380
Publication restriction:	No

Judgment

1. COMMISSIONER: HKArchidraft (the Applicant) has appealed the deemed refusal of the Randwick City Council (the Respondent) of its development application DA 598/2016 for the demolition of existing structures and the construction of a part 2/part 3 storey boarding house at 14 Bruce Street, Kingsford (the Subject Site).

2. The proposed development includes two building forms, and comprises:

1. 6 single rooms;

2. 12 double rooms, including a manager’s room;

3. a communal living area and laundry;

4. basement car parking for 8 cars, 4 motorbikes, and 4 bicycles; and

5. one accessible space, at grade, located at the rear of the Subject Site.

3. The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act).

Background

4. The Subject Site is located on the western side of Bruce Street, Kingsford, and extends through to Day Lane (on occasion referred to in testimony as Mary Hamer Lane) at its rear. St Spyridon’s Church and St Spyridon’s Public School are located close by the rear of the Subject Site, and to its south-east.

5. The Subject Site is zoned R3 Medium Density Residential under Randwick Local Environment Plan 2012 (RLEP) (see below at [12]). Boarding houses are a permissible form of development within that zone.

6. At the commencement of the hearing, the Applicant sought leave to rely on further amended plans. There was no objection to this application from the Respondent, and leave was granted.

7. Prior to the commencement of the hearing an inspection of the Subject Site was completed. No objectors sought to make representations to the Court during the on-site view.

Statutory Considerations

Environmental Planning and Assessment Act 1979

8. The objects of the of the EP&A Act are as follows:

(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,

(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,

(c) to promote the orderly and economic use and development of land,

(d) to promote the delivery and maintenance of affordable housing,

(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,

(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),

(g) to promote good design and amenity of the built environment,

(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,

(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,

(j) to provide increased opportunity for community participation in environmental planning and assessment.

9. Section 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

10. Section 4.15(3A) of the EP&A Act further provides that:

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

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

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

(c) may consider those provisions only in connection with the assessment of that development application.

...

State Environmental Planning Policy (Affordable Rental Housing) 2009

11. The application is subject to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009, and the following provisions relating to boarding houses within SEPP ARH are of particular relevance in this appeal.

1. Clause 29, which provides:

Standards that cannot be used to refuse consent:

(1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than:

(a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or

(b) if the development is on land within a zone in which no residential accommodation is permitted—the existing maximum floor space ratio for any form of development permitted on the land, or

(c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register—the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus:

(i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or

(ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1.

(2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds:

(a) building height, if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land,

(b) landscaped area, if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located,

(c) solar access, where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter,

(d) private open space, if at least the following private open space areas are provided (other than the front setback area):

(i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers,

(ii) if accommodation is provided on site for a boarding house manager—one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation,

(e) parking, if:

(i) in the case of development carried out by or on behalf of a social housing provider in an accessible area—at least 0.2 parking spaces are provided for each boarding room, and

(ii) in the case of development carried out by or on behalf of a social housing provider not in an accessible area—at least 0.4 parking spaces are provided for each boarding room, and

(iia) in the case of development not carried out by or on behalf of a social housing provider—at least 0.5 parking spaces are provided for each boarding room, and

(iii) in the case of any development—not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site,

(f) accommodation size, if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least:

(i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or

(ii) 16 square metres in any other case.

(3) A boarding house may have private kitchen or bathroom facilities in each boarding room but is not required to have those facilities in any boarding room.

(4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2).

(5) In this clause:

social housing provider does not include a registered community housing provider unless the registered community housing provider is a registered entity within the meaning of the Australian Charities and Not-for-profits Commission Act 2012 of the Commonwealth.

2. Clause 30, which provides:

Standards for boarding houses

(1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following:

(a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided,

(b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres,

(c) no boarding room will be occupied by more than 2 adult lodgers,

(d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger,

(e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager,

(f) (Repealed)

(g) if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use,

(h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms.

(2) Subclause (1) does not apply to development for the purposes of minor alterations or additions to an existing boarding house.

3. Clause 30A, which concerns the character of the local area and which provides:

A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

Randwick Local Environment Plan 2012

12. Development on the Subject Site is subject to the provisions of Randwick Local Environmental Plan 2012 (RLEP), and under which the Subject Site is zoned R3 Medium Density Residential.

13. The objectives of the R3 zone are:

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

• To provide a variety of housing types within a medium density residential environment.

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

• To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.

• To protect the amenity of residents.

• To encourage housing affordability.

• To enable small-scale business uses in existing commercial buildings.

14. Within this R3 zone, a boarding house, such as is proposed by the Applicant, is a permissible development.

15. The following further provisions of RLEP are also of relevance in this appeal:

1. Clause 4.3 concerning height of buildings, under which the Subject Site is subject to a control of 9.5m, with which the proposed development complies;

2. Clause 4.4 concerning the floor space ratio (FSR) controls applicable within the Randwick local government area, and under which the Subject Site is subject to a control of 0.75:1. However, because the proposed development is for a boarding house, which is permissible on land zoned R3, and as the FSR control applicable to the Subject Site is less than 2.5:1, the proposed development benefits from the 0.5:1 bonus FSR provision of cl 29(1)(c)(i) of SEPP ARH. Consequently, the FSR control applicable to the proposed development is 1.25:1. The proposed development’s FSR is 0.91:1, which is compliant with this control.

Randwick Development Control Plan 2013

16. Development on the Subject Site is subject to the provisions of Randwick Development Control Plan 2013 (RDCP), the purpose of which is to provide:

“Guidance for development applications (DAs) to supplement the provisions of the Randwick comprehensive Local Environment Plan (RLEP).”

17. Part B of RDCP provides General Controls to guide development within the Randwick local government area to achieve the following objectives:

“• To ensure that high quality urban design is a fundamental consideration for all development

• To identify key components of urban design to be considered and addressed in development proposals.”

18. Part C of RDCP provides controls for all types of residential accommodation and includes guidance on site planning, building envelopes, building design, setbacks, open space, landscaped area, amenity, car parking and ancillary elements for low density and medium density residential development.

19. The following provisions of RDCP are of particular relevance in this appeal:

1. Section B7, which provides guidance in relation to transport, traffic, parking and access, and the objectives of which are:

“• To promote sustainable transport options for development, particularly along transport corridors, in commercial centres and strategic/key sites.

• To manage the provision of car parking within the broader transport network.

• To support integrated transport and land use options which can demonstrate shared and effective car parking provision with car share facilities, motorbikes/scooters, bikes and links to public transport.

• To ensure car parking facilities, service and delivery areas and access are designed to enhance streetscape character and protect pedestrian amenity and safety.”

1. Sub-section 3.1 of Section B7 provides that development applications requiring car parking need to consider the guidance on this subject contained within the following documents:

1. AS 2890.1 Off-street car parking;

2. AS 2890.6 Off-street parking for people with a disability;

3. RMS Guide to Traffic Generating Development 2002;

2. Sub-section 3.2 provides vehicle parking rates for various development types, including for boarding houses, and notes that SEPP ARH contains controls for boarding houses, including parking requirements, which override the relevant provisions of RDCP.

3. Sub-section 3.4 of Chapter B7 which provides guidance on parking requirements for accessible spaces, and which requires that all development must provide accessible car parking for people with a disability as set out in the Building Codes of Australia (BCA) and the relevant (and most current) Australian Standard (AS). Dimensions for car spaces, including headroom and access requirements for people with a disability, are set out in AS 2890.6;

4. Sub-section 3.6 which provides guidance in relation to car park location and design, streetscape and heritage, and which provides:

1. that the Australian Standards and RMS Guidelines (see above at [(a)]), provide the base requirements for parking location and design.

2. that car park location and design needs to be carefully considered to ensure pedestrian safety, clear sight lines and to maintain streetscape character and amenity;

3. a control requiring that developments ensure pedestrian and cycling safety is maintained or improved.

5. Sub-section 3.7 of Section B7 concerning parking layout, configuration & dimensions, and which provides:

1. that the specific requirements for parking layout and dimensions (for car spaces, aisles, disabled, grades etc.) are provided in the relevant Australian Standard and the RMS Guidelines. All development must comply with these standards as a minimum level of provision to ensure car parking facilities are efficient, adequate and safe; and

2. a control requiring that in all development, except dwelling houses, semi-detached dwellings or attached dwellings, all vehicles must enter and exit the parking provided in a forward direction.

2. Section B9 in relation to Management Plans, and which requires that any management plan produced for a boarding house should address the matters established under this section of RDCP;

3. Section C2 in relation to Medium Density Residential development, and in relation to which the Parties advised, and I am satisfied, that the proposed development is consistent with the requirements of Section C2 of RDCP, including the provisions of sub-section 4.4 of Section C2 concerning external wall heights and ceiling heights.

4. Section C4 concerning boarding houses, and which provides controls to supplement the provisions of SEPP ARH with additional guidelines and operational requirements to ensure that boarding house proposals deliver quality, yet affordable, building design, effective on-going management and suitable living environment for both occupants and neighbours.

Contentions

20. At the commencement of the hearing, the Parties confirmed that, in addition to the proposed development’s compliance with the applicable height of building and FSR controls under RLEP, it also complied with the provisions of cl 29(2) of SEPP ARH in relation to landscape area, solar access, private open space, parking, and accommodation size. They also submitted that none of these matters form a basis for refusal of the Applicant’s development proposal.

21. The Parties also agreed that the proposed development was compliant with the standards for boarding houses set out in cl 30(1) of SEPP ARH, which are preconditions in relation to which I must be satisfied before consent can be granted to the proposed development.

20. The Parties further agreed that, on the basis of advice from their planning experts (see below at [28]), the following additional issues, that had been in contention between them prior to the hearing, had been resolved:

1. the potential amenity (privacy) impacts of the proposed development on adjoining residences at 12 and 16A Bruce Street, in relation to overlooking from rooms and the proposed elevated central courtyard;

2. the configuration and functionality of the proposed private open space associated with the manager’s residence that is located in the front setback of the proposed development;

3. the security and safety of the entry to the rear building form of the boarding house closest to Day Lane;

4. the content of the proposed plan of management for the boarding house, which they advised had been resolved through the proposed inclusion of a deferred commencement condition within the agreed draft conditions of consent.

23. As noted above at [11(3)], under the provisions of cl 30A of SEPP ARH, a consent authority must not consent to boarding house development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. This is a jurisdictional matter under cl 30A of the SEPP ARH in relation to which I must be satisfied, before the power to grant consent can be enlivened.

24. During their opening submissions, the Parties said that they agreed that the presentation of the proposed development to Bruce Street was compatible with the character of the local area.

25. However, the Parties also submitted that they did not agree as to whether the character of proposed development at its rear presentation to Day Lane was compatible with the character of the local area.

26. In addition to the matter of compatibility with local character, the Parties confirmed that there remained two further contentions concerning traffic and parking that required resolution during the hearing, and that these concerned:

1. the proposed accessible parking space at rear of the Subject Site on Day Lane and the proposal that entry to that space would require a reverse parking manoeuvre;

2. the acceptability of sight lines available to drivers of for vehicles departing parking on the Subject Site from the:

1. accessible parking space at the rear; and

2. basement car parking area.

27. Consequently, the three questions that required resolution in this appeal were as follows:

1. Is the character of the proposed development at its rear presentation to Day Lane compatible with the character of the local area?

2. Is it acceptable that the accessible parking space on Day Lane would be accessed by a reversing parking manoeuvre?

3. Are the sight lines available to drivers of vehicles departing the Subject Site, either from the accessible car space or from the basement car park, acceptable?

Is the character of the proposed development at its rear presentation to Day Lane compatible with the character of the local area?

28. The compatibility of the character of the proposed development with the character of the local area was the subject of evidence within several joint expert reports, tendered as evidence, and oral testimony provided during the hearing. This evidence was provided by the expert planners, Mr Kerry Nash (for the Applicant) and Mr Michael Brewer (for the Respondent), along with urban design expert Mr Rohan Dickson (for the Applicant).

29. Mr Brewer said that, in his opinion, the form of the proposed development as it presented to Day Lane was much larger, and higher, than other built forms along that laneway, which he said were mostly single storey garages that provided a subservient form to other structures on the narrow allotments between Bruce Street and Day Lane. Mr Brewer said that the height of the Applicant’s proposed building at its rear presentation was determined in response to the need to provide an entry to the basement car park from the laneway.

30. In his testimony Mr Brewer acknowledged that the area surrounding the Subject Site was in transition to a future built form that was different to that currently exhibited in the area. He said that the bulk of the Applicant’s proposed development, as represented in the further amended plans, was smaller than that originally proposed.

31. During his testimony, Mr Nash confirmed his opinion conveyed within the joint expert report prepared with Mr Brewer and Mr Dickson, that:

“…the building fronting Mary Hamer Lane will present as a 2-storey building with a room-in-the-roof element set well back from the laneway alignment. …..The introduction of windows balconies on the first floor level will provide a high level of passive surveillance of Mary Hamer Lane and will be consistent in form and scale to the elevated 2-storey medium, density housing at 15/15A-15D Borrodale Road.“

32. Mr Nash and Mr Dickson were of the opinion that the proposed skillion roof form, which had been reduced in height under the further amended plans for which leave was granted, would reduce the apparent bulk of the building as it presented to Day Lane/’Mary Hamer Lane’, and would be compatible with the character of the area.

33. Mr Dickson said that he agreed that the area was in transition and that, in his opinion, the design was consistent with the desired future character of the area. He said that the proposed development retained the pattern of buildings in the area through the retention of a courtyard space between the two building forms. He concluded that it was likely that other buildings at the rear of the lots which backed onto Day Lane would be redeveloped into a 2-storey form.

34. Mr Nash said that the design of the proposed development would be compatible with the desired future character of the area given that the design of new buildings in the locality of the Subject Site would be influenced by R3 Medium Density Residential zoning that now applied to the Subject Site, including the 9.5m building height control that applied within that zone.

35. Mr Staunton, for the Applicant, noted that cl 30A of SEPP ARH does not specify whether the character of the local area referred to in that clause is the current character or the desired future character of that area.

36. He also drew the Court’s attention to the decision in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (Project Venture) , in which former Senior Commissioner Roseth had noted (at [23]) that:

“It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them.”

37. Having considered the testimony of the experts, and the submissions of the Parties, I prefer the evidence of Mr Nash and Mr Dickson on the question of the compatibility of the character of the proposed development at its rear presentation with the character of the local area for the reasons provided by them at [32] to [34].

38. I accept, as acknowledged by all experts, including Mr Brewer, that the area around the Subject Site is in transition, and that the future character of the area is likely to reflect the zoning, height and FSR controls now applicable to the Subject Site.

39. In this regard, I have concluded that the presentation of a 2-storey built form to Day Lane, that is compliant with the height control for the Subject Site, and which has been proposed by the Applicant in its further amended plans, is an outcome that is compatible with the character of the local area, particularly in the area around the Subject Site which is an area in transition.

40. I am satisfied that this conclusion is consistent with the judgment of the former Senior Commissioner in Project Venture, in which he noted that ‘there are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing’.

Is it acceptable that the accessible parking space on Day Lane would be accessed by a reversing parking manoeuvre?

41. During the hearing, evidence on traffic and parking related issues was provided by expert traffic engineers Mr Paul Corbett (for the Respondent) and Mr Lyle Marshal (for the Applicant). These experts had also produced two joint expert reports that were both tendered as evidence during the hearing.

42. As noted above at [20], the Parties had agreed, and I am satisfied, that based on the testimony of their expert traffic engineers, the number of parking spaces provided by the proposed development, and their configuration, fulfil the provisions of RDCP with respect to parking requirements, including requirements with respect to accessible parking.

43. The Applicant has proposed that one accessible parking space, located at the rear of the proposed development on Day Lane and at ground level, would be provided for use by boarding house residents.

44. As identified above at [19(1)(e)(ii)], RDCP requires that in all development except dwelling houses, semi-detached dwellings or attached dwellings, all vehicles must enter and exit in a forward direction.

45. A vehicle seeking to utilise the accessible parking space at the rear of the proposed development would be unable to enter and exit the space in a forward direction, as required under AS2980.1 and RDCP, but must either enter in a forward direction or exit in a forward direction.

46. For reasons of safety, the Applicant has proposed that vehicles using the accessible space should reverse into that space from Day Lane so as to provide for the exit of a vehicle from that space in a forward direction.

47. In their joint expert reports, Mr Corbett and Mr Marshall had differed in their opinion as to the acceptability of the proposal that the accessible parking space be accessed via a reversing manoeuvre rom Day Lane.

48. Mr Corbett was of the opinion that the proposed layout of the accessible parking space was unsafe because drivers would not be able to enter and exit the accessible car space in a forward direction, as required under AS2890.1 and RDCP. He said that the safety risks associated with this layout were exacerbated by the fact that a driver arriving at the site would need firstly to manoeuvre into the middle of the Day Lane/Doran Street intersection before then reversing into the accessible parking space. He said that, in his opinion, this reversing manoeuvre would significantly increase the risk of either a vehicle to vehicle, or a vehicle and pedestrian, conflict arising due to:

1. the multiplicity of potential vehicle and pedestrian approach directions possible at that point in the road network, and

2. the lack of footpath along that portion of Day Lane.

49. Mr Marshall disagreed with Mr Corbett and said that, in his opinion, it was safer for vehicles to reverse into the accessible car space so as to require vehicles so parked to exit the Subject Site in a forward direction.

50. In support of this proposition, Mr Marshall noted that reverse manoeuvers were permitted under the Road Rules 2014, provided the driver could do so safely, and provided that the reversing manoeuvre was no further than was reasonable in the circumstances of the manoeuvre.

51. Mr Marshall added that the reversing of vehicles into 90-degree parking spaces was already required by Randwick City Council in both Bruce Street and Day Lane, and that that all garages in Day Lane required a vehicle either to enter in a forward direction in and then reverse out, or to reverse in and then exit in a forward direction.

52. Mr Marshall proposed that the accessible parking space should be only be accessed by a reverse entry, and that all exiting vehicles should be required to left turn into the lane. He proposed that this requirement be included within the Applicant’s proposed plan of management for the boarding house.

53. Mr Staunton, for the Applicant, submitted that if the development were for a dwelling house, rather than a boarding house, there would be no restriction on whether a vehicle exited the parking space in a forward or reverse manner, and consequently the proposed arrangement was no different to that which would be uncontentious and permissible for a dwelling house.

54. Mr Corbett, in response to a question from the Applicant, confirmed that this would indeed be the case.

55. Having considered the testimony of the expert traffic engineers, including data on the use of the area by cars and pedestrians at peak periods, and having viewed the rear of the Subject Site, including that area of Day Lane (also referred to as Mary Hamer Lane) and Doran Street within which the proposed manoeuvre would be required, I agree with the Applicant that, on a merits assessment, the reversing manoeuvre, as proposed, is acceptable in this location, and for the single accessible car space.

56. I note that, as identified by the Applicant, and as confirmed by Mr Corbett, this manoeuvre would be compliant with the relevant Australian Standard and the provisions of RDCP for a proposed dwelling house constructed in the same location. I also note that most residences along Day Lane currently have garages that require the same entry exit manoeuvre to be made each time a vehicle utilises these garages.

Are the sight lines for vehicles departing the property from the accessible car space, and from the basement car park, acceptable?

57. Mr Marshall had provided, within the joint report of the traffic engineers, several swept path analyses that he said confirmed that it was possible for a so-called B99 vehicle to enter and exit the basement car park in a forward direction, and during the hearing Mr Corbett confirmed that he was satisfied in relation to this assessment.

58. Notwithstanding this, the Respondent contended, and the Applicant accepted, that the configuration of the proposed development at its rear, in conjunction with the orientation and width of Day Lane, did not permit compliance with Australian Standard AS2980.1 in relation to the recommended sight line distances that should be available to drivers using the driveways to exit the Subject Site.

59. Under AS2890.1, the stopping sight distances (SSDs) required for roads with 40km/h and 50km/h speed limits are 35m and 45m, respectively. The expert traffic engineers had agreed that the sight lines available from the proposed development would be:

1. for a driver exiting the proposed accessible car space: 5m (approx.) to the north west, and 13.5m to the south east;

2. for a driver exiting the proposed basement car park: 7.5m to the north west, and 8m to the south east.

60. The Applicant has proposed that a B600 convex mirror (or equivalent) be installed on the light pole located immediately south of the Subject Site’s proposed driveway entrance on Day Lane, and adjacent to its rear boundary with 16A Bruce Street, so as to provide improved sight distances to pedestrians and vehicles utilising Day Lane.

61. The Applicant submitted that this mirror could be utilised by all drivers exiting the Subject Site, whether from the proposed accessible parking space (identified on the further amended plans as car space no.9) or the basement car park, to improve their view of any approaching vehicles or pedestrians from the north-west direction on Day Lane.

62. The expert traffic engineers held differing opinions as to the capacity of the proposed B600 convex mirror to assist drivers exiting the Subject Site.

63. Mr Corbett said that, in his opinion, the proposed mirror would be ineffective in improving sight distances for drivers exiting the Subject Site. Mr Marshall said that in his opinion, the provision of a B600 safety mirror would provide adequate visibility of pedestrians, cyclists and vehicles approaching the Subject Site from a north-west direction.

64. In response to questions during the hearing, neither Mr Corbett nor Mr Marshall could provide any analytical basis to support their differing opinions as to the utility and effectiveness of the proposed convex mirror installation.

65. While the Applicant accepted that the proposed development was unable to meet the requirements of AS2890.1 with respect to the minimum stopping sight distances, it nevertheless submitted that:

1. no dwellings that had a garage on Day Lane could satisfy the sight lines requirements applicable to the proposed development under AS2890.1;

2. notwithstanding the limitation identified above at [(1)], all vehicles exiting from properties backing onto Day Lane must make the same exit manoeuvre as would be required of a vehicle exiting the proposed development;

3. all vehicles exiting the Subject Site would exit in a forward direction, which is a safer manoeuvre than reversing into the lane;

4. some vehicles currently exiting garages onto Day Lane were likely to do so utilising a reversing manoeuvre;

5. data presented by Mr Marshall confirmed that there were low pedestrian and vehicular traffic movements along Day Lane, in both the morning and afternoon peak periods, suggesting that the risks associated with potential adverse interactions between pedestrians/vehicles using the lane, and vehicles exiting the proposed development, were likely to be low;

6. the Applicant’s proposed B600 convex safety mirror would provide improved sight lines to drivers of exiting vehicles and assist them to see pedestrian or vehicular traffic in Day Lane as they exited the proposed development.

7. the proposed plan of management for the boarding house would:

1. contain directions for use of on-site parking, whether in the basement or at grade in the accessible space; and

2. confirm that all exiting vehicles should take care to give way to any pedestrian or vehicular traffic using the lane prior to exiting the site.

66. Having considered the above points, and recognising that both Parties agree that the proposed development cannot meet the requirements of the Australian Standard AS2890.1 concerning minimum SSDs for vehicles exiting the proposed development, the question before me comes down to whether I am satisfied that the Applicant’s proposal for a B600 convex mirror is sufficient to ameliorate the risks of potential adverse interactions between vehicles exiting the Subject Site and pedestrians, bicyclists and other traffic moving along Day Lane and Doran Street.

67. As noted above at [64], neither expert traffic engineer could provide to the Court an analytical basis in support of their differing opinions as to the effectiveness of the proposed B600 convex mirror to mitigate the non-compliance of the proposed development with the requirements of Australian Standard AS2890.1 concerning minimum SSDs for vehicles exiting the proposed boarding house.

68. The Applicant said that the risk of adverse interactions with pedestrians and vehicles using Day Lane was low given the low numbers of pedestrians and other movements in the area, and that the mirror would assist to improve sight lines for exiting drivers.

69. However, the rear of the Subject Site is directly opposite a school, and there is clear evidence that Day Lane and Doran Street are used by children and adults on a daily basis during peak periods. In my assessment, this use is likely to be associated, primarily, with the movement of students and parents to and from the school.

70. Given, the proximity of the school to the Subject Site, the movement of children with adults through the area in peak periods, and the narrow width of Day Lane, it is my view that, in order to approve the Applicant’s development application, I should be satisfied, on the basis of evidence, or consistent expert testimony, that the Applicant’s proposal for mitigating the acknowledged, and in my assessment, significant non-compliance with the Australian Standard for SSDs for vehicles exiting the Subject Site, would be effective.

66. Neither expert traffic engineer was able to provide such evidence. In addition, their expert opinions were not consistent.

67. As a consequence, I cannot be satisfied that the Applicant’s proposal for use of a B600 convex mirror would adequately mitigate the risks associated with, what I consider to be, a significant non-compliance of the proposed development with recommended SSDs under Australian Standard AS2890.1.

68. For this reason, I have decided that I cannot approve the Applicant’s development application for construction of a boarding house with basement car parking at Bruce Street, Kingsford.

Conclusions

74. Having considered the submissions of the Parties, and the evidence of the expert planners and traffic engineers, I am satisfied that:

1. the proposed development meets the provisions of cl 29(1) of SEPP ARH;

2. the proposed development fulfils the requirements of cl 30(2) of SEPP ARH;

3. the character of the proposed development, at its front presentation to Bruce Street, and its rear presentation to Day Lane, is compatible with the character of the local area, and so the requirements of cl 30A of SEPP ARH are met;

4. the Applicant’s proposal that drivers reverse their vehicles into the accessible car park space at the rear of the proposed development is acceptable;

5. the Applicant’s proposed use of a B600 convex mirror to mitigate the risks associated with proposed development’s non-compliance with the recommended SSDs under AS2890.1 is not acceptable, given the proximity of the proposed development to St Spyridon’s Public School and the probable use of Day Lane and Doran St by pedestrians and vehicles traveling to and from the school.

75. I have, therefore, concluded that:

1. the proposed development is not in the public interest;

2. the Applicant’s development application DA 598/2016 for the demolition of existing structures and the construction of a part 2/part 3 storey boarding house at 14 Bruce Street, Kingsford cannot be approved.

Orders

76. The orders of the Court are:

1. The Applicant is granted leave to amend the development application and rely on the amended plans referred to in Annexure ‘A’ to this judgment;

2. The appeal is dismissed;

3. Development application DA 598/2016, as amended, for the demolition of existing structures and the construction of a boarding house with basement car parking at 14 Bruce Street Kingsford, is determined by refusal;

4. The exhibits are returned, except Exhibits A, B, C and 1.

……………………….

Michael Chilcott

Commissioner of the Court

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Decision last updated: 18 January 2019