Huntington and MacGillivray v Hurstville CC and Ors [No 3] [2005] Nswlec 219

[2005] NSWLEC 219

Land and Environment Court

of New South Wales

CITATION:

Huntington & MacGillivray v Hurstville CC & Ors [No 3] [2005] NSWLEC 219 [2005] NSWLEC 219

PARTIES:

APPLICANT
Huntington & MacGillivray

FIRST RESPONDENT
Hurstville City Council

SECOND RESPONDENT
David and Rosaline Kutcher

FILE NUMBER(S):

10873 of 2004

CORAM:

Brown C

KEY ISSUES:

Development Application :- Consent Orders - construction of a mixed residential commercial development - acces over existing Right of Way to development - findings on merits

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hurstville Local Environmental Plan 1994

CASES CITED:

Huntington & MacGillivray v Hurstville CC & Ors [2004] NSWLEC 694;
Huntington & MacGillivray v Hurstville CC & Ors [No 2] [2005] NSWLEC 155

DATES OF HEARING:

5/10/2004, 23/06/2005

EX TEMPORE JUDGMENT DATE:

06/23/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Newport, barrister

FIRST RESPONDENT
Ms V. McGrath, solicitor
Mr P Rigg, solicitor
SOLICITORS
Deacons

SECOND RESPONDENT
Mr N. Fraser, barrister
Mr D Kutcher.

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

23 June 2005

10873 of 2004 Huntington & MacGillivray v Hurstville City Council and Ors [No 3]

JUDGMENT

1 This matter comes before the Court for Consent Orders in relation to DA 20030567 for the demolition of the existing buildings and the erection of a mixed residential/commercial development at No. 35-41A Penshurst Street, Penshurst.

2 The report to the council by their officers identifies compliance with the requirements in the Hurstville LEP 1994, DCP 2, DCP 18 and DCP 19 and acceptable in design in relation to SEPP 65.

3 The Consent Orders were originally heard on 5 October 2004, but were adjourned because of a number of points of law raised over the use of a Right of Way to gain access to the proposed development.

4 The points of law were dealt with on two occasions by Pain J (Huntington & MacGillivray v Hurstville City Council and Ors [2004] NSWLEC 694 and Huntington & MacGillivray v Hurstville City Council and Ors [No 2] [2005] NSWLEC 155). Her Honour ultimately found that the merit issues could be considered as a preliminary matter. In the event that the consideration of the merit issues supported the approval of the development application then the matter should be adjourned. In separate proceedings, a judge of the Court could then consider the granting of an easement pursuant to s 40 of the Land and Environment Court Act 1979. The details of the points of law are set out in some detail in Her Honour’s judgments.

5 In accordance with the Court’s Practice Direction - Consent Orders, those people who objected to a development application may seek leave to be heard in the Court’s consideration of the Consent Orders. In this regard, Mr Rigg, the council’s advocate, advised the Court that the necessary objectors were advised of the hearing by letter on 17 June 2005. A further letter was hand delivered on the day before the hearing advising that the hearing was to take place in Court rather than on-site as indicated in the previous letter. Mr Rigg indicated to the Court that he had not received any indication from any of the Consent Orders, although he tendered five further submissions.

6 Mr and Mrs Kutcher were made parties to the proceedings on 1 October 2004. They are joint owners of No. 33A Penshurst Road. This property adjoins the development site and is burdened by a 3.05 m wide Right of Way that is to form part of the access for the proposed development.

7 The principal issue raised by Mr and Mrs Kutcher was the impact on their property by the additional vehicles that are likely to use the Right of Way to enter and leave the proposed development.

8 Expert evidence from Mr Craig McLaren, a traffic engineer, was provided by the applicant and supported by the council. Expert evidence was provided by Mr John Hewitt, a traffic consultant, on behalf of Mr and Mrs Kutcher.

9 They conferred prior to the hearing and produced a joint statement that identified one area of disagreement. There was no dispute that the 51 spaces provided by the development satisfy the requirement in DCP 2. The area of disagreement was whether the design of the Right of Way is appropriate considering the likely future traffic from the proposed development. Both relied on Australian Standard AS 2890.1 - 2004 for their differing conclusions. Put simply, Mr McLaren maintained that the existing 3.05 m wide access way was acceptable whereas Mr Hewitt maintained that a 6 m wide access way was required.

10 Australian Standard AS 2890.1 - 2004 addresses the question of aisle width (Table 3.2) based a consideration of the number of car parking spaces requiring access (Table 3.1) and the type of land use (Table 1.1). Mr Hewitt adopts a rate based on the total commercial use of the site for his assessment. The land use is described in Table 1.1 as “short-term high turnover parking at shopping centres”. Using the 25 to 100 car parking space range in Table 3.1, a 6 m aisle width is required.

11 Mr McLaren breaks the car parking down into residential and commercial components in line with the proposed development and using DCP 2, he allocates 20 spaces for commercial use and 31 spaces for residential use. Using Tables 3.1, 3.2 and 3.3, an aisle width ranging from 3 m to 5.5 m is required. When considered with other factors such as the differing peak times of commercial and residential development Mr McLaren concludes that the 3.05 m wide aisle is acceptable. He also suggests 3 additional conditions that relate to the provision of a 6 m wide passing bay at Victoria Avenue, a 10 km per hour speed restriction and the installation of convex safety mirrors. The council’s engineering staff supported his conclusions.

12 In balancing the differing views of Mr Hewitt and Mr McLaren I prefer the conclusions of Mr McLaren as they more closely reflect the likely traffic implications of the two different land uses within the proposed development.

13 I accept that the 3.05 m width for its limited length would adequately accommodate the likely future traffic generated by the proposed development. Even though Mr Kutcher raised some considerable concerns over safety, I am satisfied that if reasonable care is taken by drivers using the proposed development that it will not impose any unacceptable risk to those drivers and the existing developments along the right of way.

14 Mr Kutcher raised additional concerns over loss of sunlight, water run-off, access during construction and future design of the access way.

15 The matters of solar access and water run-off on to Mr Kutcher’s property were not the subject of any specific evidence however, I note the issue of solar access was addressed by the council in their assessment and was not seen as a matter of concern. From the council report I understand the issue to relate to internal solar access of the proposed development and not necessarily on to Mr Kutcher’s property.

16 The question of water run-off between Mr Kutcher’s building and the proposed development is a design matter that is best addressed at the Construction Certificate stage where more details of the design will be available.

17 Construction access is the subject of a condition of approval and the design of the access way will likely flow from the future s 40 proceedings.

18 In my assessment, and putting aside the question that will need to be addressed as part of the s 40 proceedings, there are no planning reasons why the development should not proceed subject to the council’s draft conditions in Exhibit 8 and the additional conditions recommended by Mr McLaren in Exhibit D. These are conveniently attached to this judgement as Attachment 1 but do not constitute a development consent.

19 In considering the issues raised or the matters raised by Pain J the proceedings are now adjourned. The exhibits are retained if needed for ant future proceedings.

20 At the request of the Applicant and First Respondent, costs are reserved.

_______________________

G T Brown

Commissioner of the Court

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