Janalf Enterprises Pty Ltd v Baulkham Hills Shire Council

[2007] NSWLEC 160

Land and Environment Court

of New South Wales

CITATION:

Janalf Enterprises Pty Ltd v Baulkham Hills Shire Council [2007] NSWLEC 160

PARTIES:

APPLICANT
Janalf Enterprises Pty Ltd

RESPONDENT
Baulkham Hills Shire Council

FILE NUMBER(S):

11263 of 2004

CORAM:

Hussey C

KEY ISSUES:

s 96 Application :- Access driveway/safety, landscaping

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Baulkham Hills Local Environmental Plan 2005

DATES OF HEARING:

21/03/2007

EX TEMPORE JUDGMENT DATE:

21 March 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. Mckee, solicitor
of Mckees Legal Solutions

RESPONDENT
Mr M. Pearce, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

21 March 2007

11263 of 2004 Janalf Enterprises Pty Ltd v Baulkham Hills Shire Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

Background.

1 This appeal was lodged against council's deemed refusal of a s 96 Modification to delete conditions of consent relating to traffic issues, imposed by the Court on a development consent for a childcare centre at No 18 Bannerman Road, Kenthurst.

2 The particular condition sought to be deleted is as follows:

2. Existing Vehicular Crossing Removal

The removal of the existing driveway & vehicular crossing on Bannerman Road to ensure the enclosure of the current access point. Such work shall include the restoration of the pavement surface on Bannerman Road and backfilling, topsoiling & turfing of the current driveway and crossing area.

3 Also, the deletion of the requirement in Condition 1 that speed humps be constructed along the new driveway.

4 Insofar as this development consent was granted by the Court, the council identified the following issues for the s 96 Modification appeal:

• traffic and safety,
• streetscape and landscaping,
• public interest and objections.

Planning Controls

5 Baulkham Hills Local Environmental Plan 2005, under which the site is zoned Rural 1 (c) and the ‘childcare centre’ is permissible with consent.

Development Control Plan No 1 – Rural 1 (a), 1 (b), and 1 (c) Zones.

Development Control Plan No 12 - Parking

Development Control Plan No 15 – Landscaping.

6 At the hearing, the Court had the benefit of evidence from:

• Mr G Samardzic, Mr C Winn – Council planners,
• Ms K Gordon,- Applicants consulting planner,
• Mr C Hutcheson, - Applicants traffic engineer,
• Mr K Adetunmbi, - Applicants traffic engineer (Exhibit C).

7 The modification sought is to retain the existing driveway to the dwelling house. The conditions of consent required the removal of this driveway and traffic to the dwelling be connected via a new accessway onto the new driveway proposed for access to childcare centre at the rear of the existing dwelling. Ms Gordon says that as the driveway currently exists, its retention will have no negative impact on the existing traffic within Bannerman Road and it will have satisfactory sight distances. Also, that the retention of the driveway, will still allow satisfactory planting in front set back area of the dwelling to achieve appropriate landscape setting.

8 In the original application, concerns were expressed about the traffic impacts for users of the proposed new driveway to the childcare centre. In part, this was due to the location of the proposed driveway towards the eastern boundary of the property. However, with some benching and clearing of vegetation, satisfactory sight lines and stopping distances were achieved. This resolution of the access issue of included removal of the existing crossing to the dwelling house.

9 In support of the driveway modification, both Mr Hutcheson and Mr Adetunmbi say that the existing driveway complies with the relevant Australian Standards and councils specifications in terms of its location, width and site distance and there is no safety deficiency with the retention of this crossing. Mr Hutcheson also says that a marginally lower standard for sight distances is allowable for residential dwellings, as compared to commercial properties such as a childcare centre.

10 In response to the proposed modification, council's traffic engineer has also assessed the safety aspects for the driveway retention and stated:

There is no objection to the request for the existing driveway to remain as it is because the proposed works for the new access will result in better site distance for the existing driveway as well. However, it is generally desirable to limit access points to and from a property.

11 The other traffic issue concerns the deletion of the speed humps on new driveway. No objection was raised by Council to this modification.

12 The associated issue with the driveway removal concerns landscaping opportunities. It was initially considered that the driveway removal would facilitate improved landscaping of the front set back area to partially screen the dwelling and improve the streetscape.

13 However, on review of the merits of this s 96 Modification, both Ms Gordon and Mr Samardzic agree that satisfactory landscaping can be undertaken, whilst retaining the existing crossing.

14 A number of objections were lodged against this proposal, as contained in councils bundle of documents. These objections may be related to traffic safety, landscape impacts and the merits of the childcare centre.

Conclusions

15 Having considered the evidence, the submissions and undertaken a view, I am satisfied that this s 96 Modification merits conditional consent. As the proposal involves alteration to conditions of consent regarding driveway access and landscaping, I am satisfied that the modification relates to the same development.

16 I rely on the traffic engineers assessment that adequate sight distance is available from this existing crossing and considering the likely traffic generation, reasonable standards of safety should occur. On balance, I am satisfied that the retention of the driveway demonstrates reasonable compliance with the relevant standards and council controls to allow its retention.

17 I am also satisfied from the planners evidence, that the set back area in front of the existing dwelling can be appropriately landscaped to achieve appropriate rural/residential landscape setting. This is notwithstanding, the retention of the driveway.

18 I also consider the objections lodged and consider that the traffic and landscaping can be satisfactorily addressed as detailed previously.

1. The appeal is upheld.
2. The s 96 Modification to the conditions of consent in the Court Orders of 5 September 2005, for a childcare centre at 18 Bannerman Road, Kenthurst is allowed subject to the amended conditions in Annexure A.

___________________

R Hussey
Commissioner of the Court
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