Kotsifas v Georges River Council

[2016] NSWLEC 1326

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kotsifas & anor v Georges River Council [2016] NSWLEC 1326
Hearing dates:	25 July 2016
Date of orders:	11 August 2016
Decision date:	01 August 2016
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	See paragraph [47]
Catchwords:	MODIFICATION APPLICATION: Conditions of consent; rear lane vehicular access to extended family unit/ secondary dwelling; pedestrian safety; emergency access
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act Kogarah Local Environmental Plan 1998 Kogarah Local Environmental Plan 2012
Cases Cited:	Zhang v Canterbury City Council [2001] NSWLEC 167
Category:	Principal judgment
Parties:	Nicholas and Maria Kotsifas (Applicants) Georges River Council (Respondent)
Representation:	Applicant: Ms LM Saw (Barrister) Respondent: Mr K Webber (Solicitor)     Solicitors/Agent: Applicant: Australian Town Planning Pty Ltd Respondent: Wiltshire Webb Staunton Beattie Lawyers
File Number(s):	156135 of 2016

Judgment

1. COMMISSIONER:   On 26 February 2013, Kogarah City Council, as it then was, granted conditional consent to Development Application No. 306/2012 for a detached extended family unit with pergola and new in-ground swimming pool at 78 Stuart Street, Blakehurst (the site).

2. In March 2013, the applicants lodged an application under s 96 of the Environmental Planning and Assessment Act 1979 (EPA Act) seeking the modification of the development consent by deleting of conditions 6 and 27. Council refused modification application 306/2012/1A on 22 April 2013.

3. In July 2014 the applicants lodged another modification application, 306/2012/2, seeking to delete the same conditions of consent. Following the removal of a legal impediment to one aspect of the surrounding site, in October 2015 council approved Modification Application 306/2012/3 subject to a range of conditions of consent, most of which were the conditions originally imposed on the original consent.

4. In April 2016, the applicants filed the Class 1 application with the Court seeking to modify and or delete a number of conditions of consent.

5. In essence, the applicants seek to delete conditions of consent which prevent them from obtaining vehicular access to the extended family unit via a new crossover and driveway from River Street; the street onto which the property backs.

The site and its locality

6. The site currently contains a part one/part two storey dwelling with an attached garage capable of accommodating two vehicles parked in a tandem arrangement. The garage can be accessed at either end via roller doors. The front of the site comprises a large concrete driveway and front garden. The street address is 78 Stuart Street Blakehurst.

7. The rear of the property extends to River Street; this is a cul-de-sac. There are no formal footpaths on either side of River Street. River Street slopes uphill from Castle Street to the east.

8. Off the head of the cul-de-sac are five driveways of adjoining residential properties. The fence at the rear of the site contains a double gate through which vehicular access is possible. The adjoining properties at the rear, on either side of the proposed rear access to the site, are number 9 to the north and number 12 to the east. The verge between nos. 9 and 12 River Street at the rear of the applicants’ property includes a conventional concrete driveway to no. 9 and a larger splayed double driveway and hardstand at the front of no. 12. In between, and adjacent to the gates, is a roughly triangular area of grass; there is no crossover to the rear of the applicants’ property. The applicants’ property is the only property in Stuart Street with direct rear access to River Street.

9. Two doors to the south of the site in Stuart Street is Baldface Public School. Running along the western boundary of 12 River Street, and adjoining the back fences of the three properties to the north of the school, including the applicants’ property, is a fenced and gated pedestrian path, which provides a secondary and rear access for the school. The end of the path is approximately 1.7m from the southern edge of the proposed driveway and gates (as shown on the plans filed with the Court and the subject of the application).

Conditions in contention

10. The conditions in contention are:

Section B – Prior to issue of a Construction Certificate or Demolition Conditions

(5)   Hardstand Area

The hardstand area on the northern side of the extended family unit and outdoor area extending from the rear boundary shall be deleted and this area turfed.

(6)   Vehicular Access

No vehicular access shall be provided from River Street and no vehicular access gates are to be installed in the rear fence to River Street.

(7)   Outdoor Area

The roof over the outdoor area on the eastern side of the extended family unit shall be reduced in size having a minimum setback on the River Street boundary of 5.0 metres.

Section D – Construction and Operational Conditions

(27)   Construction Access

Rear access to the site during the construction phase of the development is permitted, however the delivery of goods and materials associated with the proposed development shall not occur between the hours of 8.00am-9.30am and 2.30pm-4.00pm on school days. (Modified – Modification Ref. No: 306/2012/3 – Date of Approval 7/10/15)

Section E – Prior to Occupation or Subdivision Certificate Conditions

(28A)   Rear Lane Access

Prior to the occupation of the secondary dwelling, the issue of any occupation certificate or twelve (12) months from the date a Construction Certificate has been issued, whichever event occurs first, the rear vehicular access gates used during construction only are to be removed and replaced with similar fencing to that existing, with the inclusion of a pedestrian gate only, with a maximum width of 1.2m.

(Added – Modification Ref. No: 306/2012/3 – Date of Approval 7/10/15).

The applicants’ position

11. The applicants are seeking the deletion of conditions 5 and 7 and the modification of conditions 6, 27 and 28A. The following modifications are proposed:

(6)   All access to and egress from the site for motor vehicles shall be in a forward direction.

(27)   The submitted Site, Pedestrian, and Traffic Management Plan be implemented during the construction stages.

(28A)   The rear fence to the site be substituted to a transparent or open metal palisade type fence, to allow a clear sight line for vehicles exiting the site.

12. The changes are sought on the basis that the extended family unit is being constructed to house an elderly relative. In an oral submission made to councillors in support of his modification application (Exhibit E), Mr Kotsifas states that access from River Street is vital for access to home care and ambulance services. He further states that his development application was designed with the intention of having vehicular access to River Street and without it, the purpose is useless.

13. The applicants maintain that the modifications sought will enable safe access to and from their property and will not pose a risk to school children.

The council’s position

14. The council contends that secondary access is not permissible for secondary dwellings and that reasonable access is possible from Stuart Street. Further, an additional driveway onto River Street, in close proximity to the pedestrian path used by pupils from Baldface Public School, creates an unacceptable risk.

Assessment framework

15. Section 96(3) of the EPA Act requires a consent authority to take into consideration relevant matters under s 79C(1) of the Act when determining an application for modification of a development consent.

16. When the original development consent was granted, Kogarah Local Environmental Plan 1998 (KLEP 1998) was in force. The Dictionary at cl. 25 provides the definition of ‘extended family unit’:

Extended family unit means a dwelling or part of a building no larger than 65 square metres in area that is detached from, attached to or within, another dwelling and in which facilities for cooking, sleeping and washing are included, but where clothes washing facilities for use in connection with the dwelling or part of the building may be provided on a shared basis.

17. KLEP 1998 was repealed and replaced by Kogarah Local Environmental Plan 2012 (KLEP 2012). The site is zoned E4 Environmental Living under KLEP 2012.

18. The current instrument does not include any reference to ‘extended family unit’ however ‘secondary dwellings’ are permitted with consent in the E4 zone. They should not exceed an area of 60m2. The definition of ‘secondary dwelling’ is:

Secondary dwelling means a self-contained dwelling that:

(a)   is established in conjunction with another dwelling (the principal dwelling), and

(b)   is on the same lot of land as the principal dwelling, and

(c)   is located within, or attached to, or is separate from, the principal dwelling.

19. The current controls are found in Kogarah Development Control Plan 2013 (KDCP 2013) at Part C1 cl. 2.2 Secondary Dwellings. The following objectives and controls are pressed by council.

Objectives

(a)   Secondary dwellings should not adversely impact on neighbouring properties.

(b)   Secondary dwellings are not to provide additional on-site parking or off street access.

Controls

(5)   Secondary dwellings must not have additional on-site car parking.

(7)   For properties with rear lane access, a detached secondary dwelling may present to, and be visible from the rear lane, but must not include additional parking or driveway access from the site.

(8)   A secondary dwelling located at the rear of the site must include deep soil planting within the rear setback, including trees that contribute to the tree canopy.

20. An assessment report to council on the first Modification Application, prepared by a council officer and dated 19 April 2013 (Exhibit G) refers to the Kogarah Residential Design Guide 2005 (KRDG 2005), the applicable equivalent of the DCP at that time. As the KRDG was not in the council’s bundle of evidence, as it has been superseded by KDCP 2013, the best evidence of the wording of the relevant section of the KRDG is in the part of the officer’s report that considers the relevant matters in the s 79C assessment:

The proposed development as modified is subject to the provisions of the Kogarah Residential Design Guide 2005 (RDG). The following comments are made with respect to the proposal satisfying the objectives and design principles contained within the Guide.

Extended Family Units

Extended family units do not require additional onsite parking or off street access.

Extended family units must not have additional on site car parking.

For properties with rear lane access, a detached extended family unit may present to, and be visible from the rear lane, but must not include additional parking or driveway access from the lane.

The hearing and evidence

21. The matter commenced on site as a mandatory conciliation under s 34AA of the Land and Environment Court Act 1979 (Court Act). As the parties could not reach an agreement, the matter proceeded to a hearing in accordance with s 34AA(2)(b)(ii) on the basis of what occurred during the conciliation.

Objectors

22. Whilst still on site, the owners of the adjoining River Street properties and the Principal of Baldface Public School made oral submissions objecting to the proposal for vehicular access to and from the rear of the applicants’ property.

23. The Principal stated that there are currently 265 students between the ages of 5 and 12 years attending the school. Approximately 17% of them (about 45 students) use the rear access to the school, with possibly more in wet weather. For the past 15 years the P&C has had concerns about the safety of the students; in part, because of the sloping nature of River Street. In recent years there has been an increase in the number of large vehicles using the street.

24. The owners of the adjoining properties, 9 and 12 River Street, reiterated the concerns about the number of small children using the pathway and the need for special care when they enter and leave their driveways. In their view any additional vehicular access from the applicants’ property would increase the risk of an accident.

25. The objectors written submissions are included in the council’s bundle of evidence (Exhibit 1, Tab 4).

Planning

26. The parties’ planners, Mr John Boers for the applicants and Mr Bernard Morez for the council, prepared a joint report (Exhibit 3). The planners defer the pedestrian and traffic safety issues to the traffic experts. The planners agree that Condition 7 can be deleted as the setback is the average setback of the adjoining development facing River Street.

Traffic

27. The parties’ traffic experts prepared a joint report (Exhibit 2). Mr Lyle Marshall for the applicants considers that access from the rear of the applicants’ property should be permitted if the following changes are made:

• The driveway should be relocated to the northern boundary of the site.

• The section of the rear 1.8m high fence and inclusive of the gates from the end of the pedestrian path to the school to the northern boundary fence should be replaced with a 1.2m open mesh fence to improve visibility [on site, Mr Marshall suggested that a further barrier could be installed perpendicular to the fence near the end of the pathway in order to prevent children walking directly in front of the gates].

• There should be no access from the garage on the site to River Street.

• The covered car port to the extended family unit should be restricted to one car space.

• The hardstand area on the northern side of the extended family unit should be extended to enable a vehicle to enter and leave the site in a forward direction and to provide on-site parking/access for emergency vehicles/home care staff.

28. Mr Marshall is of the opinion that the severity of an incident involving a vehicle entering or leaving the site from the proposed rear driveway would be limited or minor, the frequency very unlikely, and the risk low. His opinion is based in part on his observation of students leaving from the River Street pathway on 31 May 2016 between 3:15 and 3:40 pm and on his analysis of observations made by the applicants. Mr Marshall opines that the number of pedestrian movements is low and confined to school days. He considers that there may only be six vehicular movements a day to and from the site and these are unlikely to coincide with school start and finish times. Mr Marshall considers that conditions 6 and 28A should be deleted.

29. The council’s traffic expert, Mr Craig McLaren, does not agree with Mr Marshall’s conclusions about conditions 6 and 28A. In his view, vehicular access to the rear of the applicants’ property is available through the existing garage on the site and all that is required to River Street is a pedestrian gate. Mr McLaren considers that the traffic generated by the proposed access, albeit low, will increase safety risks for existing users of the footpath corridor and the grassed driveway verge at the end of the River Street cul-de-sac. In his opinion this is contrary to risk assessment/ road safety audit practice that seeks to eliminate or reduce unnecessary risks by appropriate design response.

30. In regards to access by emergency vehicles, Mr McLaren considers that any ambulances would probably be directed to the street address which is 78 Stuart Street. In the alternative, an ambulance could park in River Street and the paramedics would access the rear of the property through the pedestrian gate which would be wide enough for a stretcher. Mr McLaren is of the opinion that conditions 6 and 28A should remain.

31. In oral evidence, Mr Marshall opined that there are many cul-de-sacs in Sydney with many driveways off them and there are no unreasonable risks posed by one more driveway in River Street. He repeated his view that vehicles from both adjoining properties reverse out of their driveways which is more hazardous that his proposal for forward egress from the site. Further, Mr Marshall stated it was his observation that the children were generally accompanied by an adult and if there were real concerns about safety, the school would have implemented some supervision. Mr McLaren reiterated his concerns about the safety risks. In his view the cul-de-sac in River Street is unique because of the rear pedestrian access to the Public School and the proximity of it to the proposed driveway. Mr McLaren considers that the driveway at the front of the applicants’ property could accommodate about 6 vehicles and thus there is adequate space for an ambulance at the Stuart Street address. In his experience, emergency vehicles have no requirement to enter private property and there are many examples throughout Sydney and elsewhere where such access would be impossible.

32. There are a number of annexures to the joint traffic report. Annexure B illustrates Mr McLaren’s sketch of the six cars that could be parked in the driveway at the front of the applicants’ property. Annexure C is a plan which illustrates Mr Marshall’s recommended measures for ensuring entry and exiting from the site in a forward direction and the relocation of the driveway to the north. This requires an extension of the hardstand to the west and north. Annexure D includes the survey results of pedestrian movements in and out of the River Street pathway to Baldface Public School carried out by the applicants and Mr Marshall. The applicants’ survey records the numbers of parents and children entering and leaving the pathway for approximately half hour periods over several mornings and afternoons. The morning dates are 5, 8, 9,16 -19 September and 8 October 2014; afternoon dates are 22 July, 4, 5, 8, 9,12, 15-17 September 2014. The numbers of children recoded in the mornings range from 12-22; parents and children from 16-33; in the afternoons - children from 23-46; parents and children from 41-70. On his single visit on the afternoon of 31 May 2016 Mr Marshall recorded 35 children and 21 adults leaving the school via the River Street path.

33. Both traffic experts agree that condition 27 should be modified in the following terms:

27.   Construction Access

Rear access to the site only during the construction phase of the development is permitted, however the delivery of goods and materials associated with the proposed development shall not occur between the hours of 8.00am–9.30am and 2.30pm-4.00pm on school days.

The traffic management plan for the construction phase of the development is to be amended to include the recommendations of both Craig McLaren and Lyle Marshall as set out on page 5 of the Traffic Joint Report dated 12 July 2016.

Submissions

34. Ms Saw, for the applicants, presses Mr Marshall’s evidence that on balance, the risk to children as a consequence of the proposed rear access is low; to date there have been no accidents involving children in River Street. Ms Saw asserts that the Court should give considerable weight to the observations made and recorded by the applicants of the relatively low number of children using the rear access to the school and confirmed by Mr Marshall. She stresses the desire of the applicants to ensure speedy emergency access for their elderly relative is not unreasonable. She notes the difficulties an ambulance officer may have if the Stuart Street address is used and there is no one home in the primary dwelling. She maintains the applicants’ position that having an alternative “address” or access point would avoid any unavoidable delays. On balance, Ms Saw contends that the applicants’ concerns should prevail and conditions 6 and 27 should be deleted.

35. In regards to jurisdictional matters, Ms Saw maintains that the extended family unit was a permitted use under KLEP 1998 and the provisions of KLEP 2012 and KDCP 2013 do not strictly apply. In order to ensure that there was no additional parking space created for the extended family unit, it was suggested that one of the spaces in the current garage be converted to storage and that space be relocated to the covered area adjoining the approved structure.

34. Mr Webber for the council contends that while KLEP 1998 permitted what was then described as an ‘extended family unit’ that instrument has been repealed and that type of development is no longer described. Under the current regime, the proper characterisation of the proposal is a ‘secondary dwelling’. Council accepts that under the applicable instrument when the DA was determined, an extended family unit could have an area of up to 65m2; council does not press the current control of 60m2. However, council maintains that the definitions of both types of development are essentially the same and are forms of development which are associated with a primary dwelling; as such there is consistency between past and present instruments and controls. While these forms of residential accommodation are quite distinct from dual occupancies, their use is not confined to family members.

35. In citing Zhang v Canterbury City Council [2001] NSWLEC 167, Mr Webber notes that both KRDG 2005 and KDCP 2013 state that extended family units/ secondary dwellings are not to provide additional on-site parking or, if applicable, rear lane access. Therefore, the council submits that even before any discussion of the safety of children, there must be a good reason to depart from the controls. In this regard, Mr Webber rejects the applicants’ submissions on the need for emergency access as no evidence has been adduced in support of that submission. Mr Webber presses Mr McLaren’s opinion that emergency vehicles and personnel can access the property either from Stuart Street or through the proposed pedestrian gate from River Street.

36. In respect of the merits of the proposal, Mr Webber contends that weight should be given to the safety concerns expressed by the principal of the school and the local residents. He considers that little weight should be given to the survey by the applicants as this is not expert evidence or subject to the Expert Witness Code of Conduct. In pressing the concerns of the residents and the council, Mr Webber stresses that the children range from 5-12 years old and as such, their behaviour can be unpredictable: this presents an inherent risk. Mr Webber submits that Mr McLaren’s evidence should be preferred over that of Mr Marshall in regards to the uniqueness of the cul-de-sac and his opinion that extra vehicles will increase the safety risk.

37. Mr Webber also contends that the fencing measures proposed by Mr Marshall will have implications for privacy and landscaping and that a possible barrier on council land is not part of the application.

Findings

40. On the evidence before me and after considering the relevant matters under s 79C(1) of the EPA Act, I am not satisfied that conditions 5, 6 and 28A should be deleted or modified. However, I accept the evidence of the planners that condition 7 can be deleted and condition 27 modified in the terms agreed by the traffic experts.

41. In regards to the relevant LEPs and KDCP 2013 and its predecessor KRDG 2005, I accept the council’s submissions that there is a great deal of similarity in the definitions of ‘extended family unit’ and ‘secondary dwelling’ in the applicable LEPs. While extracts from the KRDG were not in evidence, I am satisfied on the basis of the 2013 report to council (Exhibit G) in regards to the first modification application, that at the time the original development application was made and approved, the KRDG made it clear that, at the very least, additional onsite parking or off street access was not required for extended family units. It is also reasonable to assume from the report that detached extended family units were not to have additional parking or driveway access from a rear lane. Indeed, it appears from the report that the conditions 6 and 27 were specifically imposed because, for amongst other (relevant) reasons: “Vehicular access to the rear of the site presents potential safety impacts to the rear pedestrian path to Bald Face Public School. The Residential Design Guide 2005, does not permit Extended Family Units (secondary dwellings) to have separate car parking, which was originally proposed and deletion of the conditions as proposed would facilitate”. The report continues: “There are no reasons to delete the conditions, whilst there are valid reasons for their imposition in the first place. The proposed modifications are not supported”. It is clear that council has been consistent in not supporting the modification sought by the applicants on several occasions.

42. On the merits, I am not persuaded that Mr Marshall’s suggested amendments to the fencing, location of the driveway, and extension of the hardstand can be supported. As I noted during the hearing, the installation of a mesh fence to improve visibility limits landscaping along the rear boundary. During the site inspection Mr McLaren opined that the palisade type fencing suggested on the plans does not improve visibility beyond a few metres; this was obvious when a similar fence was inspected. Installation of a mesh fence and gates to 1.2m will also create privacy and potentially security issues for the occupants of the applicants’ property. Some privacy is likely to be desirable as a swimming pool was approved as part of the original consent. Similarly, the extension of the hardstand in order to facilitate egress of the site in a forward direction reduces the amount of soft landscaping and creates a greater opportunity for additional parking at the rear of the property. While the intent of the applicants may be to limit the parking to one vehicle, as the consent runs with the land, this cannot be guaranteed into the future. Moving the driveway to the north and along the common boundary with the adjoining property may also have consequences which have not been considered by council. As discussed during the site inspection, an additional extension of the fence onto council land is not part of the application; the attending council officers suggested that this would not be supported.

43. I agree with Mr Webber’s submission that little weight should be given to the survey conducted by the applicants; more so because those surveys were conducted in 2014. Similarly, little weight can be given to Mr Marshall’s brief and one-off observation. That said, while the focus has been on children, it is clear from the data collected by the applicants and Mr Marshall that when adults are included in the figures, a significant number of pedestrians use the River Street path to and from the school.

44. On the desire for access for ambulances or home care workers, I accept Mr McLaren’s evidence that suitable access is currently available from Stuart Street and potentially available from River Street if a pedestrian gate is installed.

Conclusions and directions

45. Having considered the submissions of the objectors and the parties and the expert evidence, I am not satisfied that it is reasonable or appropriate to approve the modification sought by the applicants to delete conditions (5), (6), and (28A); therefore, conditions (5), (6) and (28A) are to remain. On the evidence of the planners I am satisfied that condition (7) can be deleted. Similarly, on the evidence of the traffic engineers, condition 27 is to be modified in the terms set out in paragraph [33] of this judgment.

46. Directions will be made in consultation with the parties for the provision of a new document comprising the existing conditions to be deleted or modified and a consolidated set of conditions of development consent incorporating all conditions proposed to apply to the modified proposal as approved. Once received, final orders will be made in chambers.

Addendum made on 11 August 2016

47. In accordance with the terms of paragraphs [45] and [46] of my judgment of 1 August 2016, the parties provided the amended conditions of consent. I am satisfied that the conditions reflect my findings; as a consequence I make the following orders.

1. The appeal is upheld.

2. Modification Application 306/2012/3 to modify Development Consent No 306/2012 for a detached extended family unit and in ground swimming pool at 78 Stuart Street, Blakehurst is determined by approving the modifications identified in Annexure ‘A’.

3. As a consequence, Development Consent No 306/2012 is now subject to the consolidated, modified conditions of development consent set out in Annexure ‘B’.

4. The exhibits other than A are returned.

______________________

Judy Fakes

Commissioner of the Court

156135.16 Annexure A (185 KB, pdf)

156135.16 Annexure B (189 KB, pdf)

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Decision last updated: 11 August 2016