Michael Standley and Associates Pty Ltd v North Sydney Council

[2005] NSWLEC 358

Land and Environment Court

of New South Wales

CITATION:

Michael Standley & Associates Pty Ltd v North Sydney Council [2005] NSWLEC 358

PARTIES:

APPLICANT
Michael Standley & Associates Architects Pty Ltd

RESPONDENT
North Sydney Council

FILE NUMBER(S):

10236 of 2005

CORAM:

Nott C

KEY ISSUES:

Development Application :- vehicular access for proposed duplex on the corner of two streets and a lane - whether vehicular access for both lots should be from the lane - traffic lights at the corner of the streets - proposed vehicular access for lot 1 to the street is acceptable with the cars being able to enter and leave the site in a forward direction - appeal upheld

LEGISLATION CITED:

North Sydney Local Environmental Plan 2001
North Sydney Development Control Plan 2002
State Environmental Planning Policy No. 1 - Development Standards

DATES OF HEARING:

24/06/2005

EX TEMPORE JUDGMENT DATE:

06/24/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Hannaford, solicitor
SOLICITORS
Hannaford Lawyers

RESPONDENT
Ms D Townsend, solicitor
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Nott C

24 June 2005

10236 of 2005: Michael Standley & Associates Pty Ltd v North Sydney Council

JUDGMENT

1 Commissioner Nott: This is an appeal against the council’s refusal of a development application to demolish existing buildings at 46 Young Street, Cremorne, and to erect a duplex and subdivide the land so that each dwelling in the duplex is on its own Torrens-title lot.

2 The main issue in the proceedings relates to whether or not the council’s refusal should be confirmed so as to enable an amended or new application to be lodged providing for vehicular access for both proposed dwellings from Young Lane.

3 The hearing commenced with an inspection at the site and at that time I heard brief evidence from both parties and by consent then adjourned the proceedings back to court for some further short evidence and the tendering of documents and final submissions.

4 In relation to the main issue, there was evidence from the council’s officers Mr A Robb (a town planner) and Mr E Mieluk (an engineer). For the applicant, evidence was given by Mr J Coady, a consultant traffic planner. I also heard evidence for the applicant from the architect for the proposal, Mr M Standley. I have taken into account also the other evidence that has been presented including the council’s bundle of documents.

5 Although there were objectors who wrote to the council, no objector took the opportunity to be present at the site today or attend at court. The council does not submit that the present proposal should be refused because of amenity impacts on adjoining neighbours.

6 The subject land has an area of 602.5 square metres. It has a frontage to the south to Belgrave Street, a frontage to Young Street on the east and on the west a frontage to Young Lane. Its northern boundary is coterminous with two adjoining properties that originally were probably one lot, similar in size to the subject lot. There is a dwelling at 48 Young Street, towards the eastern end of the subject land, having a common boundary with the subject land. On the western end of the subject land and adjoining it is 31 Young Lane.

7 There are traffic lights at the corner of Young and Belgrave Streets. The proposed dwelling having a frontage to Young Street has a carport that will be approximately 9.5 metres from the tangent point of the intersection. This dwelling house is proposed to be on lot 1. Lot 2 is the lot that has a frontage to Young Lane. There is no issue as to the parking that is proposed for the dwelling on lot 2 facing Young Lane.

8 Why the council refused the application was that it said that having regard to North Sydney Development Control Plan 2002 (which supplements the controls of North Sydney Local Environmental Plan 2001), there should be a redesigned application so that all parking would be from Young Lane. This would mean that there would have to be a quite differently designed proposal than what is now before the Court. It could mean that there would be underground parking or, alternatively, that there would have to be an access walkway provided from the carparking space at Young Lane to the proposed dwelling having a frontage to Young Street.

9 In addition, the evidence of the council engineer was that vehicular access to the proposed dwelling fronting Young Street would be unsafe because of the proximity of the driveway to the traffic lights. This view was not accepted by Mr Coady.

10 Having inspected the subject site and considered all the evidence, I am of the opinion that the evidence presented by Mr Coady favours, from a traffic-safety point of view, the granting of consent to the proposal. If the site was larger, the driveway could be located further from the traffic lights. However, the location of the proposed driveway to the dwelling facing Young Street is in accordance with recognised standards relating to the location of accesses to private dwelling houses near intersections.

11 Mr Coady emphasised that the access into Young Street will not be into the holding section of a traffic lane at the signalised intersection. Rather, cars departing from the subject site will have the benefit of being able to use the red phase of the traffic lights to enter or leave without impinging upon traffic in the northbound lane immediately adjacent to the site.

12 Mr Coady was of the opinion that it was not necessary to have a manoeuvring area at the front of the proposal to enable a car to both enter and leave lot 1 in a forward direction. However, the council submitted that weighing safety matters and the impact of such a manoeuvring area on landscaping, it would be preferable to have the opportunity to manoeuvre at the front of lot 1, so that cars could enter and leave the site in a forward direction. I consider that such a manoeuvring area is not needed if one looks only at the northbound lane; but from another point of view, if access is sometimes sought to the southbound lane, then cars entering or leaving the subject site could be involved in travelling through the area of influence for normal queue lengths for southbound traffic. Therefore, I prefer the council’s manoeuvring area which has been suggested and which, indeed, has been adopted in the plans that are exhibit A for which consent is sought.

13 In relation to providing access to all carparking from the lane, I have had regard to the particular location of the subject land adjoining two other lots to the north which have been subdivided and which have, at least in respect of the immediately adjoining property, access both from Young Street and from Young Lane.

14 I have taken into account the width of the subject land, which is 13.175 metres. I have also noted that the proposed dwelling on lot 2 does provide for its car parking off Young Lane and that it does not have its main entrance to the dwelling from the lane but from Belgrave Street. It seems to me that there would be an unnecessary constraint upon development if a new application had to be made providing for all access from the lane.

15 In accordance with the DCP, the car-manoeuvring area at the front will be grassed, supported by reinforced grass rings as described in exhibit F.

16 Certain conditions have been imposed for the benefit of neighbours, including a condition requiring the lower portion of dormer windows facing north to have obscure glazing, and a condition preserving the picket fence forward of the proposed carport for the dwelling on lot 1.

17 A landscaping plan has been prepared and I have also taken into account that landscaping will be provided across the frontage of the manoeuvring area in front of a proposed fence which will be set back from the front boundary of the subject site. Landscaping is also proposed along the northern boundary, separating the proposed driveway to the carport from the adjoining property to the north.

18 There is an objection under State Environmental Planning Policy No.1—Development Standards in respect of minor breaches of the building height plane projected from the northern boundary. With the lowering of the dormer windows in accordance with a condition of consent there will be a smaller breach in that regard. The breach does not affect neighbours. The breach is a little larger as regards the building height plane from Belgrave Street, but does not impact upon dwelling houses, and in the streetscape the proposed building will not be out of place because of that breach.

19 I am of the opinion that the SEPP 1 objection is well founded for the reasons set out in the written objection and that it is appropriate to grant development consent.

20 The conditions of consent have in substance been agreed by the parties.

21 Accordingly, the orders of the Court are:

1. The appeal be upheld.
2. Development consent is granted for the demolition of the existing buildings and for the erection of a duplex at 46 Young Street, Cremorne, and for the subdivision of the land in accordance with the conditions in annexure A to this order.
3. The exhibits, other than exhibits 1, 2, 7, 8, A, E, F and G, may be returned.
______________
A J Nott
Commissioner of the Court
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