Nasr v Canterbury-Bankstown Council

[2017] NSWLEC 1580

Land and Environment Court

New South Wales

Medium Neutral Citation:	Nasr v Canterbury-Bankstown Council [2017] NSWLEC 1580
Hearing dates:	9 October 2017
Date of orders:	17 October 2017
Decision date:	17 October 2017
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1.   The appeal is upheld. 2.   Modification Application No. 559/2013/A to modify development consent 559/2013 for the construction of a mixed use development at 702-704 Canterbury Road, Belmore, is approved, subject to the consolidated conditions at Annexure A. 3.   The exhibits, other than exhibits 1 and H, are returned.
Catchwords:	MODIFICATION APPLICATION: approved mixed use development, whether changes to the basement levels including the introduction of car stackers to provide 4 additional car parking spaces results in satisfactory car parking arrangements.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Zhang v Canterbury City Council (2001) 51 NSWLR 589
Category:	Principal judgment
Parties:	Roger Nasr (Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	Counsel: Mr V. Conomos solicitor (Applicant) Mr C. Zoppo solicitor (Respondent) Solicitors: Conomos Legal (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2017/47142

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97AA of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application No. 559/2013/A to modify development consent 559/2013 for a mixed use development, by adding two additional 1 bedroom apartments; 4 additional car parking spaces through the introduction of car stackers in the basement; converting two adaptable units to standard units; changing the roof form from a curved roof with attic rooms to a flat roof; and changing the internal layout (the proposal), at 702-704 Canterbury Road, Belmore (the site), by Canterbury-Bankstown Council (the Council).

2. The appeal was subject to mandatory conciliation on 6 June 2017, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

3. Leave was granted by the Court on 27 June 2017 for the applicant to rely on an amended proposal. Leave was granted by the Court at the commencement of the hearing for the applicant to rely on a further amended proposal (the proposal, Revision D, exhibit H).

Issues

4. The Council contends that the proposal to provide mechanical parking devices to provide 4 additional car parking spaces within basement level 2 is contrary to Part C20 of Canterbury Development Control Plan 2012 (DCP 2012) Amendment 3 which does not support mechanical parking devices. As the amendment to DCP 2012 is now in force it is “imminent and certain” in respect of the modification application which was lodged prior to DCP 2012 Amendment 3. The mechanical parking devices are not supported because residents are more inclined to utilise on-street parking as it is more convenient.

5. The Council further contends that insufficient information has been provided to properly assess the manoeuvrability of traffic within the basement.

6. The Council does not raise any issues regarding other aspects of the proposal and is satisfied that the total number of car parking spaces proposed is acceptable.

The site and its context

7. The site is on the south-eastern side of Canterbury Road between Nelson Avenue and Liberty Avenue. The site has rear laneway access.

8. The site has a width of 12.28m and a site area of 643.7sqm.

9. The approved development is currently under construction.

Planning framework

10. The site is zoned B5 Business Development under Canterbury Local Environmental Plan 2012 (LEP 2012).

11. The modification application was lodged on 2 June 2016. At that time, DCP 2012 Amendment 2 included the following in relation to mechanical parking devices:

6.8.15 Mechanical Parking Devices

i. Parking arrangements requiring mechanical means will be assessed based on the merits of individual development proposals.

ii. All mechanical parking devices must be located in an enclosed area within the building or facility they serve.

iii. Provide adequate vehicle storage and queuing areas to ensure that queues of vehicles awaiting service by the installation do not extend into circulation areas or off‐site under normal foreseeable conditions.

iv. Locate and design so that noise and vibration generated by the installation are kept to a minimum and does not interfere with the amenity of adjoining uses.

12. Amendment 3 to DCP 2012, dated 30 January 2017, includes the following in relation to mechanical parking devices:

Mechanical Parking

C20 Mechanical parking devices, including car lifts, will not be supported.

Expert evidence

13. The Council relied on the expert evidence of Dr Daniel Martens and the applicant relied on the expert evidence of Mr Paul Corbett in relation to traffic engineering.

14. The experts prepared a joint report (exhibit 3) which included vehicle swept paths individually prepared by each expert. I am satisfied that these attachments D and E to exhibit 3 satisfactorily deal with the Council’s contention regarding insufficient information.

Car lift dimensions

15. The experts agreed that the proposal increased the dimensions of the car lift by 1.1m in length and 0.9m in width, resulting in internal dimensions, within which the mechanical unit is positioned, of 6.533m long and 3.7m wide.

16. The increased length dimension results in an aisle width of 5.16m, less than the 5.8m required by AS/NZS 2890.2:2004 Parking facilities (“AS” exhibit 2, tab 8) Figure 2.2 for class 1A. According to Dr Martens, this results in a material change to the traffic circulation on the basement levels. According to Mr Corbett, the increase in the width the car lift improves access for cars entering and leaving the lift and represents a superior outcome to an aisle width of 4.9m required by Figure 5.4 of the AS. Dr Martens’ noted Figure 5.4 is for the design of an entry to an enclosed garage and is not relevant to a car park.

17. According to Dr Martens, a B99 vehicle will be able to manoeuvre into and out of the car lift. In his view, the B85 and B99 vehicle swept paths for the turning bay, visitor parking, commercial parking spaces and loading bay are compliant but very tight and it is likely that multiple movements will be required, depending on an individual’s driving skills. Mr Corbett agreed that the dimensions in the basement levels in relation to manoeuvring cars are tight.

Car stacker devices

18. The proposal introduces car stacker devices to 4 car parking spaces, so that 2 cars can park in each of the 4 car parking spaces, some of which will be shared by residents from two units, as there are 18 units and a total of 20 residential car spaces.

19. According to Mr Corbett, the increase in the number of car parking spaces on basement level 2 will result in an additional vehicle trip every hour when compared to the approved development and one vehicle will enter a car stacker device every 30 minutes during the evening peak. Inevitably, the residents with a car space within a car stacker device will experience a delay when seeking to enter or exit their car space, being an average delay of 40 seconds up to a maximum delay of 80 seconds.

20. The head height in the car stackers is a maximum of 1.9m, which Dr Martens notes will preclude some vehicles from being able to use the car stackers.

21. The aisle width adjacent to the car stackers is 6.29m, which Mr Corbett notes is in excess of the requirement of 6.1m under the AS and this will improve manoeuvrability into and out of the car stackers.

Findings

22. The savings provision at A1.9 of DCP 2012 Amendment 3 requires the proposal, lodged and not finally determined before the commencement of DCP 2012 Amendment 3, to be determined as if DCP 2012 Amendment 3 had not commenced. The relevant provision regarding mechanical parking devices in DCP 2012 Amendment 2 has to be considered as a fundament element or a focal point of the decision making process (Zhang v Canterbury City Council (2001) 51 NSWLR 589 [75]) and I accept the Council’s submission that the relevant provision regarding mechanical parking devices in DCP 2012 Amendment 3 must also be taken into consideration in the decision making process.

23. I accept Dr Marten’s criticisms of the basement layouts, that the approved development and the proposal are far from optimal. The site is relatively small and narrow with a width of 12.28m, and with no minimum site area requirements in LEP 2012 for a substantial mixed use development in the B5 zone, the basement parking was always going to be difficult to resolve and dependent on a car lift to provide the required parking accommodation over two levels.

24. I have given some weight in my deliberations to the fact that the Council has not raise any issues in regard to the addition of two one bedroom units to the development, units 17 and 18, and that the only issue Council raised in relation to the addition of residential accommodation is to the provision of additional car parking spaces through the introduction of car stackers in the basement.

25. I accept the agreed evidence of the experts that the car lift is workable and I accept Mr Corbett’s evidence that the increased internal width dimension of the car lift allows for a reduction in the aisle width below 5.8m.

26. In considering all of the evidence before me, I am satisfied that the proposal in the modification application is acceptable, if not ideal, because it achieves the required parking accommodation, the increase in traffic generation when compared to the approved development is negligible, the waiting times are tolerable and the vehicle swept paths for a B85 and B99 vehicle demonstrate that compliant access can be achieved.

Conditions of consent

27. The parties disagreed on whether condition 11 should impose a requirement for the car lift and car stackers to be serviced at 3 monthly or 6 monthly intervals. According to the Council, the mechanical devices should be serviced at 3 monthly intervals. I accept the applicant’s submission that a 6 monthly interval for the servicing of the mechanical parking devices is acceptable.

28. The applicant objects to the following conditions of consent inserted by the Council following my direction to the parties to file the conditions after the hearing and to highlight any conditions not agreed.

.

46.    The vehicular access and parking facilities shall be in accordance with Australian Standard AS 2890.1"Off-street Parking Part 1 - Carparking Facilities". In this regard, the plans submitted with the construction certificate must include the following:

a)   The car parking facilities must be appropriately line marked and signposted in accordance with the requirements of Section 4 of AS/NZS 2890.1-2004.

b)   The aisle width measured from the finished surface of the basement wall to the outmost structure of the car lift must be a minimum 5.16 metres for the entire length of the car lift.

c)   The aisle width measured from the finished surface of the basement wall to the outmost portion of the proposed car stacker must be a minimum 6.29 metres to accommodate the non-compliant blind aisle of the end car space of the car stacker.

The design must be certified by a suitably qualified Civil Engineer with NER registration with the Institution of Engineers Australia and be provided to the Principal Certifying Authority prior to the issue of a Construction Certificate.

47.    A Works-As-Executed Plan of all basement levels, completed by a Registered Surveyor, must be submitted to the Principal Certifying Authority and Canterbury-Bankstown Council’s Development Engineer, prior to the issue of an Occupation Certificate. The plan must locate and dimension the car lift, and car stacker. All columns, wall thickness, aisle widths, blind aisle, and vehicle spaces must also be located and dimensioned on the plan. The Principal Certifying Authority must be certify that the site has been inspected and has been built in accordance with the Works-As-Executed Plan and approved plans.

29. I accept the Council’s position that conditions 46 and 47 should be imposed on the modified development consent. Condition 46 requires that the construction documentation is in accordance with the proposal and Mr Corbett’s evidence. A Works-As-Executed Plan will provide comfort that the built development complies with the development consent, given the tight dimensions of the basement parking.

Orders

30. The orders of the Court are:

1. The appeal is upheld.

2. Modification Application No. 559/2013/A to modify development consent 559/2013 for the construction of a mixed use development at 702-704 Canterbury Road, Belmore, is approved, subject to the consolidated conditions at Annexure A.

3. The exhibits, other than exhibits 1 and H, are returned.

____________

Susan O’Neill

Commissioner of the Court

47142.17 O'Neill (C) (212 KB, pdf)

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Decision last updated: 17 October 2017