Northbridge Developments Pty Limited v Willoughby City Council
[2013] NSWLEC 1088
•23 May 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Northbridge Developments Pty Limited v Willoughby City Council [2013] NSWLEC 1088 Hearing dates: 8,9 May 2013 Decision date: 23 May 2013 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld.
2. The application to modify Development Consent DA 2006/640 for the demolition of existing buildings and construction of a mixed use development at 154-156 Sailors Bay Road, Northbridge is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits 5, K and M.
Catchwords: MODIFICATION: provision of additional parking in basement levels - whether additional parking spaces excessive Legislation Cited: Building Code of Australia
Environmental Planning and Assessment Act 1979
Uniform Civil Procedures Rules
Willoughby Development Control Plan 2005 as amended
Willoughby Local Environmental Plan 1995
Willoughby Local Environmental Plan 2012Category: Principal judgment Parties: Northbridge Developments Pty Limited (Applicant)
Willoughby City Council (Respondent)Representation: Mr A Perkins, solicitor (Applicant)
Ms M Carpenter, barrister (Respondent)
Colin Biggers & Paisley (Applicant)
King & Wood Mallesons (Respondent)
File Number(s): 10045 of 2013
Judgment
COMMISSIONER: This is an appeal against the decision of Willoughby City Council (the council) to modify an approval on conditions not acceptable to the applicant. Development Consent DA 2006/640 was granted on 8 August 2007 (the 2007 consent) and provided for the "demolition of existing buildings and construction of a mixed use development including 4 ground floor retail/commercial tenancies, 11 x three bedroom residential units and two levels of basement parking for 36 cars" at 154-156 Sailors Bay Road, Northbridge (the site). The development has been constructed, a Strata Plan registered and all residential units occupied and some retail/commercial tenancies occupied.
The subject building is located at the eastern end of the Sailors Bay commercial strip that accommodates a shopping centre, Northbridge Plaza, restaurants and other local retail uses and services. On the opposite side of Sailors Bay Road are single dwelling houses. Adjoining the site to the west are commercial developments. Adjoining the site to the east is a four storey mixed used development that is currently under construction.
The modifications
The modification application seeks:
- alterations to the parking and storage allocations for the existing lower basement level to convert 10 private owner open storage areas (as nominated on the registered Strata Plan as being part of lots 1-3 and lots 5-11) into 10 residential car parking spaces and modification to part of lot 5 to delete a small storage cage and increase the size of that car parking space.
- alterations to the existing upper basement level to relocate the existing bicycle storage racks from being adjacent to the lift to being adjacent to the pump room and provision of a stacked space shown on the amended layout plan as Commercial 21; deletion of a storage area shown as being part of lot 13 on the registered Strata Plan and conversion to common property; and alterations to mechanical ducting.
- installation of horizontal spandrels projecting 1150mm wide x 500mm deep below bedroom 3 window of Unit 1, bedroom 1 window of Unit 6, bedroom 3 window of Unit 7, and bedroom 1 window of Unit 10.
- installation of mechanical ventilation system at lower and upper basement levels.
- installation of new thermal detection and alarm system at ground floor level.
- replacement of existing emergency exit signage located within car park to double the size of the existing signage.
- installation of internal wall wetting sprinklers above the southern windows at ground floor level.
- installation of sprinkler system at top and bottom of car park and mechanical shaft.
The council does not oppose all the modifications sought in the application. The dispute relates only to the alterations to the parking and storage allocations and relocation of some facilities on the basement levels. The council maintains that the proposal (which concurrently seeks to achieve the required fire compliance for the basement levels by reducing the storage areas and increasing the amount of parking for the residential units) is unacceptable as it will result in excessive parking being provided for the development.
Background
The background to the appeal is relevant and is best set out by the applicants town planner, Ms Clare Brown in Exhibit 5, where she states:
Council on 8 August 2007 issued development consent to DA 2006/640 for the Demolition of existing buildings and construction of a mixed use development including four (4) ground floor retail/commercial tenancies, 11 x three bedroom residential units and two levels of basement parking for 36 cars.
On 27 May 2008 the first of three construction certificates was issued by Dix Gardner, Principal Certifying Authority for the development of the site under development consent DA 2006/640. Each of the three construction certificates classified the building for the purposes of the BCA as Class 2, 5, 6 and 7a. The classification of 7a relating to the two levels of basement car parking.
Construction of the development commenced following the grant of the first construction certificate and construction was completed in March 2010 with a final occupation certificate being issued in July 2010. Subsequent to the completion of the building a strata subdivision plan was registered and the lots in the strata scheme sold and the building occupied.
In April 2011 the owners corporation engaged BCA Performance to undertake a compliance fire safety audit. This audit revealed a number of issues in relation to fire safety issue and non-compliances with the BCA. Relevantly the audit identified that the classification of the car park was incorrect and that as a result of the quantum of storage nominated on the construction certificate drawings within the basement (lower basement having in excess of 10% of the floor space as storage area) that the basement car park should have been classified part 7a Car Park and part 7b Storage.
The consequence of this is that as the two levels of basement are considered one compartment then the higher classification of 7b Storage applies to both levels of the basement car parking
AE&D Fire have been engaged to review the classification of the building as nominated by BCA Performance and to advise on what corrective action would be required to be undertaken to achieve compliance with the BCA in terms of fire safety.
Relevant planning documents
The site is within Zone B2 - Local Centre under Willoughby Local Environmental Plan 2012 (LEP 2012) that was gazetted on 13 January 2013. Shop top housing is permissible with consent in this zone with consent. The relevant aim of the plan in cl 1.2(2)(j) is:
(j) for access:
(i) to provide for local and regional transport needs and promote and increase the use of active transport through walking, cycling and the use of public transport, and
(ii) to provide appropriate levels of car parking in connection with the location of development and managing the demand for ancillary car parking, where there is good access to public transport nodes and services, and
(iii) to provide integrated development design of pedestrian and vehicular access, parking, loading and delivery facilities.
Clause 2.3(2) states:
(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
The relevant zone objective is
· To maximise public transport patronage and encourage walking and cycling.
Willoughby Development Control Plan 2005 as amended (the amended DCP 2005) came into effect with LEP 2012. The relevant provisions are Aims of the Plan (Part A.3), Sustainable development (Part C.3), Transport Requirements for Developments (Part C.4) and Specific Controls for Commercial and Shop Top Housing Development (Part E).
The Building Code of Australia (the BCA) is relevant.
At the time the 2007 consent was granted, the site was within Zone 3(a) - General Business Zone under Willoughby Local Environmental Plan 1995 (LEP 1995) and was a permissible use, with consent, as "business premises", "shops including food shops" and "dwellings, or residential flat buildings, attached to other permitted buildings or used in conjunction with other permitted uses".
Willoughby Development Control Plan 2005 (the 2005 DCP) also applied at the time of development consent was granted.
The fire safety evidence
Mr Nathan Halstead, a BCA and fire safety expert provided expert evidence for the applicant. Mr Halstead states that the basement includes both Class 7a and 7b classification under the BCA. The current configuration of the basement represents a Class 7b (i.e. storage) classification of more than 10%, being the designated storage. Therefore, and in consideration of BCA Part A3, the car park attracts a Class 7b classification. In his opinion, the basement levels are a single fire compartment and therefore both levels are considered to have the same classification applying to both levels based on BCA Part Section C. The Class 7b classification requires the higher Fire Resistance Level (FRL) of 240 minutes. The building is constructed to the FRL of a non-sprinklered car park and Class 7a, which requires 120 minutes FRL based on BCA Section C, and in particular Specification C1.1. The basement levels appear to have been constructed to a Class 7a classification without consideration for the fire services required by the BCA when more than 40 vehicles are accommodated. Where more than 40 cars are accommodated in a car park, the BCA under Clause E1.5 and Table E1.5 requires a sprinkler system to be installed.
To rectify the basement to comply with the Deemed-to-Satisfy Provisions (DTS) of the BCA, the car park would require reconstruction of all fire resisting elements to achieve a Fire Resistance of 240 minutes. Additionally, a sprinkler system would need to be installed throughout the car park however this is not the most practical and effective method to resolve this non-compliance. Increasing the fire resistance levels of the building and installing sprinklers will result in extensive construction works and large cost. This would have detrimental ramifications to the owners and it is likely that they would lose floor area and car parking spaces to cater for the new construction and fire services installations.
Mr Halstead states that the most practical and reasonable method to resolve the BCA non-compliance is to adopt a fire engineering solution to address the DTS non-compliances. To demonstrate that satisfactory fire safety can be achieved and through the use of fire engineering modelling and assessment, a Fire Engineering Report has been prepared that demonstrates the Performance Requirements of the BCA can be meet via an Alternative Solution.
Mr Halstead understands that the owners and the developers have both agreed to accept the proposed fire engineering solution to address the BCA non-compliances identified within the car park.
Mr Bruce Gaal, a building surveyor, with the council agrees with the BCA assessment by Mr Halstead and also the proposed fire engineering solution to address the BCA non-compliances.
Car parking - the amended DCP 2005 requirements
Part C.4 provides Transport Requirements for Development. The purpose of Part C.4 is:
The intent of Part C.4 of this Plan is to establish Council's standards and guidelines to:
1. Minimise the adverse environmental effects of car use within the City;
2. Manage the existing and future on and off road car parking in a manner that sustains and enhances the economic and environmental qualities of Willoughby;
3. Encourage the use of public transport in areas close to transport nodes;
4. Encourage alternative modes of transport;
5. Ensure that appropriate facilities are provided for bicycles;
6. Provide for the safe, convenient, and efficient movement and accommodation of vehicles within the City;
7. Ensure that provision is made for a reasonable number of parking spaces for vehicles generated by a development including visitor, employee, service and commercial vehicles;
8. Ensure that vehicular movements and parking do not impede pedestrian traffic safety and efficiency;
9. Ensure that the design of parking and servicing areas and their access is safe and compatible with the best practice standards;
10. Ensure that car parking facilities contribute positively to the public domain;
11. Minimise hard surfaces in order to enhance areas for on-site infiltration of stormwater, where relevant; and
12. Manage demand for car use by employing the principle of travel demand management. Travel Demand Management is intervention (excluding provision of major infrastructure) to modify travel decisions so that more desirable transport, social, economic and/or environmental objectives can be achieved, and the adverse impacts of travel can be reduced. The purpose of travel demand management is to reduce the total amount of travel, minimise the need to expand road systems, reduce the incidents of vehicle crashes, prevent further congestion, reduce air pollution, conserve scarce resources and increase the share of non-car based transport. Increasing the supply of parking can induce a greater number of vehicular trips, which increases congestion, impacting negatively on the city environment.
Part C.4 B provides the opportunity to depart from the car parking rates in Part C.4 and states:
The parking requirements specified in the table below are neither maximum nor minimum rates, but are the rates to be satisfied in any application. Applicants must demonstrate the justification for any departure from parking rates in a Statement of Environmental Effects or Traffic Study.
Council will have regard to the following when considering any departures from the car parking rates as detailed in the table "Schedule of Car Parking Requirements":
1. The size and nature of the development, amount of additional floor area relative to the existing floor area and the parking demand generated;
2. Whether a Green Travel Plan has been provided;
3. Encouraging less use of motor vehicles, especially those developments close to railway stations and major public transport routes;
4. Availability and accessibility of other public parking;
5. Accessibility of public transport and the probable transport mode of users;
6. Proximity to bicycle routes;
7. Existing and likely future traffic volumes on the surrounding road network and the nature of this network;
8. The environmental implications of providing parking with particular regard to vegetation and landscape impacts;
9. Results of a parking survey submitted to Council to justify demand for the proposed use; and
10. The impact of not providing the parking.
Council will consider each application on its merits, taking into account the individual circumstances of the development with regard to site attributes, surrounding character and adjoining land uses. More rigorous standards may be required for developments having significant environmental impact.
Part C.4 E addresses sites located within a railway precinct and on major public transport corridors and states:
For office/business development, attached dwellings, multi dwelling housing and residential flat buildings and restaurants, special rates are applied where the proposed development is located within a railway precinct (approximately 500 metres from a railway station) or on a major public transport corridor (MPTC).
Maps indicating the location of Railway Precincts are attached in Attachment 7. Where any part of a street block falls within the 500m radius or adjoins a MPTC the whole of that block is considered to be included within the railway precinct or on the MPTC.
For the purposes of this Plan, the major public transport corridors (MPTCs) are identified as follows:
· The Pacific Highway south of Albert Avenue, Chatswood;
· Victoria Avenue west of Penshurst Street;
· Willoughby Road;
· Strathallen Avenue;
· Penshurst Street south of Victoria Avenue;
· Sailors Bay Road B2 Local Centre zone;
· Eastern Valley Way.
(Where any part of the street block adjoins a MPTC, the whole of that block is considered to be included as a MPTC)
Part C 4.2 D provides parking rates and relevantly requires:
Attached dwellings, multi dwelling housing and residential flat buildings within Railway Precincts (refer to Railway Precincts maps in Attachment 7) and located on Major Public Transport Corridors (refer to Clause C.4.1-E)
Studio- 0.5 space
1 bedroom- 1 space
2 bedroom- 1 space
3+ bedroom- 1.25 spaces
Visitor spaces- 1 per 4 dwellings
Shop Top Housing
Studio-0.5 space
1 space/ dwelling (other than studios)
Visitor spaces- 1 per 4 dwellings
Car parking - the evidence
Ms Kate Drinan, a town planner, provided evidence for the council and Ms Brown provided evidence for the applicant. They produced a joint report that identified the areas of disagreement. The principal area of disagreement was that the amended proposal provides excessive resident parking and this is inconsistent with the aims and objectives in LEP 2012 and the amended DCP 2005 to promote and increase the use of active transport through walking, cycling and the use of public transport.
It was agreed that the table below represents the approved and proposed parking levels.
Approved
Proposed
- Dwellings (11)
12
22
- Visitors (Residential)
4
4
Commercial Parking
21
21
Total
37
47
Mr Drinan maintains that the appropriate parking rate for Shop top housing is 1 space/ dwelling. Mr Drinan also states that the site is located within a major public transport corridor (MPTC) in Part C.4 1 E of the amending DCP 2005 being the Sailors Bay Road B2 Local Centre zone where the applicable car parking rates applying to the residential component of the development is also 1 space/ dwelling.
At the time of the approval the site was zoned under LEP 1995 and subject to the 2005 DCP where similar controls applied to sites within a MPTC as applies under LEP 2012 and the amending DCP 2005. While the definition of Shot Top Housing did not exist under LEP 1995, a parking rate of 1 space/ dwelling was required for the development. The provision of excessive additional on-site residential parking is contrary to LEP 1995 and DCP 2005 objectives of encouraging the use of alternate modes of transport including public transport. Traffic associated with the development, together with traffic associated with other future high-density development that could provide 2 spaces/dwelling in the surrounding area, could cumulatively, result in an increase in the amount of traffic envisaged under current controls. This would create an additional congestion on the surrounding road network and it is contrary to the overall sustainability objectives of reduced car usage.
Ms Drinan states that there are no grounds to justify the excessive amounts of car parking although during her oral evidence she stated that 1.25 spaces/ dwelling could be applied. For 11 dwellings this would require 13.75 spaces however, in her opinion, there are no exceptional circumstances to warrant the additional 8.25 spaces parking and as such the amount of residential parking is unacceptable.
Ms Brown states that the controls that provide for car parking at a rate greater than 1 space/dwelling better reflect the nature of the residential development on the site, as there are 11 x 3 bedroom dwellings, each with floor areas in excess of 120 sq m. The amending DCP 2005 nominates the site as a MPTC although the site is not within walking distance of any railway station and many other destinations require a change of bus. In the opinion of Ms Brown, the site could not reasonably be described as being on a MPTC. The applicable rate for car parking for a residential flat building, outside a MPTC, would be 1.5 spaces/+3 bedroom dwelling thereby generating the need for 16.5 spaces and creating a surplus of 5.5 spaces.
Ms Brown maintains that the number of car parking spaces is not excessive and is consistent with the adopted parking rate for other northern Sydney councils. The council through its planning controls seeks to encourage and facilitate modes of transport other than motor vehicles and these will have differing levels of success based on the location of the development site, the form and frequency of alternate modes of transport both public and private, and personal needs for motor vehicles for work, recreational and other purposes. In this case, the provision of two car parking spaces for each dwelling would manage the current and future demands for resident parking in circumstances where there is an increasing redevelopment in the Northbridge locality, time limited on-street parking and councils decision to not introduce a resident parking scheme in the locality. The proposed parking will also alleviate any potential pressure on limited available on-street parking and the adjoining residential areas where there is unrestricted parking.
Expert evidence was also provided for the applicant by Dr Tim Brooker, a traffic engineer. During cross examination of Dr Brooker, it was revealed that the "Assessment of Traffic and Car Parking Impacts" that was included in the documentation provided with the modification application (and which was replicated, in part, in his statement of evidence) contained a notation that stated that the Final Version of "Assessment of Traffic and Car Parking Impacts", "Dated 17/05/2012" was "Prepared by David Kelly" and "Reviewed by Brett McLennan". Mr Kelly is a town planner employed by the same company as Dr Brooker and on further enquiry, Mr Kelly was associated with the development on the site.
The parties were requested to make submissions on whether the requirements of an expert under Division 2 of Pt 31 of the Uniform Civil Procedures Rules (UCPR) and the Expert Witness Code of Conduct had been complied with, given the involvement of Mr Kelly. Mr Perkins, for the applicant, submitted that the evidence of Dr Brooker was untainted as Dr Brooker stated that he had prepared the "Assessment of Traffic and Car Parking Impacts" himself although Mr Kelly had reviewed the document. His expert report acknowledged the UCPR and the Expert Witness Code of Conduct. Dr Brooker also provided an appropriate response to the question asked by the Court of an experts obligations in preparing an expert report by stating that any evidence must be impartial and that an expert has an overriding duty to the Court.
Ms Carpenter, for the council, did not seek to have Dr Brookers evidence made inadmissible but raised concern over the reliance on data provided by Ms Brown on parking requirements for other councils that was found to be inaccurate, in part. Ms Carpenter also raised some concern over discussions between Ms Brown and Dr Brooker prior to the joint conferencing of the town planning experts.
Following the submissions, I am satisfied that the evidence of Dr Brooker satisfies the requirements of the UCPR and the Expert Witness Code of Conduct. The concerns over the data provided by Ms Brown on parking requirements for other councils can be simply addressed by not considering this data. In any event, I am not satisfied that it is overly relevant in determining the appropriate levels of parking in the Willoughby local government area given the existence and requirements in LEP 2012 and the amending DCP 2005. On the matter of discussions between Ms Brown and Dr Brooker prior to the joint conferencing of the town planning experts, I am satisfied that this raises no issues that would be contrary to the requirements of the UCPR and the Expert Witness Code of Conduct.
Dr Brookers evidence addresses the criteria in Part C.4 of the amending DCP 2005. He considers the effect of the proposal on each criteria and determines the nature of the impact. The impacts range from "positive" and "beneficial" to "minimal" and "no impact". He concludes that there would be no adverse traffic or parking effects in the locality from the proposed additional residential car parking at the site under any of the ten criteria identified in Part C.4 of the amending DCP. Rather, there would likely be beneficial impacts from the proposal in terms of mitigating the demand for public on street car parking in the locality, on Sailors Bay Road in particular, from the higher provision of off street car parking at the subject site.
In his assessment, there is no indication that the council has considered any of the practical implications or potential benefits to the site residents of the proposed additional residential car parking. The council has effectively applied the same residential car parking standard to this development as it would apply to a comparable development within the Chatswood CBD, which is a metropolitan centre of much greater commercial significance and accessibility to both bus and rail based public transport services than Northbridge.
Findings
In considering the modification application, the appropriate plans to consider any modification against are the approved construction certificate plans, approved by Dix Gardener. According to Ms Brown, three sets of construction certificate planes were approved although only one set was provided at the hearing. These comprised a single sheet of the upper and lower basement levels with the notation "Approved - Dix Gardener Pty Ltd" and dated 24 November 2008. Also included in the bundle of plans that became Exhibit 7, were the upper and lower basement levels of the 2007 consent plans, the approved Strata Plan, the modification application submitted to the council and the amended modification plan relied on by the applicant at the hearing.
The effect of the construction certificate plans effectively redistributes the area from the two large storage areas shown on the 2007 consent plans in the north-east and north-west corner of the lower basement area. These storage areas were largely distributed to areas adjoining car parking spaces and did not indicate any fencing or caging of these areas so based on the construction certificate plans, the new storage areas were approved as open storage. The approved Strata Plan largely replicates the allocation of car parking and storage areas as shown on the construction certificate plans.
The modification application seeks to convert the storage areas into a car parking space by increasing the width of what was storage area and reducing the width of the adjoining car space. Conveniently, the space to accommodate the new two car parking areas between the existing columns satisfies the council's dimensions for car parking spaces.
The centre of the dispute is the classification of the upper and lower basement levels of the building. As I understand, the basement levels were incorrectly classified in the construction certificate plans as Class 7a under the BCA and the building was constructed to this standard. Following further examination it was found that the appropriate classification was Class 7b for the upper and lower basement levels and consequently, the building did not satisfy this classification because the storage areas on the lower basement level exceeded 10% of the floor area.
The applicant seeks to address this misclassification by converting the storage areas shown on the construction certificate and Strata Plan to car parking (but still satisfy the council requirements for storage areas) and because there are in excess of 40 spaces over two levels, adopt the fire engineering solution proposed by Mr Halstead. The council maintains that alternative solutions are available to satisfy the BCA that do not need the additional car parking spaces proposed in the modification application.
In considering the critical issue of whether additional spaces should be provided, I am satisfied that the applicant's approach is reasonable for a number of reasons.
First, Ms Drinan and Ms Brown disagreed on the number of additional car spaces that were provided in the modification application. The dispute centred on the amount of spaces required under the 2007 consent. Ms Brown maintained that 1.5 spaces/dwelling is reasonable for the reasons set out earlier in the judgment whereas Ms Drinan maintained that 1.25 spaces/dwelling could be justified but 1 space/dwelling was required by the 2007 consent. This provides for a surplus of 5.5 and 8.25 spaces, respectively.
In my view, the different approaches are not critical to whether the additional spaces should be allowed. In any event, 1 space/dwelling was required in the 2007 consent (although the 2007 consent provided for 12 spaces for the 11 dwellings).
Second, and while the amending DCP provides car parking rates at Pt C.4.2, Pt C.4.1 B provides the opportunity to depart from these rates. Pt C.4.1 B states, in part, that the parking rates "are neither maximum or minimum rates" and "Council will consider each applications on its merits, taking into account the individual circumstances of the development with regard to site attributes, surrounding character and adjoining land uses." The criteria for considering a departure from the defined parking rates are within the clause. In this case, Ms Drinan did not address the criteria but still maintained that there were no exceptional circumstances to warrant the additional car spaces.
Dr Brooker addressed each of the 10 criteria in Pt C.4.1 and concluded that there would be no adverse traffic or parking effects in the locality from the proposed additional residential car parking at the site under any of the 10 criteria identified in Part C.4.1 of the amending DCP. While not all of the criteria are relevant, I accept Dr Brookers evidence in relation to:
- 2 spaces/ 3 beroom unit is reasonable given the number of bedrooms and size (Criterion 1),
- while the site is close to a major bus route, the service has limited destinations, such as the Sydney CBD and Willoughby and does not have access to the range of public transport that is available at say, Chatswood (Criteria 3 and 5),
- the availability of other public parking in the area is limited to time restricted on-street parking and retail parking which is not suitable for resident parking (Criterion 4),
- the area has limited cycle routes and there is limited attractive, safe and convenient routes for destinations, such as North Sydney (Criterion 6),
- the parking will not impact on existing and likely future traffic volumes in the area (Criterion 7), and
- there will be a beneficial impact on surrounding residential areas as any overflow parking will be contained on site (Criterion 10).
Third, I agree with Dr Brooker that even though Part C.4 E addresses sites located on MPTC, it does not necessarily follow that all the corridors identified in the clause should have the same requirements. It is clear that "Sailors Bay Road B2 Local Centre zone" has access to a bus service that provides a good level of service to some locations but not to the same extent as "The Pacific Highway south of Albert Avenue, Chatswood" where access is available to Chatswood where there are bus and rail interchanges. In this context, it makes sense to have Pt C.4.1 B so that there is the opportunity to depart from the identified parking rates based on merits and taking into account the individual circumstances of the development and its location.
Fourth, the controls in Part C.4 must be read together. Ms Drinans evidence focussed almost singularly on objectives in of Part C.4, such as:
1. Minimise the adverse environmental effects of car use within the City;
.
12. Manage demand for car use by employing the principle of travel demand management......
However, it is also necessary to consider other objectives, such as:
2. Manage the existing and future on and off road car parking in a manner that sustains and enhances the economic and environmental qualities of Willoughby;
6. Provide for the safe, convenient, and efficient movement and accommodation of vehicles within the City;
7. Ensure that provision is made for a reasonable number of parking spaces for vehicles generated by a development including visitor, employee, service and commercial vehicles;
Having had regard to the relevant zone objective pursuant to cl 2.3(2), and for the reasons set out in the Findings in this judgment, there is no reason to refuse development consent.
Fifth, and even though I have found the surplus spaces to be acceptable, I also accept that there is a public interest in having a permanent solution given the non- compliance with the BCA in terms of fire safety. At present, the lower basement has approval under the construction certificate the and Strata Plan provides for one car parking space and an adjoining open storage area for the dwellings, in most instances. The extent of the storage area creates the non- compliance with the BCA in terms of fire safety. As the area of lower car park dimensions and area are established by the 2007 consent, the construction certificate and the Strata Plan, the current proposal is a practical solution that will give the owners comfort and not require the council to continually inspect the site for breaches of the BCA for excessive storage or to monitor the basement levels to see if there are more than 40 cars. In practical terms, and as observed on the site inspection and confirmed by the modification plans, two car parking spaces can be located between the columns that support the building even though part of the area is shown as storage.
Orders
The orders of the Court are;
1. The appeal is upheld.
2. The application to modify Development Consent DA 2006/640 for the demolition of existing buildings and construction of a mixed use development at 154-156 Sailors Bay Road, Northbridge is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits 5, K and M.
G T Brown
Commissioner of the Court
Decision last updated: 23 May 2013
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