Rosenthal v Sutherland Shire Council

Case •

[2013] NSWLEC 1078

•

08 May 2013

Land and Environment Court


New South Wales

Medium Neutral Citation: Rosenthal v Sutherland Shire Council [2013] NSWLEC 1078
Hearing dates:1-2 May 2013
Decision date: 08 May 2013
Jurisdiction:Class 1
Before: Morris C
Decision:

Appeal dismissed

Catchwords: Development Application, impact of works within road reserve, impact of excavation
Legislation Cited: Land and Environment Court Act 1979; Roads Act 1993;
Sutherland Local Environmental Plan 2006; Environmental Planning and Assessment Act 1979
Texts Cited: Sutherland Shire Development Control Plan 2006;
Building Code of Australia
Category:Principal judgment
Parties:

Thomas Rosenthal
Jo-Anne Rosenthal (Applicants)

Sutherland Shire Council (Respondent)
Representation:

Mr P Vergotis
TressCox Lawyers

Ms J Amy
Sutherland Shire Council
File Number(s):10061 of 2013

Judgment

  1. The Rosenthals sought consent from Sutherland Shire Council to carry out works within a road reserve to facilitate access to a proposed double garage with rooftop garden and WC at the rear of their property No. 110 Bunarba Road, Gymea Bay. The Council has not determined Development Application 12/0944 (application) and the associated application for works within the public road and the Rosenthals have appealed the deemed refusal of the DA. The council has refused a separate application under the Roads Act1993 for works within the road reserve.

  1. The matter commenced as a conciliation conference under the provisions of s34AA of the Land and Environment Court Act 1979 however no agreement was reached, the conference was terminated and a hearing held in accordance with the provisions of s34AA(2)(b)(i).

  1. The issues in the case are whether the impacts of the proposed garage and works within the road reserve are appropriate and consistent with the council's planning controls, whether the point of access to the garage is appropriate and safe and whether there is a more appropriate location for the additional onsite car parking.

The site and locality

  1. The site is located towards the end of and at the last bend in Bunarba Road, a long cul-de-sac that terminates approximately 100m south of the site. It is a sloping, triangular shaped allotment with a frontage of 9.355m to Bunarba Street and a rear boundary of 47.065m to the road reserve of Alkaringa Road.

  1. Vehicular and pedestrian access to the site is off Bunarba Road with the dwelling fronting the road but constructed below road level following the topography of the site. The site has a fall of 18.5m front to rear and slope of approximately 19 degrees. Pedestrian access is also available from the site to a driveway that has been constructed off Alkaringa Road and services one adjoining allotment to the south of the site known as No 51 Alkaringa Road (No 51). That access driveway slopes steeply up from the road, is a single carriageway 2.8m wide and its entry point is at an acute angle to the roadway with steep grades that do not comply with relevant Australian Standards. It is this driveway that would be used to access the proposed garage.

  1. A multi-level dwelling house with detached single car garage and swimming pool is currently erected on the site. The garage provides sufficient setback for a second car to park behind it on a slope from the road. A third area for parking has been formed partly within the site and partly within the road reserve of Bunarba Road and has been fenced so as to designate the use of the parking bay as for residents of the site. An additional parking area sufficient for two vehicles has been constructed within the road reserve outside the fence and is available for general use.

  1. The locality comprises detached dwelling houses in landscaped settings. Those properties on the eastern and southern sides of Alkaringa Road have waterfrontages to Gymea Bay. The roads are narrow and do not provide for parking on both sides of the street and dual lane vehicle thoroughfare.

Background and the proposal

  1. The application was lodged with the council on 1 November 2012 and sought consent for the construction of a detached double garage and rooftop garden. Approval for works within the road reserve of Alkaringa Road under the provisions of s138 of the Roads Act 1993 (Roads Act) was also sought. The Statement of Environmental Effects lodged with the application acknowledges that the works would require tree removal and consent for that to occur is also required.

  1. The plans lodged with the application propose excavation of the site to provide an area of sufficient size for a double garage and a 1.5m concrete apron to link the garage to the existing driveway that services No 51. The garage would have a depth of 6m and width of 6.1m at the frontage to the driveway and 6.6m at its rear. The roof would be concrete and include a 2.22m x 1.48m brick enclosure to house a WC. The applicant advises the purpose of the toilet is to allow use by residents when they are enjoying their garden. The plans show rockeries and sleeper walls forming garden beds on the roof of the proposed garage. A 300mm high concrete upturn is shown around the perimeter of the roof to retain the garden. A stairway within the site would provide access from the garage, across the apron to the backyard area and connect to the existing pathways and stairs that traverse the site. The plans did not provide details of retaining walls or balustrading that would be required due to the height of the works and extent of excavation.

  1. The council has refused a separate application under s138 of the Roads Act for works within the road reserve for the following reasons:

  • The existing access proposed to gain access from was constructed by the former owners of No 51 for the sole purpose of gaining access to that dwelling and was not intended to gain access to more than one dwelling.
  • The existing access is 2.8m in width and does not provide for the passing of vehicles;
  • There is excessive excavation proposed within the road reserve which will result in the need for substantial retaining structures;
  • The proposal will result in inadequate sight distance due to the retaining structures required;
  • The proposal will result in vehicles from each of the dwellings conflicting with each other with inadequate provision for passing;
  • Reversal of vehicles from the proposed garage, down gradients in excess of 25%, across the existing driveway adjacent to an unprotected embankment over 5 metres in height is considered unsafe.

  1. In preparation for the hearing, experts in structural, civil and traffic engineering, ecology, landscaping and town planning participated in joint conferences and provided reports in relation to the council's contentions. As a result of these works and discussions held during the conciliation conference, the applicant prepared amended plans that further clarified and altered the location of the development proposed. The Court granted the applicant leave to rely on those amended plans, Exhibits A and B.

  1. The amendments made include the deletion of the proposed toilet, relocation and clarification of the location of proposed retaining walls within the road reserve, increased height of parapet to the garage, relocation of the garage 1.2m to the south of the site originally proposed, lowering the proposed garage floor level by 1.1m with associated additional excavation, provision of balustrading around the rooftop garden and along a portion of the access driveway to the north of the proposed garage, provision of a convex mirror within the road reserve, provision of 6 galvanised steel, concrete filled bollards at 1.2m centres within the road reserve opposite the proposed garage and designation of extent of stairway and retaining walls.

  1. The landscape plan provides for the creation of a rock garden on the roof of the proposed garage, the removal of two eucalyptus trees and replacement planting with four trees, two Angophora costata and two Eucalyptus piperita in the vicinity of the two Eucalypts to be removed. In addition a number of smaller trees and shrubs would be removed to provide for the excavation of the site and the area to the side of the proposed garage is shown as being restored without impacting on the existing tree protection zones of the trees to be retained. Exhibit G shows the location of 5 trees to be removed (Trees 2, 3, 4, 7 and 8) and 3 to be retained (Trees 1, 5 and 6) in the vicinity of the works.

The issues

  1. The council's contentions in the case are:

The application, if approved, would result in two vehicle access points to the site which is contrary to its planning controls;

  • The location of the access point to the garage is unacceptable in terms of vehicles and pedestrian safety;
  • The proposal is unacceptable having regard to the extent of excavation and is unresponsive to the natural landform of the site and is likely to threaten the survival of significant canopy vegetation within the site;
  • There is no demonstrated need for the development;
  • Resident concerns in relation to safety and obstruction of access, maintenance issues and not appropriate for access in this location;
  • Inadequacy and inaccuracy of information.

  1. Other than the last contention, part of which has been resolved through the amended plans, the council pressed all of the contentions.

The planning controls

  1. The site of the garage is within Zone 1 - Environmental Housing (Environmentally Sensitive Land) under Sutherland Local Environmental Plan 2006 (LEP). The relevant objectives of the zone are:

(a) to allow development of a scale and nature that:
(i) complements the natural landscape setting of the zone, and
(ii) protects and conserves existing vegetation and other natural features of the zone,
(b) to limit development in the vicinity of the waterfront so that the environment's natural qualities can dominate,
(c) to minimise the risk to life, property and the environment by restricting the type, or level and intensity, of development on land that is subject to either natural or man-made hazards,

  1. The proposed use is permitted with consent in Zone 1, being an ancillary structure to the dwelling house.

  1. The road reserve is within Zone 23 - Road and the objectives of that zone are:

(a) to provide a road network to serve the local and regional needs of the community,
(b) to provide facilities to serve the needs of cyclists, pedestrians, buses and motor vehicles,
(c) to provide for sustainable transport modes.

  1. Consent is not required for the purposes of a road or pedestrian access in Zone 23.

  1. Development standards contained in clauses 33 (building height), 35 (building density) and 36 (landscaped area) are complied with by the proposed development. Clause 48 contains general urban design provisions and states:

The consent authority must not consent to development unless it has considered the following matters that are of relevance to the development:
(a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained by the proposed development,
(b) the extent to which any proposed buildings are designed and will be constructed to:

(i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and

(ii) contribute to the desired future character of the locality concerned,

(c) the extent to which recognition has been given to the public domain in the design of the proposed development and the extent to which that design will facilitate improvements to the public domain,
(d) the extent to which the natural environment will be retained or enhanced by the proposed development,
(e) the extent to which the proposed development will respond to the natural landform of the site of the development,
(f) the extent to which the proposed development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas,
(g) the principles for minimising crime risk set out in Part B of the Crime Prevention Guidelines and the extent to which the design of the proposed development applies those principles.

  1. Clause 51 requires a consent authority to consider ecologically sustainable development prior to any consent being granted and, of particular relevance to this case, the provisions contained in subclause (e), the extent to which the proposed development will retain and enhance the natural environment.

  1. Clause 53 is another prerequisite to consent being granted and requires a consent authority to consider relevant matters of transport accessibility, traffic impacts and car parking as follows:

(c) the extent to which appropriate levels of car parking will be provided in connection with the development,
(d) the extent to which walking, cycling and the use of public transport have been or will be encouraged,
(e) the design of proposed car parking areas and access to them.

  1. Whilst consent under the Environmental Planning and Assessment Act 1979 (EPAAct) is not required for the works within the road reserve, approval of the activity under s138 of the Roads Act is required. S111(1) of the EPAAct vests in a determining authority a duty to consider environmental impact when it is assessing an application for an activity and states:

For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.

  1. Sutherland Shire Development Control Plan 2006 (DCP) applies to the site and relevant chapters are Chapter 3: Urban Design, Chapter 4: Natural Resource Management and Chapter 7: Vehicular Access, Traffic, Parking and Bicycles.

  1. Part 6 of Chapter 3 relates to Landform and recognises the natural topography and landform features as making up a fundamental part of the character and attractiveness of the area and, in order to contribute the the quality and identity of the area, requires new development to respect landform and natural settings and be designed so as to minimise impacts to natural land forms and allow natural qualities to be the dominant elements of its setting. The objectives of the part are:

a. ensure development responds to the natural landform of the site
b. minimise the visual impact of new development, particularly when viewed from waterways, bushland, open space and the public domain
c. minimise earth works so as to maintain the existing landform and protect the integrity and stability of geological elements in the vicinity of the site
d. minimise the removal and disposal of spoil from sites
e. minimise interruption and alteration of groundwater levels and flows
f. minimise impacts on surrounding vegetation and provide increased opportunities for tree retention, including trees on neighbouring properties.

  1. Additional controls for dwelling houses are:

1. The depth of excavation must not exceed 1m below the ground level and the depth of fill must not exceed 1m above ground level.
2. The maximum area of the site to be affected by cut and fill must not exceed 60% of the building footprint.
3. Clauses 1 and 2 above do not apply to steeply sloping sites where:
a. alternative design solutions have been explored and presented to Council showing no feasible solution to excavation is available, and
b. the actual extent of the excavation has been minimised, and
c. there is unlikely to be disruption, or detrimental effects on existing drainage patterns, vegetation, sedimentation and soil stability in the locality, and
d. the design is a sensitive solution to the constraints of the site.

  1. The site is located within the Greenweb Core under its Greenweb strategy, which is detailed in Chapter 4. The Greenweb comprises core areas, support areas and restoration areas. The Core areas are areas of high significance to the sustainability of the Greenweb as they contain key habitat areas, key linkages and threatened species or endangered ecological communities. These key habitats are of a size that maintains their viability and are generally larger than 3.5ha. the objectives of the section are:

a. to prevent direct loss of habitat in core and support areas by requiring the retention or restoration of areas of habitat in a size and configuration that will enhance long term sustainability.
b. to prevent fragmentation of bushland by requiring the landscaped component of a site to function as a wildlife corridor, linking proximate areas of core habitat.
c. to improve the function of riparian zones and foreshores as natural areas so that they provide linkages and corridors between areas of habitat.
d. to minimise weed invasion and spread by requiring appropriate landscape treatment of developments within Greenweb areas.
e. to require revegetation of habitat or corridor, so as to compensate for detrimental impacts accruing from the development of land.
f. to utilise landscaped area to re-establish corridors in urban areas through the establishment of canopy and groundcover links across properties.

  1. Chapter 7, Part 1 requires the provision of two on-site parking spaces for each dwelling house with the spaces to be located behind the building alignment. Vehicular access provisions are contained in Part 2 of the DCP and the objectives of the part are:

a. maximise safety for residents and visitors to the development
b. minimise potential conflicts between pedestrians and vehicles in the design and use of driveways, roadways and footpaths, and by separating pedestrian and vehicles movements
c. minimise the impact of noise and glare from vehicle movements on dwellings within or external to the site
d. optimise traffic flows and public safety, where sites have frontage to more than one classified road or laneway the most appropriate road is used for vehicle access
e. ensure that the most appropriate access point is used to optimise traffic flows, public safety and preserve kerbside parking.

  1. In addition, Part 2.b.1 requires:

1. Where development has two (2) or more road frontages, vehicular access shall be from the lowest order road shown on Sutherland Shire Council's Road Hierarchy Map.
2. Where a site has more than one road frontage, an applicant may make a submission to Council to gain access from the higher order classified road shown on Sutherland Shire Council's Road Hierarchy Map. The submission shall demonstrate that the proposed access provides safe and convenient access, supports the defined road hierarchy, that the proposed access location fits well within the surrounding streetscape and the proposed access location will not have any negative consequences for adjoining landowners.
3. Where a development is on the lower side of the roadway or where basement car parking is proposed, the driveway is to be a maximum grade of 5% for 3 m immediately inside the boundary to ensure driver visibility.

  1. Bunarba and Alkaringa Roads are both local roads under council's Road Hierarchy Map.

  1. Additional controls for dwelling houses require that such development shall provide a single (combined entry and exit) vehicular crossing width of 3.5m in the road reserve.

  1. Draft Sutherland Local Environmental Plan 2013 (draft LEP) has been exhibited and would zone the land on which the proposed garage is to be located and the road as E3 - Environmental Management. The E3 zone objectives are similar to those of Zone 1 and include:

· To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.
· To provide for a limited range of development that does not have an adverse effect on those values.
· To allow development of a scale and nature that maintains the predominantly natural landscape setting of the zone, and protects and conserves existing vegetation and other natural features of the land.
· To limit development in the vicinity of the waterfront so that the environment's natural qualities can dominate
· To protect and restore trees, bushland and scenic values particularly along ridgelines and in other areas of high visual significance.
· To minimise the risk to life, property and the environment by restricting the type, or level and intensity of development on land that is subject to natural or man-made hazards.

  1. The proposed garage would be permitted with consent under the provisions of the draft LEP and approval under s138 of the Roads Act would also be required for the works within the road reserve.

The evidence

  1. The hearing commenced on site and evidence was heard from a number of residents, some opposing the proposed development and others having been informed of evidence within the joint planning report that goes to an alternate proposal for additional garaging on the site off Bunarba Road, objecting to that hypothetical proposal. The issues raised in opposition to the application before the Court were presented by residents of Alkaringa Road including the owner of the adjoining land, No 51 Alkaringa Road (No 51) which utilises the driveway that would be used for access to the garage. That owner demonstrated the difficulties he experiences using the driveway due to its grading, curvature and sight lines. The issues raised are summarised as follows:

  • Site already has an access point, applicant doesn't live in Alkaringa Road;
  • Additional traffic;
  • Existing driveway is unsafe, steep and has resulted in damage to vehicles, vehicles being stuck and requires unsafe reverse movements within a narrow road or utlilisation of private driveways;
  • Embankment is unsafe, eroded, trees have fallen and accessway becomes slippery when wet;
  • Loss of trees and vegetation;
  • Existing driveway is already being obstructed by persons associated with No 110 Bunarba Road (No 110) and police have had to be called on a number of occasions to allow access to No 51, concerned this would occur more often if residents and visitors used the access proposed;
  • Driveway is being maintained by the owners of No 51 who have to regularly clear it of debris which washes down from No 110;
  • Owners of No 51 have to reverse all the way down the driveway so safety concerns due to restricted sightlines.

  1. Four residents of Bunarba Road spoke against a hypothetical proposal that involves a garage or carport being constructed off Bunarba Road. That is despite no plans being available for them to base their comments on and no proposal being put by the applicant or council other than an option raised as part of the Joint Planning Report, Exhibit 4. The residents raised the following concerns:

  • Tandem garage would look ugly from the street and other properties, will create an imposing structure that is out of character in the street;
  • Views will be affected;
  • Will impact on adjoining driveway;
  • Tandem garage unsuitable for the street as reversing in and out is already a problem that will be exacerbated;

  1. Expert evidence was presented by:

Applicant   Council

Town Planning                    Kim Johnston  Raymond Elliott

Engineering   Craig McLaren (traffic)   Roger Barnes

Rod Broune (civil & structural)

Trees, landscaping            Dr Daniel McDonald   Mr Geoff Doret

and ecology   (ecosystems/landscape design)

 Mr Andrew Hoff (arboriculture)

Ecology/trees/landscaping

  1. The experts agreed that the site of the proposed garage should be relocated 1.2m to the south of the location identified on the original plans to provide for a better long-term environment for Tree No 5, the smooth-barked Angophora costata. They also agree that Trees 7 and 8, both Sydney Peppermint Eucalyptus piperita will be removed by the proposal, that T8 is in poor health with little longevity and T7 is in fair health with better long term prospects. They agree that the proposal will retain some of the natural vegetation and other natural features of the site, that there will be some impact on the natural environment confined to the garage footprint, retaining wall, new entry driveway and possible additional works to the existing carriageway and that these impacts would be compensated by tree planting to soften the impact of the proposed garage and the proposed location protects the most significant landforms on the site. They conclude that the location of the garage in accordance with their recommendations would have no significant adverse impact on the natural landform or local ecology of the site.

  1. During the on site conference, these experts conducted further investigation of the likely impact of the deeper excavation works required for the garage as now proposed, stairs, retaining walls and adjacent sub-soil drainage works on Tree 5 and agreed that the impact would be acceptable and not affect its long term viability.

  1. The experts were not required for cross-examination.

Town planning

  1. The experts disagree whether having access from more than one road is appropriate and consistent with the council's planning controls. Mr Elliott says the controls do not provide for two access points for one dwelling and says that the proposal does not minimise potential conflicts between pedestrians and vehicles or ensure the most appropriate access point is used to ensure public safety as required under the DCP objectives in Chapter 7, 2.a.1.1(a), (b) and (e). He says that the existing vehicular access to the site off Bunarba Road has the potential to provide for the development of a tandem garage facility, is the most appropriate vehicle access point for the site and does not require a shared access driveway so more readily satisfies the DCP objectives.

  1. Ms Johnston says that variation to the DCP control should be allowed as the second access point is consistent with objective 2.a.1(1) and council has allowed two access points to properties citing dual occupancy developments on corner blocks in Woolooware and Caringbah.

  1. With regard to the extent of excavation proposed and agreed to be up to 6m at the rear of the proposed garage, Ms Johnston says the excavation is reasonable and necessary given the shortfall in car parking spaces on the site and the limited extent of the excavation, being confined to the garage footprint and adjacent apron. She says the majority of natural site features are retained, although some loss of trees will be encountered, that the narrowness of the Bunarba Road frontage and the steepness of the site warrant a variation to the depth of excavation control of 1m as contained in the DCP.

  1. Mr Elliott says the extent of excavation is unreasonable and unnecessary as a more sensitive opportunity exists to provide two spaces off Bunarba Road in a tandem garage facility on reduced street and side boundary setbacks to Bunarba Road thereby making better use of the existing single access point, responding more favourably to the landform by avoiding unnecessary excavation, minimising spoil generation and negating the need to remove five trees and any nuisance caused by concentration of stormwater on the access driveway and retaining the existing environment. He compared the extent of retaining walls required due to the additional excavation and detailed on the amended plans as looking like an entrance portal to a tunnel.

  1. Ms Johnston says that the alternate option suggested by Mr Elliott in the joint conference would adversely affect the amenity of the streetscape and overshadow the existing outdoor area behind the existing garage. She also said that the length of wall on the side boundary may cause future impacts on the adjoining property if it were to be developed.

  1. Alternate hypothetical options were put to the planners by Ms Amy for the council such as a tandem garage and carport arrangement or extending in an easterly direction the existing garage. Mr Elliott said that these were other alternatives that would satisfy the council's planning controls, and not have a huge impact on the streetscape nor affect views from the adjoining property. The purpose of exploring options was to address the requirements of clause 6.b.3.3 of the DCP. These options do not form part of the application however are matters to which the Court would have to consider under s79Ca(iii) of the EPAAct.

Engineering/traffic

  1. Mr McLaren had prepared a plan (Exhibit C) that demonstrated the turning paths of the large vehicle owned by the resident of No 51 and says that, by providing a turning bay at the approximately midpoint of the accessway, the safety of manoeuvres in the driveway is improved and allows forward movements onto and from Alkaringa Road. A total of 6 manoeuvres are required which he says is compliant with AS2890.1:2004 (AS2890). He says, that in accordance with that standard, there is no need to provide a passing bay along the accessway as it would be used by less than three dwellings. Mr Barnes says that safety is paramount and whilst he agrees that it would be safer for the occupants of No 51 to manoeuvre on the new driveway, the 20% grade, 51m long driveway with sight restrictions at the intersection with Alkaringa Road mean that a passing bay should be provided so that no vehicle is required to reverse off site in the event of simultaneous use of the driveway or its use by visitors and service vehicles.

  1. Mr McLaren and Mr Barnes agree that the width of the existing accessway, at 2.8m, is less than the 3m required under AS2890. Mr McLaren says that the works proposed within the road reserve will improve the existing situation for the owner of No 51 and provide a turning bay so that vehicles using the garage could enter and leave Alkaringa Road in a forward direction and the current width of the driveway is workable as a car is only 2m wide, the driveway is low volume/low speed and therefore a low accident risk location. Mr Barnes disagrees and says that it is necessary to provide dimensions in excess of those of a vehicle to allow for clearances, deviation and manoeuvring as well as a factor of safety to allow for all standards of driver. He considers the existing access driveway is unsafe and should not be used by an additional property.

  1. Mr Barnes says that the extent of works within the road reserve, being the retaining walls, hand rails, convex safety mirror, bollards and possible drainage will become the responsibility of the council and the risk associated with those structures is unreasonable in the circumstances of the case as it benefits only one property that already has access in a more appropriate location. Mr Broune says that the retaining walls would be designed to comply with the Building Code of Australia (BCA) and would be designed to withstand likely impact and therefore there is a speculative approach to risk. Mr Barnes is concerned of damage that may be caused by tree roots and in the event that the wall fails, it would be the council's responsibility to repair it and that the cost burden to the community is unreasonable.

Stormwater disposal

  1. It was apparent that the issue of stormwater disposal had not been considered. The council's draft conditions did not address the matter. The planning and engineering experts were asked to consider the issue.

  1. Ms Johnston, in the Statement of Environmental Effects lodged with the application, Exhibit J states at page 40 under the heading Utilities that:

All utilities are available to the site and as a consequence there are no impacts on utilities. Stormwater generated from the small additional area of roof proposed will be discharged to the existing system on the subject site.

  1. Ms Johnston was unable to inform the Court of the location of the existing stormwater lines. Mr Elliott did not know where the nearest stormwater line within council land was located.

  1. Mr Vergotis, for the applicant, advised that on the basis of his client's knowledge, the dwelling house drains to an existing drainage easement within the site to the immediate north of the property. Ms Amy made reference to the title documents for the site that do not indicate the easement benefits the applicant. Mr Barnes says the easement was created to drain Bunarba Road.

  1. Mr Barnes and Mr Broune agreed that the most appropriate solution would be to provide a pipe down and along the western face of the driveway and estimated that a 500mm deep excavation would be required. Mr Broune considered that there was appropriate area available within the road reserve for this to occur without affecting the stability of the bank however did state that this opinion was based on photographs that he had taken rather than considering the matter when on site, particularly in relation to the possible impact on any vegetation that may arise. Mr Barnes said that he had not considered the issue and that the existing erosion observed in the vicinity of a tree at the northern end of the driveway may be exacerbated and need to be underpinned. He did not know the location of the nearest connection point and whether it had the capacity to cater for the additional runoff.

Conclusion and findings

  1. There are two matters before the Court, the first is the development application for the construction of the garage and a 1.5m wide concrete apron, stairs and associated retaining walls and tree removal within the site No 110 Bunarba Road. The second is the construction of the extended concrete apron in front of that garage, additional retaining walls, bollards, safety mirrors and handrails within the road reserve that require approval under the Roads Act. The issue of stormwater drainage has not been resolved and may require further works within the road reserve as suggested by the engineering experts or run through No 110 to whatever drainage line services the existing dwelling.

  1. In regard to the development application, having regard to the evidence and the planning controls, I find that it is contrary to those controls and should be refused. Whilst the site does enjoy two street frontage, the most appropriate means of vehicular access to it is from Bunarba Road. The proposed garage requires extensive excavation of up to 6m, the removal of two large trees and a number of smaller trees and shrubs and is inconsistent with the objectives of the Zone 1 - Environmental Housing (Environmentally Sensitive Land) as it does not complement the natural landscape setting of the zone or protect and conserve existing vegetation and other natural features of the site. The replacement planting deemed satisfactory by the landscape experts will take a considerable time to grow and the height, bulk and scale of the garage, walls and stairs will not complement the natural environment nor does it respond to the natural landform of the site and is therefore contrary to the matters for consideration under the LEP and the controls contained in the DCP.

  1. In relation to the works within the road reserve, I must have regard to the environmental impact of the works. There is no definitive plan to address stormwater disposal and, in view of the existing, unretained batter that runs along the western side of the access driveway, I cannot, on the available evidence, find that there will not be any adverse environmental impacts. Further tree removal may be required and additional retaining structures could also be required. This fundamental issue has not been resolved.

  1. Even is the works can be drained without impacting on the batter, the extent of works required within the public road reserve is a further factor against the proposal, particularly as it is benefiting only one property that has alternate access arrangements. How that is achieved is not a matter that requires determination.

  1. I accept the evidence of Mr McLaren that the works will improve the safety associated with access to No 51 Alkaringa Road however do not consider those benefits outweigh the adverse visual and aesthetic impacts of the high walls, additional hardstand area, structures and tree loss. Accordingly, the application for approval to works within the road reserve should be refused.

  1. The Orders of the Court are:

(1)   The appeal is dismissed.

(2)   Development Application 12/0944 for tree removal and the construction of a garage at 110 Bunarba Road, Gymea Bay is refused and the associated application for approval of works under the Road Act 1993 is also refused.

(3)   The exhibits, other than exhibits A, J and 3, can be returned.

_______________________

Sue Morris

Commissioner of the Court

**********

Decision last updated: 08 May 2013

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

2