Sarkis Developments Pty Limited v Parramatta City Council

[2006] NSWLEC 424

Land and Environment Court

of New South Wales

CITATION:	Sarkis Developments Pty Limited v Parramatta City Council [2006] NSWLEC 424
PARTIES:	APPLICANT Sarkis Developments Pty Limited RESPONDENT Parramatta City Council
FILE NUMBER(S):	10090 of 2006
CORAM:	Moore C
KEY ISSUES:	Development Consent :- Appeal against condition
DATES OF HEARING:	24 April and 3 July 2006
EX TEMPORE JUDGMENT DATE:	07/03/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr D Baird, solicitor Maddocks Solicitors RESPONDENT Mr C Gough, solicitor Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

3 July 2006

10090 of 2006 Sarkis Developments Pty Limited v Parramatta City Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 This is an appeal against a condition of Development Consent DA/42/2004 granted by Parramatta City Council (the council) on 12 January 2006, concerning development application for a proposed block of townhouses at 2 Brothers Street and 1-3 Quarry Road, Dundas (the site).

2 I originally attended the site for an on-site hearing on 24 April during which I heard evidence from residents of Brothers Street concerning the impact that they believed that the proposed development would make on their properties as a consequence of increased traffic pressures on the street. As presently designed, Brothers Street permits travel in a southerly direction to join Kissing Point Road and, is on the evidence of the residents, used at the present time as a rat-run to avoid traffic lights and to take a short cut to Kissing Point Road.

3 The council, in response to those concerns, had imposed the contested condition that the entrance/exit to the development be onto Kissing Point Road, a position resisted by the Roads and Traffic Authority (the RTA) for a variety of reasons, which from what I saw on the view, appeared to be well-founded.

4 The council did not express an opinion as to the appropriateness or otherwise of the entrance/exit from the development to Quarry Road – being the road to the east of the site; Brothers Street being the road to the west with Kissing Point Road running along the southern side of the site.

5 During the course of the inspection, I suggested to Mr Baird, solicitor for the applicant, and Mr Gough, solicitor for the council, that a mid-point closure to Brothers Street providing back to back cul-de-sacs would have the beneficial effect of providing a secure and limited entry to the development whilst at the same time resolving the concerns of the local residents about rat-running traffic.

6 That proposal was adopted by both the applicant and the council (on a preliminary and without prejudice basis pending the detailed design) as was it adopted on a similar basis by Mr Ian Lovelock, who had attended the site to give evidence during the course of the on-site hearing, in his capacity as the Road Network Leader West of the RTA

7 As that suggestion was received enthusiastically by all relevant parties, I adjourned the proceedings to permit such a plan to be prepared and publicly displayed – the council having indicated that its view was not merely should such a plan be displayed to those previously notified but because of the wider potential consequences of the closure of Brothers Street, it should be notified to a wider catchment.

8 That public consultation process has now been undertaken and there have been no submissions received by the council opposing the proposed closure of Brothers Street and the creation of back to back cul-de-sacs (with an appropriate form of limited heavy vehicle access for emergency purposes and service vehicle purposes such as garbage collection through the closure element).

9 I have examined the plans which have been tendered and am satisfied that the traffic management plan which has been provided, satisfies those requirements and that the detailed traffic plan, being the document detailing the proposed closure, appropriately reflects that.

10 The parties have agreed to the conditions and there is no dispute with respect to them. I have this morning received a facsimile sent by the RTA indicating that the proposed partial closure of Brothers Street, Dundas has been approved, on 27 June, by the Acting Director Traffic and Transport of the Authority.

11 Therefore, subject to me dealing with a number of matters contained in a statement, tendered this morning, made by Mr Richard Searle, the Traffic and Transport Services Manager of the council, there is nothing which stands in the way of me approving the application (as amended with the closure of Brothers Street).

12 Mr Searle’s statement notes that there are three significant benefits to be obtained from the proposed road closure. They are:

• the reduction of traffic in Brothers Street;
• removal of the conflict between traffic from the development and other traffic in Brothers Street; and
• removal of the condition requiring access from Kissing Point Road.

13 To those three benefits, I would add a fourth benefit – the removal of the possibility, which I have no doubt would be perceived as a threat to the residents of Quarry Road, of an access way to the development being constructed to that street if the access to Brothers Street were to be denied.

14 Mr Searle points out that there would be, in his view, three disadvantages.

15 The first relates to the left turn out arrangements at Kissing Point Road that would mean that some motorists seeking to access that area would have to enter another street, undertake a U-turn and turn back.

16 The present position is that there is no left turn into Brothers Street, only left turn out at Kissing Point Road, and there already is, as a necessary consequence of that, some U-turn pressure on other streets in the vicinity in any event. I am not satisfied that that Mr Searle’s first reason imposes any unreasonable impact on any other street in the vicinity.

17 The second reason concerns the design of the head of the cul-de-sacs and the suggestion by Mr Searle that a significantly larger turning circle should be provided in each of them for a variety of reasons.

18 The paragraph that deals with that topic is somewhat convoluted in that it appears to canvass a number of reasons rather than one only.

19 The extra elements dealing with the general question of traffic diversion, in my assessment, are appropriately responded to by the fact that in any logical consideration of the road hierarchy in the vicinity of this site, Brothers Street has not, could not and ought not be identified as any form of feeder road and the elimination in the past of left turns into that street in my view, demonstrates a general intention of the council that that be the case. I am not concerned that any issues of traffic transfer arise to be dealt with in these proceedings.

20 As to the design of the head of the cul-de-sac, I am satisfied that the through passage over a high kerb in each of the heads has been provided for emergency and service vehicles renders it an appropriate design – a position obviously concurred in by the RTA as they have also concurred in the design. I am not satisfied that this concern provides any basis to refuse or require modification to the plans.

21 The third point made by Mr Searle is a general one and is in the following terms:

Restricting access to local roads from new developments increases the travel distance for residents of the new developments if there (as said) journey involves right turn movements. If road closures are applied widely, this additional travel in some instances may adversely affect traffic delays at intersections.

22 The RTA has raised no concern of that nature.

23 The effect of this partial closure will be to have a not insignificantly sized new development having its sole access for the new residents effectively (without actually) being directly to and from Kissing Point Road without any of the disadvantages that would have been occasioned had the driveway itself been located to provide direct access.

24 The RTA provided cogent reasons why there ought not be direct access to Kissing Point Road.

25 I am satisfied that the council provided cogent reasons that there ought not be access to either Brothers Street (as presently configured) or Quarry Road as such access would result in unacceptable impacts on the amenity of the local residents.

26 The solution now proposed provides appropriate access for the development and also provides increased traffic protection for the local residents. There are two direct benefits of the proposal with, at worst, marginal and ephemeral impacts in other locations.

27 I am therefore satisfied that, on the basis of the revised traffic plan and cul-de-sac layout plan, I should grant approval to the application subject to the conditions of consent which have been agreed to between the parties.

28 The orders of the Court will therefore be that:

1. the appeal is upheld to the extent of the relevant appealed condition being deleted;
2. the development application will be approved subject to revised conditions of consent; and
3. the exhibits other than Exhibits 2, C, E and G are returned.

Commissioner of the Court