Sawaqed v City of Ryde Council

Case •

[2021] NSWLEC 1070

•

17 February 2021

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Sawaqed v City of Ryde Council [2021] NSWLEC 1070
Hearing dates: 20 January 2021
Date of orders: 17 February 2021
Decision date: 17 February 2021
Jurisdiction:Class 1
Before: Walsh C
Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Development application No. LDA2019/0227 for alterations and additions to a mixed use development at 46 - 48 Blaxland Road Ryde is refused.

(3) The exhibits are returned with the exception of Exhibits: 1, A, B, C.

Catchwords:

DEVELOPMENT APPLICATION – mixed use building – alterations and additions – parking – direct access to classified road

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Roads Act 1993

Ryde Local Environmental Plan 2014

State Environmental Planning Policy (Infrastructure) 2007

Texts Cited:

Australian Standard 2890.1:2004

Land and Environment Court, COVID-19 Pandemic Arrangements Policy (July 2020)

Ryde Development Control Plan 2014

Category:Principal judgment
Parties: Samir Sawaqed (Applicant)
City of Ryde Council (Respondent)
Representation:

Counsel:
S Sawaqed (Litigant in Person) (Applicant)
F Berglund (Solicitor) (Respondent)
M Winram (Solicitor) Transport for NSW, intervening pursuant to s 64 of the Land and Environment Court Act 1979

Solicitors:
City of Ryde Council (Respondent)
Maddocks Lawyers (Transport for NSW)
File Number(s): 2019/404157
Publication restriction: No

Judgment

  1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against City of Ryde Council's refusal of Development Application LDA2019/0227 (the DA).

  2. The DA seeks consent for alterations and additions to the existing mixed use building at 46 - 48 Blaxland Road Ryde, legally identified as Lots 1 to 5 in DP 13652 (the Site).

Site and setting

  1. I rely on the Statement of Facts and Contentions (Ex 1) filed by City of Ryde Council (the Council) for much of the factual material in this and the following section, mindful of a limited number of contested aspects in the Applicant’s reply statement (Ex A).

  2. The Site’s main frontage is to Blaxland Road, which is identified as a “classified road” (Joint Traffic Expert Report, Ex 3, p4). It sits at the south-west corner of that road’s intersection with William Street.

  3. The Site is rectangular in shape with an area of 884m2, road frontage of 29m to Blaxland Road and side boundaries of 30.48m.

  4. Currently existing on the Site is a two storey mixed-use building with a medical centre, dental practice, pharmacy and laundry mart on the ground floor, and a 1st floor attic style residential flat above.

  5. Ten at-grade parking spaces are currently located within the front setback to Blaxland Road, perpendicular to the road alignment. Six spaces are at the rear of the building, accessed from a driveway off William Street.

  6. The land adjoining the Site along Blaxland Road to the west contains a two storey commercial building, which also has car parking in front. Residential apartment buildings are located further west. To the rear (and south) of the Site is a four storey residential apartment building which fronts William Street. Directly opposite the Site at 33-35 Blaxland Road is a two storey community building and Ryde Park. Within the wider surrounding area, Top Ryde Shopping Centre is located approximately 200m north west of the Site.

Proposal

  1. The proposal before the Court comprises alterations and additions to the existing mixed use building comprising the following works:

  1. Demolition of the existing residential unit on the 1st floor and construction of a new first floor level to contain 2 x 1 bedroom units and 2 x 2 bedroom units, plus a doctors’ meeting room as well as staff and store rooms for the medical centre on the ground floor.

  2. Provision of a new roof top communal open space.

  3. Alterations to the existing medical centre on the ground floor with new internal stairs to the new 1st floor doctor's meeting /staff area.

  4. Provision of a lift and garbage storage bay at the rear of the building.

  1. The proposal would provide 15 at-grade parking spaces, 9 spaces within the front setback along Blaxland Road and 6 spaces at the rear behind the building.

  2. No changes to the number of doctors or to the hours are proposed.

Planning controls

  1. The Site is located within a B4 Mixed Use zone under the Ryde Local Environmental Plan 2014 (RLEP). The B4 zone objectives are as follows:

1 Objectives of zone

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To ensure employment and educational activities within the Macquarie University campus are integrated with other businesses and activities.

• To promote strong links between Macquarie University and research institutions and businesses within the Macquarie Park corridor.

  1. The proposal can be defined as "shop top housing" which is permissible with consent within this zoning.

  2. Ryde Development Control Plan 2014 (RDCP) applies to the Site and is a consideration in evidence.

Issues

  1. The major issue in this matter is the proposal’s reliance on use of 9 parking spaces, located in the front setback area and perpendicular to Blaxland Road, a classified road. The concerns are in regard to public safety and traffic efficiency impacts. Secondary issues relate to residential amenity and desired future character compatibility.

Proceedings

COVID-19 Arrangements

  1. Proceedings were conducted under the guidance of the Court’s COVID-19 Pandemic Arrangements Policy, issued 1 July 2020.

  2. In this instance the opportunity was taken to conduct a restricted inspection of the Site and context. Social distancing was employed. The Court hearing was then conducted as a “virtual court room” with the assistance of the “Microsoft Teams” platform.

Documentation filed by Applicant 6 January 2021

  1. On 6 January 2021, the Applicant filed certain documentation with the Court (written material headed “Extracts from Experts Reports” (sic) and a plan). Among other things the documentation signalled that the Applicant sought to modify the application before the Court. My understanding was that the material was served on Council about the same time. The suggested modification involved removal of two of the four proposed residential units on the upper level. At the commencement of the hearing, I asked the Applicant to further outline his intentions with regard to this material. The Applicant confirmed the aspiration to amend the application before the Court. This material was tendered in to evidence as Ex A.

  2. There were some inadequacies in regard to the completeness and legibility of this documentation. There was a single floor plan provided only (ie no elevations or sections). The plan was for the upper level and comprised, what appeared as, a hand drawn mark-up of the current plan before the Court. The essential intention seemed to be to replace the two residential units, in regard to which Council had raised amenity concerns, with other medical floor space. The Applicant indicated the space would serve only the same number of practitioners as had always been proposed. The additional space would augment the services able to be provided and improve the facilities available for those practitioners and clients.

  3. The Applicant did not provide any expert evidence in support of the amendment, but argued the intention was simply to address certain concerns raised by Council. Ultimately, I did not grant leave to amend the application for reasons indicated later. But I did seek advice from the experts in regard to the proposed amendments, which comes up below in the consideration of evidence.

Section 64 appearance by Transport for NSW

  1. In accordance with the provisions of s 64 of the LEC Act, Transport for NSW (TfNSW) appeared before the Court in this matter, filing earlier advice giving notice to this effect. These provisions allow for a legal practitioner or agent of the Crown to intervene, including by examining witnesses and addressing the Court. Solicitor M Winram of Maddocks appeared for TfNSW in the proceedings.

Expert evidence

  1. The following experts provided written and oral evidence to the hearing:

Issue

For

D Pearse

Traffic/parking

Council

P Rathan

Traffic/parking

TfNSW

S McCarry

Planning

Council

  1. It is noteworthy that no experts appeared for the Applicant and no sworn evidence was provided on behalf of the Applicant. The Applicant tendered into evidence certain documentary material prepared by professionals, including: statements of environmental effects prepared by the project architect and a consultant planner, traffic/parking reports and other statements. This material comes up later.

Parking and traffic safety and efficiency

Policy setting

  1. Clause 101(2a) of the State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) states that the consent authority must not grant consent to development on land that has frontage to a classified road unless it is satisfied that, where practicable, vehicular access to the land is provided by a road other than the classified road. The clause is reproduced in full below:

101 Development with frontage to classified road

(1) The objectives of this clause are—

(a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and

(b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.

(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that—

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

  1. The Site has alternative vehicular access to a local road (William Street).

  2. Under s 138 of the Roads Act 1993, consent from the road authority (in this case Council) is required for carrying out work or connecting to a road, among other things. Under subcl (2), such a consent may not be given in regard to classified roads, like Blaxland Road, without the concurrence of TfNSW.

  3. The parking requirements of RDCP are considered below with the evidence.

Evidence

  1. The agreed expert evidence was that the proposal’s reliance on parking in the front setback area with direct access to Blaxland Road (as a busy classified road) was highly problematic. This parking arrangement was seen to be detrimental to pedestrian and traffic movement, in terms of safety and efficiency. Four reasons were cited (Ex 3, p4):

“i) The access configuration is unsafe for pedestrians as it requires vehicles to reverse out over a footpath which is subject to a large volume of pedestrian traffic generated by the surrounding commercial uses in this area plus being in proximity to the major bus stop fronting 68 Blaxland Road and Top Ryde Shopping Centre. Particular noting that a drivers range of vision along the footpath in either direction is severely hampered when reversing from the site.

ii) Blaxland Road is a main arterial road and vehicles entering and exiting the parking spaces pose a road safety risk for through traffic.

iii) The frequency and volume of these vehicle movements impact upon the efficiency of Blaxland Road and the interconnected road network.

iv) The location and width of the driveway access is non-compliant with (Australian Standard 2890.1:2004 [AS 2890.1])” (explained below).

  1. In respect of Australian Standard 2890.1:2004 (AS 2890.1), the parking was provided too close to the corner, and the span of the vehicle crossing was seen to provide a public safety hazard. It was indicated by Mr Pearse that AS 2890.1 provides for a maximum of 5.5m vehicle crossing width, whereas the width of the vehicle crossing here was essentially the entire length of the intended parking spaces.

  2. Mr Pearse also indicated that Council policy was to activate site frontages along Blaxland Road and that the retention of the existing arrangement, with a redevelopment of the Site, was inconsistent with that policy.

  3. Mr Rathan said that as the Site has alternative vehicular access to a local road (William Street), then it was inappropriate for direct access to be provided off Blaxland Road under cl 101(2a) of SEPP Infrastructure.

  4. During the Site inspection, Mr Rathan illustrated his concern in regard to available sight distance. That is, it was shown that due to visual obstructions, the available sightline for drivers of vehicles intending to reverse out of the Site onto Blaxland Road, which was about 30m, would fall well short of the required distance (60m), with consequent traffic safety and efficiency risks.

  5. Further in regard to the RDCP, Mr Pearse calculated that the proposal was short four parking spaces, with the addition of the new floor space (having the effect of providing an additional 3 residential units and increased space for medical purposes).

  6. I requested the experts review the changes proposed in the plans within Ex A. Mr Pearse did further calculations on parking and suggested if the proposal were amended to accord with these plans then the proposal would still be some two or three parking spaces short. Both experts indicated that there was no change to their opinion in regard to pedestrian and traffic safety were those changes to be adopted.

  7. I have also reviewed the expert reports prepared on behalf of the Applicant. The relevant expert report in relation to traffic and parking can be referenced as follows: Park Transit, Parking Assessment Report for Mixed Use Development, 27 June 2019 (Park Transit Report). The report formed part of the Class 1 Application filed with the Court. It is located behind the 13th Tab. The Park Transit Report does not give consideration to the traffic safety or efficiency concerns raised in Council’s contentions. It indicates the proposal satisfies numerical requirements under the RDCP.

  8. The Applicant suggested in his submissions that there was no evidence of any traffic or pedestrian safety incidents and that this demonstrated the current arrangement, which had been in place for many years, was satisfactory. He indicated if there was evidence then it should have been brought forward. I will consider the further submissions of the Applicant, along with Council and TfNSW, when I draw my conclusions.

Amenity

  1. There was a concern, on Council’s part, that the application had not properly responded to the requirements of cl 102 of SEPP Infrastructure. Relevantly, cl 102(3) provides as follows:

… any residential development on a classified road is to ensure that the residential accommodation noise level does not exceed:

(a) in any bedroom in the residential accommodation—35 dB(A) at any time between 10 pm and 7 am,

(b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time.

  1. The residential component of the proposed development was seen to be a type that is sensitive to traffic noise or vehicle emissions. Ms McCarry says the Applicant has not provided sufficient information or measures to ameliorate potential traffic noise or vehicle emissions arising from Blaxland Road.

  2. Concern was also raised in regard to solar access for proposed Unit 3 located on the south side of the building. This unit was also seen to be undersized and have poor cross ventilation.

  3. I also asked Ms McCarry about the planned changes included in Ex A. While these changes addressed earlier concerns in regard to Unit 3, additional problems arose in regard to potential privacy impacts to the residential flat building to the immediate south of the Site among other things, according to Ms McCarry.

  4. I have reviewed statements of environmental effects included in the Applicant’s Class 1 Application, prepared by: (1) Peter Hall Architects, dated June 2019 (Hall Report), and (2) Romic Planning, dated 12 September 2019 (Romic Planning Report) located behind the 2nd and 3rd Tabs respectively in the Class 1 Application.

  5. In regard to the topic of amenity, the Romic Planning Report was a little more relevant. However, its commentary was limited in its examination of the particulars raised by Council in the hearing and could not reasonably be seen as providing detail sufficient to respond to the contentions raised by Council.

Desired future character

  1. In its contentions, Council referenced Part 4.4 of RDCP which is concerned with Ryde Town Centre, within which the Site is located. Part 4.4 is concerned with creating an “attractive, safe, convenient and well used pedestrian environment and public domain” in Ryde Town Centre (ibid, p 10). There are further ambitions to “develop a high quality urban centre” (ibid).

  2. Ms McCarry indicated that the Site is located within the “Main Street Precinct” of Ryde Town Centre. She believed retention of the current setback and presentation to the public domain would not be in keeping with Council’s objectives and desired future character ambitions for this particular precinct. Ms McCarry was concerned that approval would formalise the current configuration which was unsafe and against Council strategic plans.

  3. Both the Hall Report and Romic Planning Report supported the proposal on the basis of its consistency and compatibility with the mixture of commercial buildings and residential dwellings in the surrounds. The Romic Planning Report also saw the proposal as compatible with the desired character for the Blaxland Road corridor, however evidence to support this was brief in this report.

  4. Council indicated there was no approval for the existing parking along Blaxland Road, and that an approval for alterations and additions from November 2008 (LDA 2008/8) had provided for only one parking space at the Blaxland Road frontage, with this space having the capacity for forward direction entry and exit.

Submissions

  1. It seemed to me the Applicant’s oral submissions in this matter in essence comprised four arguments:

  1. The current configuration in regard to parking works satisfactorily now. People using the parking show common sense and caution. There is no evidence of problems with this configuration. Further, there was an approval given for the parking arrangement now in place. This goes back to prior to the Applicant’s involvement with the Site. The Applicant believed he would have been advised if there were problems with this access and parking and this had not occurred until recently. He indicated a former Council representative, whom he named, had advised him some years ago that the Blaxland Road parking was approved.

  2. The Applicant believed the parking arrangement provided considerable service to the community and in fact was of assistance to Council. With the ageing community in the local area, parking with such ready access to shops and services was rare. The Applicant should get credit for the parking facility provided to the community on his Site.

  3. The proposal would upgrade the presentation of the development and provide additional housing to assist those in need.

  1. Were the development proposal not to gain approval, the Applicant would request that he be “left in peace” to continue the long-term arrangement that has been in place satisfactorily for many years.

  1. In regard to traffic and parking, the submissions from Council and TfNSW were similar. This was to rely on the sworn evidence before the Court that did not support more intensive development on the Site, including increased parking demands, when the existing parking configuration was seen as unsafe for pedestrians and liable to cause traffic safety and flow difficulties along Blaxland Road. The reversing movement across the pedestrian footpath and non-compliant sight distance for that reversing movement were emphasised.

  2. Both Council and TfNSW saw the proposal as not overcoming the jurisdictional hurdle provided at cl 101(2a) of SEPP Infrastructure because, while the Site has frontage to a classified road, there is the capacity to provide practicable and safe vehicle access off William Street.

  3. It was indicated that there was no evidence that the existing parking arrangement to Blaxland Road had approval, whereas there was evidence about a recent approval which did other than regularise the current parking arrangement (LDA 2008/8). TfNSW emphasised that there was an obligation on the Applicant to bring forward evidence were his argument, that in fact approval had been secured, to be given weight.

  4. Council indicated that enforcement action is a separate question to whether the current unsatisfactory parking configuration with respect to Blaxland Road should be regularised.

  5. The planning merits arguments was seen to stand on the basis of the evidence provided to the court, with no contrary evidence provided.

Conclusion

  1. I understand the Applicant takes the view that this is a reasonably benign development proposal, concerned with improving the current arrangement for the benefit of regular users while also adding to the accommodation supply. The ambitions are modest and the intention is not to upscale the project such that underground parking could be needed. However, I’m afraid there is much more to it than that.

  2. Of particular concern is the regularisation of essentially what is the existing Blaxland Road parking arrangements. These arrangements cannot be considered as up to contemporary pedestrian safety standards, especially with planning intentions for this area or Ryde Town Centre; or contemporary traffic safety and flow requirements, especially for higher volume traffic arteries.

  3. I accept the evidence of the traffic and parking experts that the proposed parking configuration to Blaxland Road would provide an unreasonable risk to pedestrian safety and traffic safety.

  4. I acknowledge the Applicant’s submissions that there was no evidence supplied to indicate safety or traffic incidents in the Site vicinity. But having viewed cars reversing out of parking spaces along the footpath, onto Blaxland Road, in this busy centre, this may be more good luck than good design.

  5. There was no adequate contesting evidence in regard to the other planning contentions, relating to amenity and desired future character, and I accept Ms McCarry’s evidence in regard to those matters.

  6. The proposal cannot be approved in its current form.

Orders

  1. The Court orders:

  1. The appeal is dismissed.

  2. Development application No. LDA2019/0227 for alterations and additions to a mixed use development at 46 - 48 Blaxland Road Ryde is refused.

  3. The exhibits are returned with the exception of Exhibits: 1, A, B, C.

………………………….

Peter Walsh

Commissioner of the Court

**********

Decision last updated: 17 February 2021

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