Urban Link Pty Ltd v Inner West Council

[2020] NSWLEC 1312

Land and Environment Court

New South Wales

Medium Neutral Citation:

Urban Link Pty Ltd v Inner West Council [2020] NSWLEC 1312

Hearing dates:

18-19 June 2020

Date of orders:

22 July 2020

Decision date:

22 July 2020

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1)   The appeal is dismissed.

(2)   The development application 010.2018.00000203.01 for demolition of existing structures and construction of a one and two storey boarding house with basement parking and associated works at 32 Albert Parade Ashfield is refused.

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

Catchwords:

DEVELOPMENT APPLICATION – boarding house – access – narrow entrance – amenity impacts –heritage conservation

Legislation Cited:

Ashfield Local Environmental Plan 2013

Environmental Planning and Assessment Act 1979

State Environmental Planning Policy (Affordable Rental Housing) 2009

Texts Cited:

Australian/New Zealand Standard 2890.1:2004 Parking facilities – Part 1: Off-street car parking

Australian Standard 2890.2:2018 - Parking facilities, Part 2: Off-street commercial vehicle facilities

Building Code of Australia

Comprehensive Inner West Development Control Plan 2016

Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (23 March 2020)

Category:

Principal judgment

Parties:

Urban Link Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
J Johnson (Respondent)

Solicitors:
Conomos Legal (Applicant)
Inner West Council (Respondent)

File Number(s):

2019/59375

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 appeal brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against the deemed refusal by Inner West Council (‘Council’) of development application 010.2018.00000203.01 (‘DA’). The DA sought consent for demolition of existing structures and construction of a one and two storey boarding house with basement parking and associated works at 32 Albert Parade, Ashfield, legally described as Lot B in DP 303757 (‘site’).

The site and locality

2. I rely on Council’s Further Amended Statement of Facts and Contentions (Ex 1) for much in the way of the descriptive material which follows.

3. The site slopes to the south and away from Albert Parade. It is rectangular in shape with a total site area of approximately 1233m². The site depth is some 40.36m and site width is some 30.63m. It is noteable that the opening to Albert Parade along the northern boundary is limited to some 3.4m in width.

4. The site is about 900m walk from Ashfield Station and a little further to Ashfield’s main shopping centre. Public buses stop in Frederick Street about 120m away.

5. The site is currently occupied by a single storey detached dwelling house. It is adjoined by: (1) a single storey detached dwelling house to the north which is identified as a heritage item of local significance in Ashfield Local Environmental Plan 2013 (‘LEP’); (2) a two storey detached dwelling house to the east; (3) three x single storey dwellings to the south (rear) all of which are within Eccles Avenue Heritage Conservation Area, as identified in the LEP; and (4) a two storey residential flat building to the west.

6. The Albert Parade environs accommodates a range of building scales and styles including one and two-storey detached dwelling houses dating from the original subdivision (circa 1876, Ex 1 par 10) some of which are heritage listed, two-storey inter-war walk-ups, and three to four-storey mid-20th century residential flat buildings. The road reservation of Albert Parade, which accommodates an elongated central landscaped reserve, is itself identified as a heritage item in the LEP. The site itself is not identified as containing a heritage item and is not located in a heritage conservation area.

The proposal

7. The DA as amended seeks consent for the demolition of existing structures and construction of a one and two storey boarding house with 26 boarding rooms (including one manager’s room), of which 10 are double lodger rooms and 16 are single lodger rooms, totalling 36 lodgers. Two single rooms are nominated as “accessible”. The proposal includes a common lounge and an area of common open space, as well as a considerable area around the building perimeter occupied by hard and soft feature landscaping. A number of trees on site would be removed with a smaller number retained. Particulars of replacement plantings are indicated in proposed landscape plans (Ex B).

8. Vehicle and pedestrian access to the site would be provided from Albert Parade. Access across the boundary (3.4m wide) would comprise a shared area, including pedestrian markings, before opening out to the wider available area. Vehicles would use this path to access the basement car park which has 13 car spaces, 6 motorcycle spaces. Bicycle spaces are provided both in the basement and at ground level.

Procedural background

9. The hearing was conducted under the guidance of the Court’s COVID-19 Pandemic Arrangements Policy (23 March 2020), for the purposes of putting into effect the State’s public health orders regarding social distancing mindful of COVID-19. More particularly, the hearing was conducted as a “virtual court room” arrangement under the “Microsoft Teams” platform.

10. In this instance, and as a consequence of the issues raised and submissions from the parties in case management, the Court decided it would be appropriate to conduct a restricted site inspection. There was limited attendance, and social distancing requirements were employed.

Planning Controls

11. The site is located within the R2 Low Density Residential zone of the LEP. The objectives of the R2 Zone are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

12. The proposal is permissible with consent within this zone.

13. State Environmental Planning Policy (Affordable Rental Housing) 2009 (‘SEPP’) also applies to the proposal.

14. The Comprehensive Inner West Development Control Plan 2016 (‘DCP’) also applies and is considered relevantly below.

Issues

15. After the Court’s granting of leave for certain amendments to the proposal, Council pressed four contentions and referenced the need to consider objections raised by neighbours. Although not formally in the contentions, in closing submissions, Council also raised concerns about an intended drainage easement to attend to stormwater outflows from the site. and issues relating to a “BCA Capability Statement” provided by the applicant.

16. Initially, in this part of the judgement, I introduce and briefly summarise the essence of three of the Council-nominated contentions. I also briefly introduce objections to the proposal from members of the public (Council’s Bundle of Documents at Ex 2, written submissions on the amended application at Ex 4, and oral evidence from certain neighbours heard during the hearing itself). I also briefly respond to questions raised in the hearing regarding the proposed easement, and comment on the BCA Capability Statement issue.

17. However, in this appeal, it is found that a fourth contention raised by Council, that relating to “Vehicle and Pedestrian Access and Parking”, is critical to the determination. The most material aspect of this section of the judgment provides an evaluation of this issue. The judgment then turns to the balancing out of the proposal’s failings with respect to access with the wider issues at hand, including potential positive impacts. The finding is that the proposal’s access failings are determinative.

Intensity of use

18. The contention is concerned with the anticipated size and intensity of this boarding house development on this R2 – Low Density Residential zoned site. Clause 30AA limits boarding houses in the R2 – Low Density Residential zone to 12 boarding rooms. However, the provision was introduced after the lodgement of the application. Council linked a legal question on weight to be given to cl 30AA to the interpretation of the compatibility of the proposal with the character of the local area, a relevant consideration under cl 30A of the SEPP.

Built form and character

19. While the first contention was concerned with intensity of activity or use, this second contention focused more particularly on the physical form of the building and suggested a lack of compatibility with the predominant local built form character. Particular concerns raised include the width of the building and the existence of a basement ramp, which were both suggested as not characteristic, a factor relevant to the consideration of impact on heritage conservation (see below).

Heritage

20. As indicated above, there are a number of nearby heritage items and a heritage conservation area to the immediate south. Council raised concern that the size and “different” characteristics of the proposed building would bring about an unreasonable adverse impact in heritage terms and be at odds with applicable LEP provisions.

Lay objections

21. The issues raised in Council’s remaining contentions were also raised in the objections from local residents. In addition, concerns were raised in particular from immediate neighbours in regard to amenity impacts. The concerns included the effect of noise (including suggested limitations on the understanding of the effects from use of the basement parking), visual privacy, visual bulk, and the amenity effects of use of the driveway entrance.

Stormwater drainage easement

22. Stormwater outflows from the site would, after certain on-site detention arrangements, flow to the south across private lands. A deferred commencement condition is suggested requiring the applicant to secure an easement for this purpose before the consent would become operational. Amendments to the application’s drainage arrangements were made relatively late into the proceedings, and while the issue was not raised in the contentions, I thought it appropriate to myself raise the “likely impacts” of the works required to complete the stormwater management system for the site, mindful of s 4.15(1)(b) of the EPA Act, and most recently in consideration of the findings of Preston CJ in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (at [5]-[39]), which itself relies on Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349, an authority provided by Mr Johnson. I heard evidence from stormwater experts K Pokharel and J Bertacco in regard to this question of the impact of the intended future drainage works involving the downstream easement.

Building Code of Australia

23. Briefly here I note that I accept the submissions from the applicant (Applicant’s Submissions in Reply (‘ASR’) pars 32-34) that this matter has not been raised appropriately in the proceedings, and that in any event there are preconditions to any approval which require compliance with the BCA.

Vehicle and pedestrian access

24. As indicated above, this is the critical issue for the application. Council contended that the proposed shared vehicular and pedestrian access was insufficient for a boarding house of this scale and unacceptable in regard to pedestrian safety. Lay objectors raised similar concerns.

Proposed arrangement

25. The actual portion of the site frontage which abuts the public road reservation (ie Albert Parade) is only 3.4m. The evidence of Mr Palmer is that all of this length is available for access. Mr Bertacco believes that based on measurements the actual available width is slightly smaller at 3.35m. Under the application, this entryway would be used for both vehicle and pedestrian access. The plan shows a demarcation of this “shared” access area. Of course, the area available for access widens out within the subject site. Principally, vehicle access is directed to the south and the underground basement. The marked pedestrian path angles to the west, towards the building entrance and a common landscaped area.

26. Vehicles entering the site would generally head to the basement parking area. Like the driveway across the nature strip which links the site to the Albert Parade carriageway, the first section of the site’s vehicle access to the basement is quite level. Then, after a distance of 8.416 m, the basement access begins to slope down, for a short distance (2m) at a gradient of 1:8 and then at 1:5 for most of the access down into the basement, including along part of a curved section. Waste would be stored in the basement and collected by a small rigid (garbage) truck, the characteristics of which are outlined at Annexure 5 to the Joint Expert Report – Traffic and Parking (Ex 8).

27. Exhibit 8 also indicates, with the use of turning path templates, that the area within the front of the site is wide enough for passenger vehicles and the waste collection vehicle to pass on site (Annexure 4). The steeper access down into the basement is shown as wide enough for a single vehicle.

Contentions

28. The essence of Council’s contention on this issue is that the access configuration is unsafe and unacceptable for a development of this form. The concerns were in regard to the width of the accessway and the gradient of the ramp to the basement. I reproduce this contention in full below (Ex 1, “Contention 6”):

“The proposed shared vehicular and pedestrian access is unacceptable in regards to pedestrian safety. The configuration of the vehicular access is insufficient for a 26 room, 36 lodger boarding house. The development does not provide for acceptable vehicular access and parking in accordance with the DCP.

Particulars

1. The entry driveway and the pedestrian access for 36 lodgers is one and the same, which is unacceptable for pedestrian safety and contrary to DS6.1 of Part 8 Chapter A of the DCP and Section 4.1 of AS2890:12004

2. The vehicular access width is non-compliant with AS2890.1:2004 which requires a minimum width of 3.6m for vehicle access only.

3. The driveway ramp is quite steep and does not comply with AS2890.2:2018 in terms of access by an SRV. The maximum grade (measured along the inside radius) allowed by Clause 3.3.3.2 of AS2890.2 is 1:6.5 (15.4%) for an SRV. The ramp must also comply with the maximum rates stipulated in Table 3.3 of AS2890.2.”

Evidence

29. Mr Bertacco’s evidence was that the proposed accessway was 250mm short of the minimum width required “just for vehicular access” under the provisions within section 2.5 of Australian/New Zealand Standard 2890.1:2004 Parking facilities – Part 1: Off-street car parking (‘AS 2890.1’). Mr Bertacco believed that given the proposed intensity of use “the vehicle access should comply with (AS2890.1) with additional width provided for safe pedestrian access” (Ex 8, par 6). The witness’s opinion was that the driveway would need to be increased to 4.6m to provide for adequate combined vehicle pedestrian access to the site (Ex 8 par 10).

30. Mr Palmer acknowledged the non-compliance with section 2.5 of AS 2890.1, however indicated that, under the standard, the “minimum actual trafficable portion of the roadway” is 3.0 m. He suggested there was a safety benefit with the non-compliance as drivers would adopt a slow speed. Mr Palmer believed the non-compliance of the access width was “if anything, a benefit to pedestrians accessing the property” (ibid).

31. Mr Palmer referenced DS6.1 of Part 8 Chapter A of the DCP, which is concerned with parking and focuses on “(designing) for pedestrians and people with a disability” and in part provides that:

“The design of the parking area and the general access to the site should consider the needs of pedestrians, with the following design considerations:

• Pedestrian entrances should be clearly visible, conveniently located, and well lit and should have minimal conflict with vehicular traffic. Conflict points should be made safe with the use of contrasting materials, footpath/road markings, designated crossing areas, bollards and similar devices.

• Parking areas should be designed to minimise pedestrian/vehicular conflict, with pedestrian routes clearly identified to facilities such as lifts, stairs, exits and street access points.”

32. Mr Palmer’s point was that the DCP did not prohibit shared accessways for pedestrians and motor vehicles but was more concerned with the performance of the arrangement in its setting, which he believed was satisfactory.

33. Under cross-examination, Mr Bertacco acknowledged that the DCP did not specify compliance with AS2890.1, but with reference to these DCP provisions, was of the view that “pedestrian/vehicular conflict is not minimised as all pedestrians accessing the site including people with a disability, the elderly and the young are forced to use the narrow vehicle access to enter or leave the site” (Ex 8, par 7). He acknowledged the access width at the actual boundary was the main point of concern. He agreed with the definition of this area as a “pinchpoint”.

34. Mr Bertacco accepted Mr Palmer’s evidence that even at peak times a vehicle would travel across the pinchpoint only once every 9.2 minutes on average. He agreed with Mr Pickles SC that the risk was “low”, if a driver was “paying attention”, but suggested that the consequence could be “high”. He saw the fact of the ramp (which affected sight distance), and an existing tree near the site boundary, as contributing factors. Mr Bertacco agreed with Mr Pickles that pedestrian safety would be improved if this tree were replaced with a low hedge (a position which was adopted in the agreed without prejudice conditions of consent), and with the proposed “stencilling” of the pedestrian portion of the accessway. Even with changes to optimise safety, Mr Bertacco retained his concerns suggesting that with 36 lodgers each leaving the premises on foot once per day, then there would be “72 potential conflicts between pedestrians and pedestrians a day”.

35. A series of photos were tendered showing driveways to apartments and the like in the Ashfield area. Under cross-examination, Mr Palmer indicated that he had undertaken a desktop analysis of the photos, and was not certain whether any of these photos represented driveways of the width proposed in the subject application. Mr Bertacco indicated that all the photos showed driveways considerably wider than that which existed for the subject proposal and seemed to have room for pedestrian and car access simultaneously.

36. There was some examination of whether the driveway gradient was satisfactory, including with a mind to the provisions at AS 2890.2:2018 - Parking facilities, Part 2: Off-street commercial vehicle facilities (‘AS2890.2’). In his written evidence Mr Palmer observed that (Ex 8, par 14):

“…whilst the proposed ramp grades comply with AS2890.1:2004 for light vehicles (cars, vans and the like), the proposed ramp grades do not comply with AS2890.2:2018 for SRV trucks … (however) the only SRV truck that will be entering the basement via the proposed ramp is a private contractor garbage truck.”

37. Mr Palmer went on to conclude based on certain drawings that the SRV proposed to be used for waste removal could handle gradients of 1:4.6:1.

38. Mr Bertacco acknowledged under cross examination that the controls at section 3.3.3.2 of AS2890.2 did not restrict gradients to 1:6.5:1 in all instances (as had been suggested in Council’s contentions). He was concerned about other service vehicles using the steep driveway, as well, and did proffer the view that a shallower driveway gradient would be better for sight distance and thus pedestrian safety and queried why this might not be possible. Mr Palmer suggested that a shallower driveway, with headroom requirements, could result in the loss of two rooms.

Findings in regard to access

39. The two major concerns raised here were, given the form and scale of the proposed development, whether: (1) the access width was satisfactory, and (2) the gradient of the driveway was satisfactory. There was also some consideration of the need for changes to the driveway between the property boundary and the kerb line of Albert Parade, that is, on the public road reserve. But this concern seemed resolvable on the evidence and for me was not determinative.

39. The width of the accessway at the pinchpoint located along the line of the subject property/road reserve boundary does not meet the standard established in AS 2890.1. This configuration could be adjudged as quite satisfactory for the existing residence. However, a development of some considerable scale is involved here, with a total of 36 potential occupants, and 13 carparking spaces and, of course, sporadic use of the basement for waste removal or likely other occasional service providers (utilities, cleaners, couriers, landscape maintenance according to the evidence). There is also two-way traffic involved.

40. While I acknowledge the peak generation, rate calculated at one vehicle every 9.2 minutes on average sounds low, this does not mean there would not be occasional concentrations of vehicles and pedestrians. Mr Palmer’s point that the narrow width would provide a safe environment (or even a safer environment than a compliant configuration) because drivers and pedestrians would take special care in response to it, has some sense to it. It is fair to think that, usually, people would respond to the narrowness of the access.

41. The concern, however, and it is a significant one, is that occasionally either drivers or pedestrians would, for some unpredictable reason, not be concentrating, or be in a rush, or be subject to a combination of factors, which introduced a risk of an accident. This risk is clearly very much higher for a development of this scale than for a development which would propagate a lower level of activity, such as the existing dwelling.

42. The applicant’s experts provided factual material (in regard to other sites), seeking to demonstrate that there were similar arrangements operating safely elsewhere. However, this material did not provide an adequate foundation for the opinion propounded by Mr Palmer in regard to overall safety, over that of Council’s expert. Mr Bertacco relied on the AS 2890.1, which might be seen as enough, but the witness also provided a convincing picture of an occasional setting were a driver was not concentrating and that there was an unreasonable risk of consequence over time with a non-compliance of this form. I was convinced that this picture was founded on specialised knowledge. It assisted me here that I otherwise found this witness as particularly inclined to assist the Court in regard to development engineering aspects generally in this appeal.

43. The issue of the driveway gradient was generally related to the SRV truck and waste removal. The possibility of some difficulties on the relatively steep driveway were not able to be discounted altogether, leaving the potential for this to bring a further occasional complication with movement at the pinchpoint. Given the physical arrangements proposed, a stalling on the steeper driveway by the SRV was not the only possible situation which might bring about a need for a reversing out onto the public road reservation of Albert Parade, bringing further safety risk.

44. The finding here is that the access arrangement is substandard. I accept Mr Bertacco’s evidence that for a development of the form and scale involved in this matter, the contravention of the standard brings safety risks, in particular to pedestrians.

45. The accessway’s gradient to the basement parking and loading bay are contributory to this risk.

46. It was a failing of the applicant’s arguments that other examples of shared vehicle/pedestrian driveways did not bring sufficient alignment with the setting proposed here to be convincing.

Conclusion and orders

48. When considering the impacts of a development, I also need to consider any positive impacts, in case they should somehow balance out against the negative. While it is only said in obiter and, as a consequence of my ultimate conclusions, I do not need to articulate the particulars here; it seemed to me that the applicant’s arguments (and application amendments) resulted in good inroads into Council’s other contentions. Among other things, some concerns in regard to particulars of the neighbour amenity, especially to the immediate east of the site, remained.

49. However, the point I make here is that these efforts of the applicant, including design changes and adopted preconditions, did no more than cushion adverse effects. They did not bring any positive impacts of themselves.

50. The principal positive effect of the proposal is in regard to the provision of lower cost rental accommodation. However, it is this concentration of people and vehicles on site (itself associated with lowering rental charges) which brings the increased pedestrian safety risk, which is ultimately determinative for the application.

51. In this case, and in consideration of the evidence, the proposed access arrangements are substandard and unsatisfactory, bringing unreasonable risk to pedestrian safety. Consent cannot be granted to the development.

52. The Court orders that:

1. The appeal is dismissed.

2. The development application 010.2018.00000203.01 for demolition of existing structures and construction of a one and two storey boarding house with basement parking and associated works at 32 Albert Parade Ashfield is refused.

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

……………………….
P Walsh

Commissioner of the Court

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Decision last updated: 22 July 2020