Land and Environment Court New South Wales Medium Neutral Citation: Rio Marina Pty Ltd v Inner West Council [2021] NSWLEC 1328 Hearing dates: 23 & 24 March 2021 Date of orders: 8 June 2021 Decision date: 08 June 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders: (1) The Applicant's modification application, as amended, is not approved; (2) The appeal is dismissed. (3) The exhibits are returned, except exhibits B and 1. Catchwords: MODIFICATION APPLICATION – whether design of proposed driveways is acceptable – whether driveway design retains a functional on street car parking space – whether loss of on street parking is acceptable – application of s 4.15(3A) of E&A Act Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15(3A), 4.55(2), 8.9 Environmental Planning and Assessment Regulation 2000, cl 77 Land and Environment Court Act 1979, s 34 Marrickville Local Environmental Plan 2011, cl 2.3 Roads Act 1993, ss 6(1) and 6(2) Texts Cited: Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy, 10 December 2020 Marrickville Development Control Plan 2011 Category: Principal judgment Parties: Rio Marina Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: P Rigg (Applicant) J Walker (Respondent) Solicitors: Peter R Rigg (Applicant) Inner West Council (Respondent) File Number(s): 2020/344387 Publication restriction: No Judgment 1. COMMISSIONER: Cavey Street in Marrickville can be characterised as a narrow road providing restricted vehicular access to a compact residential area ending in a cul-de-sac. Vehicular parking is permitted on both sides of the street and, as a consequence, the roadway proper is often only wide enough for single vehicle use. 2. Rio Marina Pty Ltd (the Applicant) has appealed the refusal by Inner West Council (the Respondent) of its application (MOD/2020/0315) (the Modification Application) to modify the consent issued for its development application (DA 201900411) in relation to a development (the Approved Development) at 18 Cavey Street, Marrickville (the Subject Site). 3. The Approved Development concerned the demolition of existing structures on the Subject Site, the subdivision of the Subject Site into two lots (identified as 18/Lot 1 and 18A/Lot 2 in Cavey Street) and the construction a two-storey dwelling on each of the subdivided lots (see below). The original plans submitted with DA 201900411 included an off-street parking space for each dwelling separated by an existing adjacent street tree. 4. The Modification Application, as originally lodged, sought deletion of two conditions (conditions 2a and 2b) imposed with the grant of consent to the Approved Development which concerned design changes. These conditions required that prior to the issue of a Construction Certificate, the Certifying Authority must be provided with amended plans (including an amended Landscape Plan) demonstrating the following conditions had been satisfied: 1. Condition 2a: "Provision of a single car space for 18A Cavey/Lot 2 in the location of the existing vehicular crossing, so as not impact the availability of existing on-street public parking. The car space must comply with AS2890 1:2004 and be a minimum of 5.4m (length) x 2.7m (width). The internal layout of the ground floor and location of front entry door of the dwelling may be altered slightly to facilitate this requirement." 2. Condition 2b: "The deletion of the proposed car space and associated vehicular cross over for 18 Cavey/Lot 1 to be replaced by pervious landscaping within the front setback, except for the proposed pathway. The internal layout of the ground floor and location of front entry door of the dwelling may be altered slightly to facilitate this requirement." 1. The Applicant now proposes that its consent be modified as follows: 1. to provide a driveway to the newly consented dwelling on the upper side of the Subject Site at 18 Cavey Street subject to two amended plans (referred to as plans DA0 and DA3); 2. deletion of conditions 2a and 2b (see above at [4]), which it maintains, along with the deletion of condition 2c which reads: "2.c Retention and protection of the existing street tree (Tristaniopsis laurina (water gum))." 1. amendment to three further conditions, as follows: 1. condition 27 in which it was proposed that: 1. paragraph d. be deleted, the paragraph being: "d. The redundant vehicular crossing to the site must be removed and replaced by kerb and gutter and footpath. Where the kerb in the vicinity of the redundant crossing is predominantly stone (as determined by Council's Engineer) the replacement kerb must also be in stone." 1. the last sentence of the condition be deleted. It reads: "All works must be constructed in accordance with Council's standards and specifications and AUS-SPEC#2-'Roadworks Specifications'." 1. condition 31 concerning light duty vehicular crossing, which the Applicant seeks to be deleted; 2. condition 32 concerning parking on site, in which the Applicant seeks that the width of the car space on the Subject Site be reduced from 2.7m to 2.5m. 1. The Applicant sought, and was granted leave, to rely upon the plans referred to above (at [5(1)]). Background 1. The circumstances of the Subject Site, located to the right foreground with red brick front fence and iron grill gates, is shown in the image below taken from Google Maps. This was its disposition prior to the construction of the Approved Development. 1. The dark SUV on the roadside to the right is parked on the upper side of the existing driveway entry to the Subject Site. Under its amended plans, the Applicant's Modification Application now seeks: 1. to retain this lower driveway in this configuration. This would serve as the entry to the newly approved dwelling at 18A/Lot 2 in Cavey Street; and 2. to provide an additional new driveway to the newly consented dwelling on the upper side of the Subject Site at 18/Lot 1 in Cavey Street. This driveway would be located beyond the street tree shown at the rear of the dark vehicle parked in front of the Subject Site as illustrated above. 1. The Modification Application made under s 4.55(2) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) had been notified consistent with the provisions of Marrickville Development Control Plan 2011 and cl 77 of the Environmental Planning and Assessment Regulation 2000. The appeal comes to the Court pursuant to the provisions of s 8.9 of the EP&A Act. 2. The Subject Site is zoned R2 Low Density Residential under the provisions of cl 2.3 of Marrickville Local Environmental Plan 2011 (MLEP) (see below (at [15]). 3. The hearing was undertaken consistent with the Court's COVID-19 Pandemic Arrangements Policy. An inspection of the Subject Site was undertaken prior to the hearing being convened on the Microsoft Teams platform. Objector submissions 1. Three objectors made submissions to the Court at the commencement of the proceedings as follows: 1. Ms Julia Shingleton, a resident of Cavey Street, who said that, while not opposed to development, Cavey Street is narrow with increasingly limited on street parking. She added that, in her opinion, the provision of one off street parking space, as proposed, did not justify the loss of two on street spaces. 2. Mr Nick McIntosh, also a resident of Cavey Street, who said that, while he had no general issue with development on the Subject Site, he was opposed to the approval of the Applicant's proposed inclusion of a second driveway in its development. He noted that there was high demand for on-street parking in Cavey Street which was a narrow street. He said that three large cars could currently be parked between 14 and 18 Cavey Street but that the Applicant's proposed second driveway would remove two of these. He also expressed concern about the difficulty that would be encountered manoeuvring a vehicle into the proposed additional driveway and car space. 3. Mr John Skinner, a further resident of Cavey Street, who said while he was not opposed to Approved Development, the ability to park in Cavey Street was getting tight already and it was not possible for everyone to have car spots. He noted that eventually there would be only a handful of parking spaces left on the street, and the loss of on street parking had to stop somewhere. Statutory context Environmental Planning and Assessment Act 1979 1. Section 4.55(2) of the EP&A Act provides as follows: A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if— (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with— (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. Roads Act 1993 1. The Roads Act 1993 (the Roads Act) provides under its cll 6(1) and 6(2), which concern the right of access to public road by owners of adjoining land, as follows: (1) The owner of land adjoining a public road is entitled, as of right, to access (whether on foot, in a vehicle or otherwise) across the boundary between the land and the public road. (2) The right conferred by this section does not derogate from any right of access that is conferred by the common law, but those rights are subject to such restrictions as are imposed by or under this or any other Act or law. Marrickville Local Environmental Plan 2011 1. The Subject Site is located on land zoned R2 Low Density Residential under the provisions of cl 2.3 of MLEP. The objectives for 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 Marrickville Development Control Plan 2011 1. The Proposed Development is subject to the provisions of Marrickville Development Control Plan 2011 (MDCP), and the following provisions of MDCP are of relevance to this appeal: 1. Part 2.1 provides guidance to development in relation to urban design, including: 1. Part 2.10 concerning parking, which includes the following: 1. Objective O7, which is: "To ensure all parking facilities are safe, functional and accessible to all through compliance with design standards." 1. Objective O8, which is: "To ensure all parking facilities achieve positive visual, environmental, sustainable transport and pedestrian safety outcomes through adoption of best practice principles." 1. a control set out in Table 1 that developments in Area 3, within which the Subject Site is located, should provide car spaces at a rate of one per dwelling house; 2. Justifications for providing less than the required car spaces that include the following: "2. Existing site and building constraints make provision of car parking impractical; … 7. Safety of motorists, pedestrians and cyclists is unduly compromised by provision of parking." 1. car parking design controls, in Part 2.10.12, that state that parking areas must be designed in accordance with relevant standards, in particular Australian Standards, Austroads and RMS guidelines (control C4), and which require that the minimum dimensions for an off-street parking space is 5.4m by 2.5m, and clearly marked to be easily identified by users. 1. Part 2.20 which provides generic provisions for tree management, and which includes the following two objectives of relevance in this appeal: 1. Objective O3 which is: "To protect trees within and adjacent to development sites and to ensure that all new development provides an opportunity for existing and new trees to grow." 1. Objective O5, which is: "To maintain and enhance the amenity of the Inner West Local Government Area through the preservation of appropriate trees and vegetation." 1. Part 4.1 which provides guidance to low density residential development, including at Part 4.1.7 in relation to car parking, including: 1. the statement that the provision of car parking should reasonably satisfy the needs of current and future residents, but recognise the need to balance car parking access and provision with design, heritage and sustainability objectives; 2. Objective O17, which is to maintain kerbside parking and streetscape character; 3. Objective O18, which is to ensure, where permitted, that car parking structures respect and enhance the character of the street; 4. The Parties confirmed that the following specific elements of control C14 within Part 4.1.7 of MDCP were of relevance in this appeal: "C14 Car parking structures must be located and designed to: i. Conveniently and safely serve all users; ii. Enable efficient use of car spaces, including adequate manoeuvrability for vehicles between the site and the street; v. Not reduce availability of kerbside parking; vi. Retain any significant trees;" Contentions 1. At the commencement of the hearing proper, the Parties confirmed, based on the evidence of their expert arborists, Mr Guy Paroissien for the Applicant and Ms Lisa Durland for the Respondent, that the design of the Applicant's proposed additional driveway to on the upper side of the street tree outside the Subject Site was acceptable. 2. The expert arborists had agreed, on the basis of root mapping excavations they had undertaken, that the Applicant's now proposed two driveways, and particularly the upper driveway to proposed Lot 1 at 18 Cavey Street, which would have intruded into the structural root zone of the tree, were acceptable and unlikely to cause significant damage to the street tree or to reduce its long term viability. 3. As a consequence, the Parties agreed that the Applicant's proposed additional driveway would meet the relevant control within Part 4.1.7 of MDCP in relation to retention of significant trees (see above at [16(3)(d)]) and the Respondent's tree impact contention was resolved. 4. As a consequence of the contention relating to the street tree being resolved, the remaining questions requiring resolution in this appeal concern the following: 1. whether the Applicant's submission that it was entitled, as of right, to driveway access to both the proposed lots 1 and 2 was well founded; 2. whether the design of the Applicant's proposed driveway configuration is acceptable; which differs from Council's standard requirements for a driveway; and 3. whether the impacts of the Applicant's proposed driveways, notably in relation to on-street parking, are acceptable. 1. The Court was assisted by the evidence of the Parties' expert traffic engineers, Mr Oleg Sannikov, for the Applicant and Mr Joe Bertacco, for the Respondent. Is the Applicant's submission that it is entitled, as of right, to driveway access to both the Lots 1 and 2 on the Subject Site well founded? 1. In opening, the Applicant had stated that, the provision of a driveway onto both Lots at 18 and 18A Cavey Street could not be refused as this access was required, as of right, under the provisions of s 6(1) of the Roads Act (see above at [14]). 2. The Respondent replied that while the Applicant was entitled to access (whether on foot, in a vehicle or otherwise) across the boundary between the Subject Site and Cavey Street, which is a public road, s 6(2) of the Roads Act provided that this entitlement was not absolute and that the access rights are subject to such restrictions as are imposed by or under the Roads Act or any other Act or law. 3. The Respondent further submitted that as a consequence of s 6(2) of the Roads Act, the provision of a built car space, and/or a driveway, were matters subject to: 1. the provisions of the EP&A Act, and required approval following proper assessment of any such proposed works; and 2. approval under the provisions of s 138 of the Roads Act. 1. Having considered the submissions of the Parties in relation to this question, I agree with the submissions of the Respondent that: 1. the Applicant's Modification Application, which includes seeking approval for driveways to both the lots at 18 and 18A Cavey Street, is a matter that is subject to approval under the provisions of the EP&A Act, consistent with the provisions of s 6(2) of the Roads Act; and 2. the Applicant's submission that it's proposal for two driveways must be approved, as of right, as a consequence of s 6(1) of the Roads Act, should not be adopted. Is the design of the Applicant's proposed driveways acceptable? 1. The Applicant said that its proposed driveway design provides, inter alia, for: 1. a driveway entry into each of Lots 1 and 2 on the Subject Site; and 2. the retention of a single car parking space outside the Subject Site. 1. The Respondent, relying on the evidence of its expert traffic engineer, Mr Bertacco, advised that: 1. Council had a standard driveway design which was developed to ensure that a vehicle seeking to enter and exit the driveway could do so in a safe and efficient manner; 2. Council's standard for driveway design, which was not consistent with an Australian Standard, had been adopted following the merger of three Councils to form what is now the Inner West Council and included elements drawn from each of the three previous standards; 3. in order for the Applicant's proposed driveways to be compliant with Council's standard driveway design: 1. both of the proposed driveways to Lots 1 and 2 would need to be extended on their upper side by 650mm; and 2. the driveway to proposed lot 1 at 18 Cavey Street would need to be extended by 350mm on its lower side. 1. The Respondent, supported by the evidence of its expert traffic engineer Mr Bertacco, submitted that: 1. as the proposed driveways were not designed in line with Council's design standards for driveways, they should not be approved; 2. the car space outside the Subject Site that would result from the Applicant's proposed two driveways would be 5.1m in length, which was less than the standard length required for a non-enclosed car space on the road which was 5.4m under both the Australian Standard and the provisions of Part 2.10.5 of MDCP; 3. a vehicle representative of 85% of all vehicles using the road (referred to as a B85 vehicle), with a length 4.91m, parked in the residual car space proposed by the Applicant and positioned exactly at the centre between the two driveways, would leave a 100mm space at each of its ends to the driveway splays, which would restrict movement into and out of the proposed driveways; and 4. adoption of Council's standard driveway design which would require widening of both proposed driveways would result in a residual car space outside the Subject Site that would be 4.1m in length which would be an even less functional parking space than that proposed by the Applicant. 1. The Applicant's expert traffic engineer, Mr Sannikov, said that he had prepared swept path analyses for the proposed driveways which had confirmed, to his satisfaction, that a standard B85 vehicle could be manoeuvred into and out of both proposed driveways. 2. Mr Sannikov agreed, in response to questions from the Respondent, that: 1. Cavey Street provided a narrow carriageway for drivers to negotiate. He agreed that its 7.3m width was narrower than the required 7.6m, which allowed for a parking lane on each side of the road of 2.3m width, and a centre lane of 3.0m; 2. the parking lanes in Cavey Street were not marked, and that the provision of line marking would assist driver comfort and assist them to park more efficiently in the narrow circumstances of the street; and 3. the swept path analyses, contained in his joint report with Mr Bertacco, illustrated that vehicles exiting the proposed car space in Lot 1 (18 Cavey Street), and a vehicle entering and exiting Lot 2 (18A Cavey Street) would require both care and multiple movements of the vehicles to achieve an alignment to progress out using the centre of the Cavey Street roadway. 1. Having considered the submissions of the Parties and the evidence of the experts, I have concluded that, while the design of the Applicant's proposed driveways may permit the movement of vehicles into and out of lots 1 and 2 of the Subject Site, the circumstances of Cavey Street make this an unacceptable design. Those circumstances include: 1. the restricted and narrow configuration of Cavey Street; 2. the likely presence of parked cars on both sides of the road requiring multiple movements of vehicles to enter and leave the lots; 3. the combination of road configuration and difficult manoeuvring requirements give rise to safety risks to pedestrians, risks of vehicle damage and reduced efficiency of road use. 1. Based on my conclusions at [31], I find that the Applicant's proposed driveway designs do not comply with the provisions of control C14 (i) and (ii) of Part 4.1.7 of MDCP as they: 1. would not conveniently and safely serve all users, in this instance users of the roadway and the footpath; and 2. would not enable efficient use of car spaces due to what I consider to be the inadequate manoeuvrability of vehicles between the Subject Site driveways and the street as a consequence of the narrowness of the street, and the likely proximity of parked vehicles. 1. I am also satisfied that the design of the Applicant's proposed driveways does not achieve the objectives of Part 4.1.7 of MDCP, most relevantly objective O18, as the Applicant's design of its proposed driveways, which both require multiple movements of vehicles to achieve variously the entry and exit of vehicles to and from Lots 1 and 2, does not respect, and in my assessment does not enhance, the narrow and constrained character of Cavey Street. Are the impacts of the Applicant's proposed driveways acceptable, particularly in relation to the provision of on-street parking 1. Because there is no driveway crossover, and so no off street parking, provided at 16 Cavey Street, a continuous length of roadway is currently available for on street parking between the driveway crossovers of 14 Cavey Street and the Subject Site at 18 Cavey Street. 2. The Parties agreed that along this section of Cavey Street the roadway currently provides three car parking spaces, including one outside the Subject Site. The Respondent described these parking spaces as generous, and confirmed that they were consistent with the configuration requirements within the Australian Standards. 3. The Applicant's proposed modification, with its narrower driveway entry width when compared to Council's standard for driveway design, would result in: 1. one potential car parking space in front of the Subject Site, located between its two proposed driveways for 18 and 18A Cavey Street, which would be 5.1m in length, that is 300mm shorter than the length required under the Australian Standard and under the provisions of control C5 of Part 2.10.12 of MDCP; and 2. two parking spaces being available between 14 and 16 Cavey Street, which the Parties and their experts identified as meeting the Australian Standard for an unenclosed space which is 5.4m in length. 1. The Applicant submitted that if these three car parking spaces were assessed as acceptable then its proposed modification, which included one off additional off street parking space, would provide a total of four spaces, which would be one more than was currently provided. 2. The Respondent said that the car space that would remain in front of the Subject Site: 1. would be 300mm short of achieving the standard length of a car space for a non-enclosed space which is 5.4m; 2. would compromise the functionality of both proposed driveways to on the Subject Site in terms of vehicle movement into and out of the driveway; and 3. should be assessed a loss of one standard on street parking space. 1. Further, the Respondent said that if the Council's standard template for driveway design were applied, it would further reduce the length of the available car space in front of the Subject Site by one metre and that in these circumstances: 1. the remaining parking spot in front of the Subject Site would only be 4.1m in length and would be further compromised compared to the Australian Standard requirements for a minimum 5.4m length; 2. the parking space available between the driveway at 14 Cavey and the proposed driveway at 18a Cavey would be reduced, resulting in the provision of one standard parking space, and one undersized car space, which it said represented an effective loss of one further car space; and 3. the proposal would result in the provision of two private driveways but the loss of two standard sized on street spaces available for general public use in circumstances where street parking is in high demand in Cavey Street. 1. Having considered the submissions of the Parties and the evidence of their experts, I have concluded that: 1. while the Respondent's proposed alternative driveway design prepared in line with its standard driveway design specifications, is, on one hand, of interest, it is the Applicant's proposal that is the focus of my considerations in this appeal; 2. the Applicant's proposed driveway designs would result in a parking space between its two driveways of 5.1m in length, which would be undersized, when compared with the Australian Standard requirement for a 5.4m length car space required under the provisions of Part 2.10.12 of MDCP; 3. As previously noted by Mr Bertacco (see above at [28(3)]), in a best case scenario, with an accomplished driver positioning their vehicle exactly centre in that 5.1m long car space, the clearance on either side of the parked car to the margin of the driveway entrances would be 100mm; 4. the entry and exit of vehicles into and out of the Applicant's proposed driveways has been demonstrated to be difficult given: 1. the narrow configuration of Cavey Street; 2. the provision of parking capacity on both sides of the street; and 3. the need for vehicles using the Applicant's proposed driveways to execute multiple manoeuvrers for entry and/or exit from them; 1. if a B85 vehicle were to use the undersized car space in front of the Subject Site, and if that vehicle were positioned other than in the precise middle of that space, the functionality of one other of the Applicant's driveways would be compromised or could be rendered unusable in my assessment; and 2. for reasons provided above (at [(2)] to [(5)]), I agree with the Respondent that the Applicant's proposed driveway design would result in the effective loss of one on street car space. 1. I further conclude that, as a consequence of my finding above (at [40(6)]) the Applicant's proposed modification: 1. does not comply with control C5 in Part 2.10.12 and control C14 (ii) and (v) in Part 4.1.7 of MDCP; 2. does not represent a reasonable alternative solution that would merit the application of flexibility pursuant to the provisions of s 4.15(3A) of the EP&A Act because it does not achieve either: 1. objective O7 in Part 2.10.1 of MDCP, which provides objectives for parking applicable to development on the Subject Site, because in my assessment it will not ensure that all parking facilities are safe, functional and accessible to all through compliance with design standards, and 2. objective O17 of section 4.1.7 of MDCP because it will not, in my assessment, maintain kerbside parking and streetscape character. Conclusions 1. As a consequence of my considerations above of the experts' evidence, and the submissions of the Parties, I have concluded that the Applicant's modification application should not be approved for the following reasons: 1. as identified above at [32] and [41(1)], the Applicant's proposed modifications do not comply with control C5 in Part 2.10.12 and controls C14 (i), (ii) and (v) of Part 4.1.7 of MDCP; 2. as identified above at [33] and [41(2)], the Applicant's proposed modification does not achieve objective O7 of Part 2.10.1 and objectives O17 and O18 of Part 4.1.7 of MSDCP, and so does not merit flexibility in the application of controls C5 and C14, as it does not represent a reasonable alternative solution that achieves these objectives; and 3. as I have concluded that the Applicant's proposed design for parking on the Subject Site should not be approved, I am satisfied that the Applicant's proposed modifications to its conditions of consent (see above at [5(2)] and [5(3)]) should not be approved. 1. In reaching this conclusion I note that, while the provisions Part 2.10.5 of MDCP require that the provision of one car parking space per dwelling in Parking Area 3 in its Table 1, this is subject to the provisions of Part 2.10.4 of MDCP, which indicate that car parking at a rate lower than those in Part 2.10.5 can be justified where existing site and building constraints make provision of parking impractical. In my assessment, these circumstances exist in the current appeal. Orders 1. The Court orders: 1. The Applicant's modification application, as amended, is not approved; 2. The appeal is dismissed. 3. The exhibits are returned, except exhibits B and 1. ..…………….…….……. M Chilcott Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 June 2021