Land and Environment Court of New South Wales CITATION : Renaldo Plus 3 Pty Limited v Hurstville City Council (No. 4) [2006] NSWLEC 819 APPLICANT Renaldo Plus 3 Pty Limited PARTIES : RESPONDENT Hurstville City Council FILE NUMBER(S) : 11591 of 2004 CORAM: Brown C KEY ISSUES: Appeal :- modification of conditions of consent - consent orders - mixed commercial retail and residential development, additional fire escape, alterations to amenities and landscaping LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Perpetual Trustee Company Limited v Westfield Management Limited 2006NSWCA 337. DATES OF HEARING: 20/12/2006 DATE OF JUDGMENT: 12/22/2006 APPLICANT Mr A. Pickles, barrister SOLICITORS Heidman & Co LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 22 December 2006 11591 of 2004 Renaldo Plus 3 Pty Limited v Hurstville City Council (No. 4) JUDGMENT 1 This is an appeal against a refusal by Hurstville City Council (the council) of an application to modify DA 204 0454 that provided for the erection of a mixed commercial retail and residential development at 47-67 Mulga Road, Oatley. The application 2 The application is made under s 96AA of the Environmental Planning and Assessment Act 1979 to: 1. relocate the supermarket staff amenities and administration area to the floor level above the supermarket in the area previously denoted as commercial suites C4 and C5. The area previously forming part of the supermarket is now shown to be separately lettable commercial space; 2. create a fire escape passage through the rear landscaped area. The rear landscaped area will in part be used as an emergency exit pathway to Waratah Street. 3. install ventilation grills in the rear wall facing the southern boundary. 3 The council raised no objections to the alterations to the supermarket staff amenities and the commercial suites as the modification sought only a re-distribution of proposed uses within the building rather than any increase in floor space. The council opposed the other modifications. The ventilation grill 4 The ventilation grill is proposed to be located in the southern wall of the basement carpark. It is required provide the required level of natural ventilation to this part of the carpark. The original plan provided for no openings in the southern wall of the carpark. 5 Mr Cooper, the owner of the residential property directly adjoining the southern wall of the development, provided evidence on site and objected strongly to the ventilation grille because of the noise from the vehicles using the carpark. The vehicles would be associated with the retail and commercial activities as well as the residential uses within the building. 6 Mr Nick Koikas, an acoustical engineer, provided evidence for the applicant and Mr Neil Gross, also an acoustical engineer, provided evidence for the Council. Following discussion between the acoustic experts, the applicant undertook to review further options for the provision of additional ventilation of the carpark area around the area of the proposed ventilation grilles. The applicant subsequently proposed that the ducting for the mechanical ventilation required for the remainder of the basement carpark be extended to include the area in question. This would not require the installation of any ventilation grilles and would maintain the acoustic relationship between the building and Mr Cooper's residence provided by the original approval. I accept that this is an acceptable approach to this particular issue. Fire escape 7 The additional fire escape opening through the southern wall and 1 m wide pathway raises two issues. The first is the potential loss of landscaped area and the consequent reduction in the screening of the building from Mr Cooper's property. The second is the legal right of people who use the fire escape to use the right of way to Waratah Street. 8 On the first matter, the proposal provides for a 1 m wide pathway in the 4.15 m landscaped area on the southern side of the site. The concerns of Mr Cooper and also a number of other local residents who provided evidence on site was that the ability to screen the building would be unacceptably reduced. 9 In response to this concern, I am satisfied that the integrity of the landscaped area can be maintained through the provision of a pathway that will allow water penetration and root growth in the area of the path. This can be achieved through an open mesh style path supported by piers or similar design. 10 The proposed landscape plan also requires amendment, as it does not properly address the principal purpose of the landscaped area that is to provide screening of the building from Mr Cooper's property. Rows of landscaping of varying levels is more appropriate than the blocks of landscaping proposed. A revised landscaping plan should also take into account the proposed 1 m wide pathway. 11 The second matter relates to the legal ability (but not physical ability) for people using the fire escape to use the existing right of way that connects the fire escape to Waratah Street. The Court had the benefit of evidence from Mr Lyle Dix and Mr Michael Wynn-Jones. Both are experts in the requirements of the Building Code of Australia (BCA). There was agreement that if legal access could be obtained over the right of way, then the fire access satisfied the requirements of cl D1.10 of the BCA. Conversely, if legal access was not available, then the requirements of cl D1.10 were not satisfied. 12 Mr Rigg appeared for the council and Mr Pickles appeared for the applicant. Mr Rigg submitted that the grant of the right of way did not allow it's use for emergency fire access purposes. Mr Pickles submitted the opposite. Both relied upon the Court of Appeal judgment in Perpetual Trustee Company Limited v Westfield Management Limited 2006 NSWCA 337. Mr Riggs submitted that the conclusions reached in the decision supported his position whereas Mr Pickles submitted that the circumstances in this case could be distinguished from the circumstances in Perpetual Trustee. 13 In this case, the Court held (at par 5) that "it is not a universal rule that a right of way granted for enjoyment of one piece of land cannot be used for the purpose of passing over that land to another piece of land". As I understand the findings, the ability for one parcel of land to have access to the right of way depends largely on the terms of the grant. In this regard, I am not satisfied that the submissions provide a sufficient basis for the Court to properly answer the question at issue. It would seem that the complexity of the issue does not lend itself to determination by a Commissioner in Class 1 proceedings after considering the detailed legal analysis undertaken by the Court of Appeal in Perpetual Trustees. 14 I propose that a condition be placed on the consent that will require the applicant to satisfy the council that access over the right of way can be achieved for persons using the emergency fire access. I make no directions as to how this satisfaction can be achieved, although a number of options were canvassed at the hearing. These include a declaration from the Supreme Court, as in Perpetual Trustee; an amendment to the terms of the right of way; proceedings under s 40 of the Land and Environment Court Act 1979 or simply a further submission to the council. 15 I am satisfied that the question of uncertainty does not arise because of the range of options available to the applicant to address this issue. I am also mindful that there are no physical constraints that would prohibit the use of the right of way for emergency access and that the use of the right of way is likely to have significantly lower volume of movement than anticipated by the terms of the original grant. Directions 16 With the agreement of the parties I directed that the parties confer and provide amended conditions, amended architectural plans and amended landscape plans that reflected the findings in the judgment by 15 January 2007. Liberty to restore the matter on 48 hours is also granted. On 22 February 2007 Short Minutes of Order were provided indicating that the parties agreed to Consent Orders being made. Orders 17 The Orders of the Court, by consent, are: 1. The appeal is upheld. 2. Development consent DA 20040454 and conditions imposed in appeal 11591 of 2004 is amended pursuant to s. 96 of the Environmental Planning and Assessment Act as set out in the Annexure marked 'A'. 3. The exhibits are returned ___________________ G T Brown 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.