Ingenious Investments Pty Limited (Formerly Wayne Hoskins) v Waverley Council [2004] NSWLEC 417

Land and Environment Court of New South Wales

CITATION : Ingenious Investments Pty Limited (Formerly Wayne Hoskins) v Waverley Council [2004] NSWLEC 417 APPLICANT: PARTIES : Ingenious Investments Pty Limited (Formerly Wayne Hoskins) RESPONDENT: Waverley Council FILE NUMBER(S) : 10951 of 1998 CORAM: Watts C at 1 KEY ISSUES: Development Application - Development Consent :- Deletion of Condition 34 of the original consent LEGISLATION CITED: Waverley Local Environmental Plan 1996, (WLEP) - Multi-Unit Housing Development Control Plan No 1 (DCP1) - Waverley Development Control Plan No 14-Bicycle and Car Parking, (DCP14) - Environmental Planning and Assessment Act 1979; ss 96 CASES CITED: DATES OF HEARING: 14/05/2004 and 22/07/2004 EX TEMPORE 07/22/2004 JUDGMENT DATE :

APPLICANT: Mr J L Doyle, solicitor SOLICITOR: Cowley Hearne Lawyers Pty Limited LEGAL REPRESENTATIVES: RESPONDENT: Mr G Newport, barrister, instructed by Mr M Staunton, solicitor SOLICITORS: Staunton Beattie

JUDGMENT:

Appeal No: 10951 of 1998A (s96)

In the Land and Environment Court of New South Wales Ingenious Investments Pty Limited (Formerly Wayne Hoskins) v Waverley Council

Judgment

1 This is an appeal under s 96 of the Environmental Planning and Assessment Act 1979 , against the decision of Waverley Council (the council) to refuse a modification application in respect of a development application to erect a three storey residential flat building containing twenty one (21) dwelling units with a basement car park for thirty two (32) vehicles at No 7-15 Wills Avenue, Waverley being Lots 1 and 2, DP 74750, and Lots 2, 3, and 4, DP 308569. 2 I visited the site on the morning of 22 July 2004 and met with the party's representatives, the intervenor and local residents. Present were: · Mr J Doyle, applicant's solicitor; · Mr J Craven, applicant's manager; · Mr J Coady, applicant's traffic engineer; · Cnr M Maine, Lawson Ward Councillor; · Mr G Newport, barrister, the council's counsel; · Mr M Staunton, solicitor of the council; · Mr P Brennan, the council's Director of Planning; · Mr D McBride, barrister, the intervenor's counsel; · Ms E Cox, intervenor; resident of No 6 Wills Avenue, Bronte; · Mr W Hemmings resident of No 10 Wills Avenue, Bronte; · Ms P Spratt, resident of No 14 Wills Avenue, Bronte; · Ms E Lunney, resident of No 10 Wills Avenue, Bronte; · Ms N Murray, resident of No 8 Wills Avenue, Bronte; · Ms V Wilson, Bronte Beach Precinct Committee member and resident of No 6 Albert Street, Bronte; · Ms F Brown, resident of No 3 Wills Avenue, Bronte, · Ms P Kenny, resident of No 16 Albion Street, Bronte, · Ms S Turner, resident of No 5/ 5 Wills Avenue, Bronte; · Ms L Cass, Bondi View, newspaper; and · Ms C Cass, Bondi View newspaper. The land 3 The land is situated on the western side of Wills Avenue towards the southern end of the cul-de-sac adjoining Varna Park. The land is slightly irregular in plan with a frontage to Wills Avenue of 40.005m, a variable depth of 36.855/35.435 and a rear boundary of 42.92m, giving an area of some 1447.27m2. Erected on the land are single-storey attached and detached brick cottages. 4 Nearby are found older style single-storey and two-storey attached and detached dwellings and residential flat buildings. To the west of the land is the Bronte Bowls Club and to the south is Varna Park. Relevant planning controls Waverley Local Environmental Plan 1996, (WLEP) 5 Under the WLEP, which was gazetted 6 December 1996 and updated 16 June 1998, the land is zoned Residential 2(c1)—medium and high density and the proposed use is permissible with consent. Development Control Plan No 1 - Multi-Unit Housing, (DCP1) 6 DCP1 was adopted by the council 28 April 1998 and was effective from 5 May 1998 and provides guidance for the siting and construction of all types of multi-unit housing permissible within the Waverley Local Government Area. Waverley Development Control Plan No 14—Bicycle and Car Parking, (DCP14) 7 DCP14 was adopted November 1994 and last amended 28 April 1998. Development Control Plan No 24 – Onslow Street/ Roscoe Street/ Willis Avenue, (DCP24) 8 DCP24 was adopted 24 November 1998 and was effective from 25 November 1998 and has the purpose: …to provide interim development controls pending investigating the rezoning of land in affected areas, that will reduce the size, bulk, and height of new multi-unit housing. The DCP(24) applies to hatched areas within Waverley council that are zoned 2(c1) under WLEP as shown on the maps attached as Schedule 1 (Onslow Street, Rose Bay), Schedule 2 (Roscoe Street (west), Bondi Beach), and Schedule 3 (Wills Avenue, Waverley). 9 The objectives of the DCP24 are: · to reduce the permissible size, bulk and height of new multi-unit housing in the affected areas; · to reduce the impact of new multi-unit housing in the affected area by reducing the potential for excessive traffic generation in Onslow Street, Roscoe Street and Wills Avenue, and · to reduce overshadowing of adjoining residential properties by new multi-unit housing. 10 Other relevant development control plans are: · Development Control Plan No. 19 Waste Management; · Waverley Development Control Plan No. 26 - Access; and · Waverley Development Control Plan No. 29 - Advertising and Notification. The issue 11 The salient issue was whether Condition 34 of the original consent should be replaced with a new condition. The first modification application 12 The applicant appealed the council's refusal of the original development application lodged with the respondent council on 2 October 1998, and the Court upheld the appeal and granted development consent on 30 April 1999 subject to thirty-four (34) conditions, including the last: 34. Submission of a "Construction Vehicle Plan of Management" for the routing and control of construction vehicles accessing and exiting the site. Such plan to address the hours of operation, employee vehicles, holding areas for vehicles wanting to access the site and truck routes. The "Construction Vehicle Plan of Management" is to be approved by Waverley Council Traffic Committee (such approval not to be unreasonably withheld) prior to construction or demolition works commencing on the site. 13 An application to modify development application (DA 242/98) was lodged with Waverley council on 6 February 2004. 14 On 11 March 2004 Waverley's Traffic Committee considered a 'Construction vehicle Plan of Management' under Condition No 34. The Committee by a unanimous decision refused this plan, for the following reasons: 1. Wills Avenue is too narrow to simultaneously allow the safe movement of heavy vehicles and parking of residents' vehicles. 2. It is unreasonably to require residents of Wills Avenue to remove their vehicles from the street each time a heavy vehicle needs to assess the site. 3. There is insufficient parking in the neighbouring streets to accommodate Wills Avenue residents' vehicles as well as construction-associated vehicles. 4. The laying up end reversing of heavy vehicles in Macpherson Street will cause substantial traffic delays and congestion, which will also impact on surrounding streets. 5. There being no footpath in Wills Avenue, heavy vehicles movements along the street will adversely affect pedestrian traffic, particularly residents and local school children who frequently use the street. 15 The Court first modified the application on 4 March 2004 and amended Condition 34: 34. Submission of a Construction Vehicle Plan of Management" for the routing and control of construction vehicles accessing and exiting the site. Such plan to address the hours of operation, employee vehicles, holding areas for vehicles waiting to access the site and truck routes. The "Construction Vehicle Plan of Management" is to be approved by Waverley Council Traffic Committee (such approval not to be unreasonably withheld) prior to construction or demolition works commencing on the site, excepting only that the works described in the Scope of Works for Physical Commencement Works' (prepared by Evolution Management and dated 20 February 2004) may be carried out before that approval is received (Attachment A to these orders). The second modification application 16 On 18 June 2004 his Honour Talbot J granted leave for a local resident Ms Ellenor Cox, who is the spokesperson for the local residents group, to intervene in the proceedings and vacated the hearing date of 21 June 2004. Since then the parties, including Ms Cox, have met and the applicant has agreed to amend its s 96 application and its proposed 'Construction Vehicle Management Plan' . The applicant, the council and the intervenor have agreed that the matter can now proceed by way of consent orders. 17 On 16 July 2004 the council notified by letter all objectors, and that the matter was to proceed by way of consent orders and included a copy of the proposed consent orders and construction vehicle management plan. The objectors were advised of their right to seek leave to appear before the Court and were asked to contact the council's solicitors if they wished to give oral evidence and/ or to provide a written submission by close of business 21 July 2004. 18 In addition the council's legal officer did a letterbox drop of the letter, consent orders and proposed 'Construction Vehicle Management Plan' to Wills Avenue and the surrounding properties. 19 The 'Construction Vehicle Management Plan' dated 15 July 2004 is referred to in Condition No 34, which reads: 34. All works during the approved demolition and construction, including the routing and control of construction vehicles accessing and exiting the site, the hours of construction work, management of employee vehicles, and holding areas for vehicles wanting to access the site, are to comply with the Construction Vehicle Management Plan dated 15 July 2004. 20 On the site inspection on the morning of 22 July 2004, the applicant's representative explained that the 'Construction Vehicle Management Plan' would remove the possibility during the construction period of articulated vehicles coming to the site along Wills Avenue. 21 Mr Newport, barrister for the council informed the Court, that all resident objectors had been notified of the hearing and there were no requests to be heard. 22 Despite this, the Court provided those present the opportunity to ask questions of the applicant's representatives concerning the traffic management proposals. 23 On-site 22 July 2004, by consent, the Court modified the application a second time, by amending Condition 34 to read: