Land and Environment Court of New South Wales CITATION : Wiggins v Pittwater Council [2006] NSWLEC 286 APPLICANT James Joseph Kenneth Wiggins PARTIES : RESPONDENT Pittwater Council FILE NUMBER(S) : 11476 of 2005 CORAM: Bly C KEY ISSUES: Development Application :- Subdivision, driveway gradient LEGISLATION CITED: Pittwater Local Environmental Plan 1993 Pittwater 21 Development Control Plan DATE OF JUDGMENT: 04/11/2006 APPLICANT Mr R Creighton, agent LEGAL REPRESENTATIVES: RESPONDENT Mr M Causer, solicitor SOLICITORS Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 11 April 2006 11476 of 2005 James Joseph Kenneth Wiggins v Pittwater Council JUDGMENT This decision was given extemporaneously and has been revised and edited prior to publication 1 This appeal relates to Development Application No. 214/05 which is effectively for the re-subdivision of two lots into three lots at Nos. 91 and 93 Powderworks Road, North Narrabeen. Number 93 is a large hatchet shaped property with an area of 1,542 sq m. Number 91 is a long narrow rectangular frontage lot with an area of 1,268 sq m. 2 The existing access corridor is 5 m wide and about 37 m long and is developed with a concrete driveway having gradients up to 30.8% and a set of dilapidated steps with some vegetation. The combined site has a fall of about 29 m from the street to its rear boundary. 3 The site is included in the Residential 2(a) Zone under Pittwater Local Environmental Plan 1993 and the proposed development is permissible with development consent. Also applicable to the site is Pittwater 21 Development Control Plan ("the DCP"). 4 The application was notified to surrounding residents and four objections were received. Those residents gave evidence at the hearing: Mr R Clements, Mr M Simpson, Mrs K Skelly, and Mr T Mackay, expressing concerns including: the steepness of the driveway and associated safety concerns including the possibility of out-of-control cars crashing and leaving the site; the difficulty of access for construction vehicles; the inadequacy of existing and proposed stormwater drainage arrangements; the loss of a number of existing mature trees; and the future dwelling house on the new lot would have overlooking implications. 5 The application was recommended for refusal by council's Development Unit. The council subsequently invited the applicant to submit amended plans to address the recommended reasons for refusal, particularly in relation to the driveway gradient. This offer was not taken up and the matter proceeded to appeal. 6 At the hearing the Court was advised that the only issue of concern to the council involved the access driveway which will, if a house is erected as anticipated on the additional lot, be utilised by two dwellings rather than one. Vehicle trips generated will be doubled from nine to 18 vehicle trips per day. Taking this into account, as well as the matters of concern to the residents, and having considered the other issues referred to in the Statement of Issues, I agree that this is the only issue that requires the determination of the Court. In this regard I note that all but one of the draft conditions of consent have been agreed to. 7 The hearing was adjourned from the original on-site hearing to enable the preparation of revised more detailed plans for the driveway when the applicant agreed to the payment of costs associated with the adjournment. These drawings have now been provided and have been the subject of consideration by the two traffic engineering experts, Mr P Brisby, a council engineer and Mr L Marshall, the applicants consultant engineer. These experts provided a joint report which recognises the disagreements between them as follows: Both parties still disagree on what is an appropriate maximum longitudinal gradient for such driveway reconstruction. Mr Brisby believes that the maximum gradient recommended in the Australian Standard AS/NZ2890.1-2004 and Pittwater DCP21 of 25% is the appropriate gradient. Mr Marshall believes based on his design and accompanying justification, titled "Supplementary Statement of Evidence" dated March 2006 that the proposed maximum gradient of between 31.5 and 31.8 is acceptable. 8 The foot note to cl 2.6.2 Gradients of AS/NZ2890.1-2004 states: It is recognised that limiting domestic driveway grades to 25% maximum may not be practicable in some particularly hilly residential locations. The services of a professionally qualified person with appropriate experience may be required to make a judgment as to whether a particular design is safe and environmentally sustainable. 9 Mr Marshall drew the Court's attention to s B6.1 of the DCP, which deals with access driveways for residential development up to two dwellings (single dwelling and dual occupancy). This section specifies that access driveways shall have gradients less than 20% although this can be increased up to 25% for distances up to 25 m, subject to a merit assessment. In essence, the section also provides for variations where council may permit driveway grades up to 25% for a new driveway and up to 33% for existing driveways based on certification by a qualified traffic consultant that access is safe. It was his opinion that the existing driveway with the proposed upgrading will be safe. 10 Conversely it was submitted on behalf of the council that s B6.1 does not apply and instead s B6.2 which applies to access driveways for all development other than two dwellings, this section requires that access driveways should meet Australian Standard 2890.1 and should have maximum grades of 20%. There are no variations indicated for gradient. 11 I have considered these provisions and, taking into account that whilst this proposal is for the subdivision of land, it is effectively for the residential development of two dwellings. Whilst the existing driveway is to be widened, resurfaced and gradients adjusted, it is for the most part structurally sound. In the circumstances I have decided that s B6.1 is relevantly applicable and that subject to a merit assessment, a gradient up to 33% can be acceptable. The requirement that it be certified by a qualified traffic consultant that access is safe is met by the evidence of Mr Marshall. 12 More particularly the changes to the driveway include: widening to 3.5 m, resurfacing to provide maximum frictional resistance; the introduction of a signposted speed limit of 10 km per hour; the installation of two speed humps; the rearrangement of gradients at and in the vicinity of the street frontage; the provision of new steps alongside the pavement; and the provision of a properly graded turning area at the end of the driveway and a crash barrier. 13 There was no objection to the changes in the vicinity of the street frontage because this involves compliance with the applicable standard and significant improvements in visibility for drivers to observe pedestrians on the footway and cars in the road. Obviously there was no objection to the widening and resurfacing of the driveway, or the provision of a crash barrier. 14 The other change of significance to Mr Brisby involves the increase in gradient from the existing maximum of 29.2% to a maximum of 31.8%, making the non-compliance with the 25% maximum that he advocates, even greater. In response Mr Marshall said, and I accept his evidence, that the different in gradient is insignificant and will make little difference to the driveway's safety. I also agree that the improvements to the design, particularly to changes at the street and the turning area and the driveway surface are of considerable benefit. In this context I also note Mr Marshall's evidence as to the unlikelihood of out-of-control vehicles leaving the site. 15 Whilst Mr Brisby may be correct in his opinion that a different design could be produced that would reduce the gradient closer to the 25% in the Australian Standard, in all of the circumstances I have not been persuaded that this is sufficient to justify refusal of the appeal. In this regard I accept that a curvilinear design would be impractical and would significantly affect the useability of the land. 16 I have therefore decided that the appeal should be upheld and conditional development consent granted. The conditions shall be in accordance with Exhibit 8 including the disputed condition, which is to be imposed on the basis of it being consistent with the associated provision in the DCP. Exhibit 8, B and D will be retained on the Court's file. ___________________ T A Bly Commissioner of the Court rjs 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.