Land and Environment Court of New South Wales CITATION : Defence Housing Authority v Canada Bay City Council [2004] NSWLEC 280 APPLICANT Defence Housing Authority PARTIES : RESPONDENT Canada Bay City Council FILE NUMBER(S) : 10129 of 2004 CORAM: Bly C KEY ISSUES: Development Application :- consent orders - demolition of dwellings - residential flat buildings - density - setbacks open space - trees and overshadowing. LEGISLATION CITED: Environmental Planning and Assesment Act; s 97 CASES CITED: DATES OF HEARING: 10/05/04 EX TEMPORE 05/10/2004 JUDGMENT DATE : APPLICANT Mr S Austin, Q C SOLICITORS Piper Alderman LEGAL REPRESENTATIVES: RESPONDENT Mr D Baird, solicitor SOLICITORS Maddocks JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10129 of 2004 Bly C 10 May 2004 Defence Housing Authority Applicant v Canada Bay City Council Respondent Judgment 1. In this matter the parties have invited the Court to make consent orders in relation to the development of the property at 84-86 Consett Street in Concord West. That development comprises the demolition of two dwellings, removal of a number of trees, and the construction of two residential flat buildings above a common basement, which development provides for 7 three-bedroom dwellings. The basement is to contain fourteen resident parking spaces plus two visitor car spaces, which are accessed via a ramp adjacent to the northern boundary of the site. 2. The site is zoned Residential 2(c) under the Concord Planning Scheme in which zone the proposal is permissible with development consent. Also applicable to this site is the Concord Code for the Erection of Residential Flat Buildings and Boarding Houses ("the code"). The relevant standards within that code relating to matters such as floor space ratio, height, and setback, and indeed density, are all complied with by the proposal. It was also pointed out that in terms of density, council's residential strategy would permit an even higher density than that proposed. 3. The application was advertised and some seventy-eight submissions, predominantly objections, were received. Those objections raise matters including: excessive density; non-compliance with various council standards including setbacks; excessive bulk and scale; out of character with the streetscape; inappropriate arrangement of the access driveway, particularly its gradient, and the consequential likely adverse conflict between exiting vehicles and children from the adjoining school; and the inappropriate relationship between medium density development and the school particularly in terms of noise and overlooking. 4. The application was refused by the council for thirteen reasons which include excessive density, inadequate setbacks, unsatisfactory landscaping and private open space, removal of trees from the site, unsatisfactory amenity of two units resulting from overshadowing, overlooking from the adjoining school, the safety hazard resulting from the design and location of the driveway, excessive height, bulk, and scale, and inappropriate external finishes. 5. Since that time the applicant's experts including town planners and traffic engineers have consulted in relation to the proposal which has now been modified. Those consultations and negotiations have resulted in consent orders being sought and the issues in the statement of issues (which was for the most part an elaboration of council's reasons for refusal) have now been resolved to the satisfaction of the council. 6. This resolution has occurred notwithstanding the concerns from the residents, some of whom I heard from on-site this morning. Those residents were Mrs J Warth of 67 Consett Street. Mrs Warth appeared as a representative of the school's Parents and Friends Association. Mrs M Farrell who is the acting principal of St Ambrose Primary School also gave evidence in relation to the impacts of the proposal on the school. The other residents who gave evidence were Mrs K Winjegaarden of 77 Consett Street, Mr J Kennedy of 82 Consett Street, Mrs C Marshall of 22 Queen Street, and Mrs J Gallagher of 87 Consett Street, Concord West. 7. The acting principal of the school and the representative of the Parents and Friends Association and the residents raised a number of issues, the principal issues being the safety issues arising as a result of the vehicular access ramp to the basement, the relationships between the school and the proposed dwellings, and the scale of the development in the streetscape. 8. A number of residents suggested that a reduced density development, of say five dwellings, would be acceptable, and no doubt a smaller development would make those residents somewhat happier. But the density of this proposal, being consistent with council's residential strategy, a strategy endorsed by the Department of Urban Affairs and Planning, and not being as dense a development as that strategy would permit, I have no difficulty in accepting that in terms of density by itself the proposal is entirely satisfactory. 9. In terms of the scale of the development in the streetscape, I am satisfied that this development would not comprise something which was out of scale or character with the likely future scale and character of development in this street. I say that because considerable change can be anticipated in this street as a result of council's residential strategy, and indeed the various controls within the code. I find the development acceptable, notwithstanding that there are many single storey detached dwellings in the street. In determining this question one needs to look at what can be permitted, and the likely future character of the street which derives from the applicable controls. 10. As for the character of the building in the streetscape in terms of its architectural style, whilst this development would be somewhat different to what exists in the street, I do not find that it would be so different or that the existing single storey character should be so determinative that this proposal would be unacceptable. 11. The next issue that I should deal with is the matter of traffic safety associated with the ramp and possible conflict between emerging vehicles and children, particularly children from the school using the footpath where the ramp emerges onto Consett Street. Again, I find this arrangement to be satisfactory. This is because firstly, the ramp meets the requirements not only of council's code, but also the applicable Australian standard, and that standard is one which has as one of its underlying objectives pedestrian safety where ramps operate in conjunction with footpaths. That safety derives from appropriate sight lines such that vehicles emerging from a site can reasonably observe pedestrians using the footpath and, if necessary are able to stop. 12. The residents had some concerns that simply because the cars were emerging from a basement this could cause problems. I do not entirely understand their concerns but I see no reason why I should not accept the expert evidence provided by the traffic engineers that this arrangement would not be unsafe. I have also not been persuaded that the number of vehicles emerging from the site would be such, even taking into account the use of the footpath by children, that there would ever be a consequence beyond what is reasonable where vehicles cross footpaths from residential sites. The likelihood of an incident, particularly taking into account the available sight lines, would be no more than a remote possibility. I have also taken into account the fact that the main entry to the school is around the corner in Stuart Street. 13. The residents also expressed concern that particularly in the afternoons there is queuing of vehicles in Consett Street across the front of this site where the drivers of those vehicles are waiting to collect their children from the school. It is possible that such queuing might prevent people exiting the site but again given that peak usage of the egress ramp is likely to be earlier in the morning and later in the evening than when this queuing might take place it should not be a problem. I accept the submission that common courtesy would most likely prevail. 14. The final issue was that of the relationship between the school and the proposed dwellings. I have already indicated that I have no concern as to the general relationship between dwellings and a school, a relationship which in urban areas is not uncommon. In this instance we have an additional five dwellings, some of which are in closer proximity to the school by comparison with what presently exists. The concerns of the residents were that there would be overlooking of school rooms and also of the playground, and that there would also be overlooking from school classrooms and from the playground into this development. All of this is true, but again I think none of it is indicative of an inappropriate relationship between residential development and a school. 15. As far as overlooking from the school is concerned, I do not accept that given the configuration of this design that would be a matter of critical concern to this development. It will occur, and a prospective resident of this development would no doubt take that into account when deciding whether or not they would live in this development. As for overlooking from the development, any views to the school building are limited to bathrooms and high-level windows, and I find that arrangement to be satisfactory. Any overlooking from the development into the playground should also not be problematical. Again, it is a matter of choice for the prospective residents. More generally, future residents of this development may well become concerned about noise from the school, including from public address systems and from children playing. But again, that is a matter of choice, and taking into account that this would only occur during school hours when most people are at work or doing other things, this should not be a concern. 16. Indeed, all of those concerns which I have mentioned in terms of the relationship between the school and this development are certainly not matters that would overwhelm or cause me not to approve this proposal because it is consistent with the zone which together with the strategy provides for an increased density. 17. The Court orders by consent that: 1. The appeal is upheld. 2. Development Application No. 504/03 for a seven dwelling town house development at 84-86 Consett Street, Concord West, is determined by the granting of development consent subject to the conditions in Annexure "A". 3. No order as to costs. 4. Exhibits A and 2 are retained. _______________________ T A Bly Commissioner of the Court mp 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.