Land and Environment Court of New South Wales CITATION : Mann One Pty Limited v Willoughby City Council [2006] NSWLEC 618 APPLICANT Mann One Pty Limited PARTIES : RESPONDENT Willoughby City Council FILE NUMBER(S) : 10400 of 2006 CORAM: Moore C Development Application - Subdivision :- KEY ISSUES: Traffic Conditions of consent . Mison & Ors v Randwick City Council (1991) 23 NSWLR 734; CASES CITED: Weal v Bathurst City Council (2000) 111 LGERA 181; . DATES OF HEARING: 18 and 19 September 2006 EX TEMPORE JUDGMENT DATE : 09/19/2006 APPLICANT Mr G Green, solicitor Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Ms S Pritchard, barrister INSTRUCTED BY Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C 19 September 2006 06/10400 Mann One Pty Limited v Willoughby City Council This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against, in the first instance, the deemed refusal by Willoughby City Council (the council) of an application to subdivide an existing site which has frontages to Alleyne Street, Mann Street and Gibbes Street, Chatswood (the site). The site was formerly occupied by a Tip Top bakery. It is proposed to subdivide the existing allotment into two separate allotments running north-south – with one allotment, Lot 203, to have a frontage to Alleyne Street and the second, Lot 204, having frontages to Gibbes and Mann Streets. 2. On 22 August 2006, the council granted development consent to the subdivision subject to conditions. A number of those conditions have become the subject of these proceedings. 3. The principal contested condition deals with the question of what should be the method of access and/or egress from Lot 203. 4. During the course of the view, I had the opportunity to hear evidence from a number of concerned residents; to hear in the background the traffic passing on Alleyne Street; and to observe the topography of that streetscape. I accept that the concerns of the residents are genuinely and sincerely held and that they have some substantial basis for their concerns. 5. In response to their concerns, the council has proposed, in its original terms of conditions of consent, that the applicant should provide a right of carriage way from Lot 203 over Lot 204 to Gibbes Street. That proposed condition was in the following terms "The creation of a right of carriage way of variable width to allow for the two-way movement of large trucks over proposed Lot 204 from the existing access driveway in Gibbes Street to the boundary between Lots 203 and 204 to service proposed Lot 203. The right of carriage way shall facilitate access to proposed Lot 203 from Gibbes Street. In relation to any future application for development of the lots, the applicants prepare a formula to be approved by council for sharing the traffic load between Alleyne and Gibbes Streets' access points in order to protect the residential amenity of the surrounding streets". 6. I also had, during the course of the view, the opportunity of inspecting not merely the topography and location of residences in Alleyne Street but to walk via Mann Street into Gibbes Street and onto the site. I had the opportunity to inspect the split level intersection between the upper and lower portions of Gibbes Street fronting proposed Lot 204 and to inspect where the proposed right of carriage way was, in broad terms, to be located. 7. During the course of the view, I asked Ms Pritchard, barrister for the council, whether there was some specificity as to what was proposed by the council as the right of carriage way as I was concerned that a clause in the terms, set out at (5), ran significant risk of offending against the principles set out by the Court of Appeal in either Mison & Ors v Randwick City Council (1991) 23 NSWLR 734 and/or Weal v Bathurst City Council (2000) 111 LGERA 181 as to certainty, finality and dealing with matters without inappropriate delegation. I was informed, at that time, that the council had not considered what such a right of way might comprise. 8. At the time of returning to Court after the view, I was provided by Ms Pritchard with a schematic of a possible right of way based on two-way truck movements – which schematic was tendered as Exhibit 7. It shows a proposed right of way that would run effectively in an east-west path from the end of the western section of Gibbes Street directly to the centre of the aperture in the existing structure which will remain on Lot 203. 9. A right of way as proposed would, I am satisfied, have a significant and unacceptable impact on the utility of the northern portion of proposed Lot 204. 10. It would require the demolition of an existing awning serving the loading dock of proposed 204 and it would have the effect of requiring the removal of and put a restriction on a significant number of parking spaces that would be required as part of any future use of Lot 204. 11. It was apparent to me, from any simple consideration of this schematic, that those who had drafted it had had no regard to the restrictions on use of the loading dock or parking area of Lot 204. It was simply a "back of the envelope" proposition fundamentally incapable of rational implementation without significant adverse impact on Lot 204. 12. I was then provided, as a consequence of further consideration of the matter by Mr Pindar, the court-appointed traffic expert, with a revised option for a right of way (that would involve a one-way movement of all traffic rather than two-way truck movements) through Lot 204 to exit onto Gibbes Street. 13. It was the evidence of Messers Pindar, Brocklebank and Varga (the latter two being the traffic experts for the council and applicant respectively) that such a right of way, if imposed, would provide a significantly more advantageous traffic outcome for the residence of Alleyne Street. 14. However, it was also the evidence of Mr Varga and Mr Pindar, which I accept (contrary to the evidence of Mr Brocklebank, who I considered not to have prepared himself adequately on the issue of what would be the adverse impacts on Lot 204 of such a right of way), that such a right of way would, in addition, also have unsatisfactory adverse impacts and impose restrictions on the use of Lot 204. 15. I am satisfied that, had I imposed such a right of way, it would have required, for it to be effective, fencing off of the right of way from the outside yard area of Lot 204; it would have eliminated some of the parking in that outside yard area; it would have a significant impact on some of the remaining parking in that outside yard area; and, in practical terms, as I have noted the evidence of Mr Pindar with respect to the area in the north-western corner of proposed Lot 204, the only possible functional use of that area would be for long term storage because of the likelihood that there would be approximately one car or vehicle movement per minute during peak hour across the face of that area. 16. I am satisfied that, if I were to have imposed such a right of way, the only appropriate way to have done so would have been to require its alienation in fee simple to Lot 203. 17. It was the evidence (which I accept) of Messrs Pindar and Varga that there would have been a necessity to redesign and reconstruct at least some aspects of the loading dock of (and possibly have a greater impact on) the existing building on Lot 204. 18. I am satisfied in that regard that that would be an unreasonable requirement under all the circumstances. 19. Had the council seriously considered the question of whether all vehicle traffic from the site should exit to Gibbes Street, it would have been in the council's power to have refused the application for subdivision and to have contested the case on that basis. 20. Having agreed, however, that subdivision was appropriate, the remedy that the council has proposed for the impact on the residents of Alleyne Street was ill considered, in my view, at best. 21. With respect to the impact on the residents of Alleyne Street, as I indicated earlier, I have significant sympathy for their position – particularly given that, some ten or so years ago, Tip Top Bakeries had agreed to close all vehicle access to the site from Alleyne Street. That was not required or supported by any public positive covenant in favour of the council and, to the extent that I have evidence of anything to do with that period, was not required by any condition of any consent applicable to the Tip Top site at the time. 22. I am satisfied that, however, there are matters that are appropriate to be required, at subdivision stage, in order to provide some reasoned amelioration to the impact of increased traffic on the residents of Alleyne Street. I am satisfied that to impose them at the present time is appropriate so that there is certainty of their application and to require them as restrictions on user of Lot 203 so that any potential purchaser of Lot 203 is on notice of them. 23. Mr Smith, consultant planner for the applicant, advanced a number of measures which he said would improve the position for the residents of Alleyne Street. Mr Pringle, the council's planner agreed with them (although Mr Pringle did not concede that these would result in an acceptable outcome). Mr Smith proposed the following: - a restriction on use of the site to trucks of no greater than 8.3 metre body rigid trucks; - trucks operate on a left turn in, left turn out basis; and - the permitted hours of use of the site be 6.30am to 7pm Monday to Friday, 7am to 3pm on Saturdays and no permitted use on Sunday. 24. I am satisfied that, to a very great measure, they are appropriate. However, Mr Smith conceded during the course of his concurrent evidence with Mr Pringle, that it would be a further improvement for the amenity of the residents of Alleyne Street for all traffic movements to be left-turn in and left-turn out. I consider that it would be appropriate for this and the three restrictions proposed by Mr Smith to be required to be placed as restrictions on user on proposed Lot 203. 25. The final matter that I need to determine is the question of when a fire rated wall should be constructed between Lots 203 and 204 along the present open boundary of them – there being at the present time no application before me for future use of either Lot and with the applicant in these proceedings agreeing to surrender the present Tip Top Bakeries consent that applies to the site (the consequence of which will be that there will be no permitted use on either Lot 203 or 204). 26. Given that there are to be separate entrances and separate allotments, there may be issues between future purchasers of the separate allotments as to co-operation in the building of the fire wall if the occupations of the two allotments do not proceed in reasonably proximate parallel. Given that the fire wall is to be constructed along the common boundary and form a party wall between the two allotments, I do not consider it would be unreasonable to require the applicant to construct that fire wall as part of the subdivision approval. 27. The timing of such construction (as with a number of other conditions that are in contention between the parties as to the timing of their implementation) is, in my view, a matter capable of being resolved in light of the determination I have made with respect to the right of carriage way and the fire wall. 28. I therefore propose to uphold the appeal to the extent that it will require the deletion of condition 32 and all other related attendant conditions dealing with the proposed right of carriage way and the requirement by condition for the construction of the fire wall and the various restrictions on user to protect the residents of Alleyne Street. The orders of the Court will confirm this and Exhibits 7, A, C and D will be retained. 29. I therefore give the following directions. 1. The applicant is to file and serve a revised plan of subdivision by the close of business on Friday 22 September 2006; 2. The respondent is to file and serve revised settled conditions by the close of business on 29 September 2006; 3. The matter is set down for call-over on 5 October 2006; 4. The conditions are to be filed electronically in accordance with the practice direction 2 of 2005. A separate court e-mail, not e-court, a separate court e-mail is to be lodged advising the Court of the filing of those conditions; 5. If directions one, two and four are complied with I will make orders in chambers and vacate the call-over; and 6. Liberty to re-list on two days notice of any matters in dispute arising out of directions (1) and (2). Tim Moore 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.