Land and Environment Court of New South Wales CITATION : Rockwall No. 7 Pty Ltd and Mistrina Pty Ltd v Rockdale City Council [2004] NSWLEC 455 APPLICANT Rockwall No. 7 Pty Ltd and Mistrina Pty Ltd PARTIES : RESPONDENT Rockdale City Council FILE NUMBER(S) : 10093 of 2004 CORAM: Roseth SC KEY ISSUES: Development Application :- Erection of a mixed-used dwellings and commercial retail suites and basement carparking - LEGISLATION CITED: CASES CITED: DATES OF HEARING: 12/05/2004, 27-28/07/2004 EX TEMPORE 07/28/2004 JUDGMENT DATE : APPLICANT Mr G Bingham, solicitor SOLICITORS Deacons LEGAL REPRESENTATIVES: RESPONDENT Mr P Vergotis, solicitor and Mr G Reilly, solicitor SOLICITORS Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 28 July 2004 10093 of 2004 Rockwall No. 7 Pty Ltd and Mistrina Pty Ltd v Rockdale City Council JUDGMENT 1 This is an appeal against the deemed refusal by Rockdale City Council of a development application to erect a mixed use development building containing 48 residential units, three commercial retail suites and basement carparking on Lot 901 DP 801298, Lot 91 DP 657206 and part Lot 92 DP 6770 known as 340-344 Bay Street, Brighton-Le-Sands. The applicant and the council have come to an agreement on the proposal and now seek consent orders from the Court. 2 The proceedings have been joined by an intervener, the owners corporation of Strata Plan 62254, in effect the residents of the Ocean View Apartments. The issues between the intervener, on the one hand, and the applicant and the council, on the other, have been resolved except for the issue of traffic. The traffic issue is the inadequacy of the right-of-way to service as access in and out of the proposed development. 3 The Court heard the evidence of several objectors who expressed concern on traffic, flooding, view loss, overlooking and the mix of dwellings. The traffic issue formed the main part of the hearing and I shall deal with it further on. The issue of flooding has now been resolved. The matter of view loss and overlooking is not a reason for refusal, given the very, high density that this site has been selected for in the local environmental plan. As far as a mix of dwellings is concerned, I do not think that this is an issue for objectors. In any case, it is not a matter of substance. 4 The main issue that remains is that of traffic, and on that matter the Court heard the evidence of Mr Oleg Sannikov who is the jointly appointed expert by the council and the applicant, and of Mr Dick Van den Dool who was retained by the intervener. Both Mr Sannikov and Mr Van den Dool are traffic engineers and gave concurrent evidence. 5 It was common ground between them that the width of the right-of-way through which access to this proposal is proposed, is 5.1 m and falls short of what Australian standards recommend, i.e. 5.5 m for vehicular access, and 6 m for trucks, although there is some question whether that standard applies to this short driveway. I shall assume for the moment that it does. Mr Sannikov has examined the existing traffic situation which he found to be acceptable taking into account the time of delay and the number of movements that now occur. He projected the number of movements in peak hour that will occur with the proposal and found that the change in waiting times is not unacceptably lengthened. He did not agree that there is unusual or unacceptable danger to pedestrians who are passing in Moate Avenue. Mr Van den Dool did not agree. He considered that the existing situation is unacceptable and that the proposed situation would be worse. He was concerned that two cars will not be able to pass each other in the right-of-way which is only 5.1 m, and he was concerned that the additional traffic and the difficulty caused by the narrow right-of-way would result in increased danger for pedestrians who are passing in Moate Avenue. 6 Mr Sannikov's evidence was that, while the width of the right of way was not what one would recommend in a new development, the existing and projected traffic were low, the number of semi-trailers (which are prohibited from entering and exiting between 3 am and 7 pm) is around one a day. He did not accept that the traffic situation was unacceptable and sufficient reason for refusing the proposal. 7 The basis of Mr Van den Dool's evidence was that the access into the site should be from Bay Street. I note that the council's Development Control Plan 18 prefers access not to be from Bay Street. I take judicial notice of the fact that the RTA rarely permits access from arterial roads. I note that the question has not been referred to the RTA because the applicant had followed the council's Development Control Plan. 8 In the event, I do not think that I have any option other than to accept Mr Sannikov's evidence who was appointed by both parties and has prepared three reports. Refusing this application on the basis of the right of way being 400 mm narrower than the Australian standards would be a drastic step and would frustrate any further development of this site. 9 Before turning to the orders, I was asked to make decisions on conditions. Condition DC6 was amended with everyone's consent including that of the intervener. Condition DC8 suggests that the floor space ratio should be exactly 3:1. In effect the floor space ratio is exceeded to a minor extent and the recommendation of both the council's and the applicant's planning consultant is that the extent of non-compliance can be justified. Therefore I delete Condition DC8. Condition DC10 suggests that there should be amended plans which will make the proposal comply with the Parking and Loading Code of council. I note that in Condition DC6 a minimum of 63 resident and visitor spaces is required. Any other requirement coming three pages later would tend to be read as inconsistent even though the number 63 is preceded by the word minimum. I therefore delete Condition DC10. 10 By agreement I have added a sentence to Condition 41: "Construction traffic shall be from Bay Street". Condition 41G is deleted because it would prevent the Coles Supermarket functioning. 11 The orders of the Court are: 1. The appeal is upheld. 2. Development application to erect a mixed-use development containing 48 dwellings, 3 commercial/retail suites and basement parking on lot 901 DP 801298, lot 91 DP 657206 and part lot 92 DP 6770, known as 340-344 Bay Street, Brighton-Le-Sands, is determined by the granting of consent subject to the conditions in Annexure A. 3. The exhibits are returned except Exhibits A and 4. ____________________ Dr John Roseth 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.