Hamptons Development Group v North Sydney Council [2007] NSWLEC 814

Land and Environment Court of New South Wales

CITATION : Hamptons Development Group v North Sydney Council [2007] NSWLEC 814

Applicant: Hamptons Development Group Pty Ltd PARTIES : Respondent: North Sydney Council

FILE NUMBER(S) : 10938 of 2007

CORAM: Roseth SC

KEY ISSUES: Development Application - Section 96 Application :-

DATES OF HEARING: 13/12/2007

EX TEMPORE JUDGMENT DATE : 13 December 2007

Applicant: LEGAL REPRESENTATIVES: Mr C McEwen, SC instructed by Mr V Conomos, solicitor of Pike Pike & Fenwick Respondent: Mr C Drury, solicitor of DLA Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Roseth SC

13 December 2007

10938 of 2007 Hamptons Development Group Pty Ltd v North Sydney Council

JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by North Sydney Council (the council) of an application under s96 of the Environmental Planning and Assessment Act 1979 to vary the consent issued by the Land and Environment Court of NSW on 20 July 2006 for a mixed use development on lot 13 DP 8089819, lot 1 DP 846797 and lot 1 DP 936507, at the corner of Amherst and Miller Streets, Cammeray. The s96 application seeks to increase the number of non-residential parking spaces from 70 to 80.

Background 2 The applicant submitted the s96 application in April 2007, seeking an increase from 70 to 92 non-residential parking spaces. In August 2007 the applicant amended the application to an increase of ten spaces, ie from 70 to 80 spaces. Following notification of the reduced increase, the council received submissions that are in evidence in the council's bundle, Exhibit 1. The objections appear to spring from two concerns: first that Amherst Street will become too busy as a result of increased traffic generation; and, second, that the increase in parking will encourage large retail uses. 3 Mr Graham Pindar was the Court-appointed traffic expert in the original case in 2006. His evidence was that 56 non-residential parking spaces in the development would maintain the existing environmental quality of Amherst Street without the requirement for traffic calming. However, he had not taken into account the likely reduction in traffic that would occur as a result of the (then) future off-ramp from the Expressway to Military Road at Falcon Street. He agreed that a reduction would occur, though he did not estimate its size. I made the conservative assumption of 3% reduction due to the off-ramp, as reflected in paragraph 42 of my judgment dated 20 July 2006, ie: I return to the likely reduction of traffic in Amherst Street, a proposition with which Mr Pindar agree, though he did not put a figure on it. It seems to me that a highly conservative estimate of reduction would be 3%. Mr Pindar relied on a survey that showed the weekday volume between 3pm and 5pm to be around 460 vehicles/hour, so 3% reduction would b e a reduction of about 14 vehicles/hour. This suggests that 70 non-residential spaces would provide the applicant with sufficient flexibility for future non-residential uses, while at the same time 70 spaces would not require traffic calming. 4 The above reasoning led to the maximum of 70 non-residential parking spaces, a restriction that was incorporated in the conditions of consent.