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. The objectors' evidence 5 The Court heard the evidence of Mr John Griffin, the Chairman of Crows Nest Main Street, an association of Crows Nest retailers. Mr Griffin's concern was that the additional 10 spaces might encourage an application for a supermarket or a large fruit market in the future. Given that my judgment makes it clear that the refusal of the supermarket element of the original application was based on its inconsistency with the objectives of the zone, and assuming that these objectives remain the same, it seems to me that Mr Griffin's concern is unjustified. 6 The Court also heard the evidence of Ms Lauren Moore, who lives at 8 Tarella Place, adjoining the development. Her concern was that the environmental quality of Amherst Street would suffer as a result of the increased traffic generation of the ten additional parking spaces. While she agreed that there was a decrease in traffic volumes in Amherst Street, she attributed it to the construction traffic near the site that deterred motorists from driving through the street. She said that construction traffic continued late into the night. 7 The Court read the letters of the objectors who did not give oral evidence. A separate letter by Mr Don Clinch was tendered as Exhibit 3, in which Mr Clinch questioned the integrity of Mr Coady's report. The expert evidence 8 The s96 application was accompanied by a report by Mr Pindar, the Court-appointed traffic expert at the original hearing. Mr Pindar pointed out an error in paragraph 42 of my judgment. Correct reasoning would have concluded that a 3% decrease in traffic in Amherst Street would justify an additional 28 (rather than 14) non-residential parking spaces. On that basis, the applicant would be justified to apply for a further 14 spaces. 9 The application was also accompanied by a report by Masson Wilson Twiney, traffic consultants, whose survey of Amherst Street after the opening of the off-ramp from the Expressway found that there was a decrease in traffic of at least 15%. 10 The council's Executive Assessment Planner, Mr Geoff Mossemenear, reported to the council in September 2007. The report makes two conclusions. First, the traffic generation from the additional ten parking spaces would not require traffic calming in Amherst Street. Second, the increase in parking would not lead to large-scale inappropriate uses. Mr Mossemenear recommended approval. The council did not accept the recommendation; hence the current appeal. 11 The single traffic expert in the current appeal is Mr John Coady, a traffic consultant. He concluded that a refusal of the application on traffic grounds is neither appropriate nor justifiable. Mr Coady heard the evidence of Mr Griffin and Ms Moore and read Mr Clinch's letter. He did not change his conclusion. Consideration 12 It seems to me that, in order to uphold the appeal, I only need to conclude that my original assumption of a 3% decrease in traffic volumes in Amherst Street following the opening of the off-ramp from the Expressway is not an overestimate. If the decrease is 3% or more, then a further 14 parking spaces are justified. 13 Traffic surveys carried out by the applicant's consultants suggest that there is a decrease in traffic volumes of 15%. Anecdotal evidence by Ms Moore and other objectors suggests that some of that decrease may be due to the construction traffic in the street. Even if that is correct, it is likely that at least one-fifth of the decrease is due to the off-ramp. 14 The council's and the objectors' other concern appears to be that the ten additional spaces will be the basis of future proposals for large-scale retailing. The reason given in my judgment for not allowing large-scale retailing is its inconsistency with the zone objectives. That reason will continue to be valid while the zone objectives remain the same. The concern is without basis. 15 I note that the s96 application is supported by · the applicant's traffic consultants, · the Court-appointed traffic expert in the original appeal, · the single traffic expert in the current s96 appeal, and · the council's Executive Assessment Planner. 16 To the extent that the council and the objectors continue to hold concerns, such concerns are without the support of any expert opinion, indeed against the opinion of four experts, two of whom were chosen by both parties, and one of whom is a planner employed by the council. I have no basis on which to refuse the application. The appeal is therefore upheld. Orders 1. The appeal is upheld. 2. The application under s96 of the Environmental Planning and Assessment Act 1979 to vary the consent issued by the Court 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 by increasing the number of non-residential parking spaces from 70 to 80 is approved subject to the conditions in Annexure A. 3. The exhibits are returned except Exhibit A. ___________________ Dr John Roseth Senior Commissioner 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.