James Patrick Doyle v Hornsby Shire Council [2015] NSWLEC 1576

Land and Environment Court New South Wales

Medium Neutral Citation: James Patrick Doyle v Hornsby Shire Council [2015] NSWLEC 1576 Hearing dates: 26 July, 9 August, 28 October 2016 and 13 February 2017 Date of orders: 13 June 2017 Decision date: 13 June 2017 Jurisdiction: Class 1 Before: Dixon C Decision: (1) Appeal dismissed. (2) The exhibits are returned. Catchwords: MODIFICATION – domestic driveway – adequacy of plans - modified design exceeds the maximum 25% gradient allowed under the AS 2890.1.2004 adopted by the Council's DCP – justification to vary the AS not made out on the facts Cases Cited: Wiggin v Pittwater Council [2006] NSWLEC 286 Dasreef Pty Ltd v Hawcher [2011] HCA 21 Category: Principal judgment Parties: James Patrick Doyle (Applicant) Hornsby Shire Council (Respondent) Representation: J P Doyle, (solicitor) Litigant in person (Applicant) S Nash (counsel) (Respondent) Solicitors: Adam Seton, Marsdens Law Group (Respondent) File Number(s): 2016/152696

JUDGMENT 1. COMMISIONER: In October 2015 the Applicant, James Doyle, purchased a battle axe allotment known as Lot 12 in Deposited Plan 735549, 80A Manner Road, Hornsby (the site). It is accessible via a common driveway that serves adjacent properties at 80, 82, 84 and 86 Manor Road. 2. Some years before his purchase of the Site, on 20 December 2001, Hornsby Shire Council had granted development consent (DA/1825/2001) for the erection of a dwelling house, swimming pool and associated works on the land (the consent). The consent contained a deferred commencement condition in respect of access. It required the submission of engineering plans complying with the specifications in Australian Standard (AS) 2890.1.2004 - in particular, a driveway design with a maximum gradient of 1:4 (25%) and maximum transition for gradient change of 8% per plan metre, noting that the gradient of the inside edge of any internal curve was to be a maximum grade of 25%. According to the agreed facts the previous owner had obtained Council approval for an engineering design that complied with the Council's deferred commencement condition. It necessitated a 3.4 metre elevated structure on the bend of the driveway between chainage 21 and 40 because there is a fall of approximately 40 metres across that portion of the site (exclusive of the right of way/ driveway). 3. On 26 February 2016 the Applicant sought approval from the Council to amend the consent to allow for an alteration of the approved driveway to more closely follow the natural slope of the land. The new design exceeds the maximum 25% gradient prescribed by the AS2890.1.2004 (which the Council has adopted as the appropriate gradient in the Hornsby Development Control Plan 2013 (HDCP)). The detail of the modified driveway is shown on the plans dated October 21, 2016 (Exhibit A), and drawings 5A and 5B prepared during the hearing by Angelo Vardouniotis, the Applicant's engineering consultant (Annexure D to his Statement of Evidence dated 9 February 2017 (Exhibit J)). 4. Mr Doyle's modification application (1825/1001/A) under s 96(1A) of the Environmental Planning and Assessment Act 1979 (EP&A Act) to modify the consent 1815/2001 was lodged with the Council on the basis that the development involved minimal environmental impact. As such, it did not need to be formally notified or exhibited in accordance with the provisions of the HDCP. Before the Council had determined the application, Mr Doyle appealed to the Court under s97 of the EP & A Act on a deemed refusal basis. It was allocated to the residential stream of the Court's Class 1 jurisdiction and dealt with under s34AA of the Court Act.