Land and Environment Court New South Wales Medium Neutral Citation: Staldone Corporation Pty Ltd v Lane Cove Council [2018] NSWLEC 1303 Hearing dates: 20, 27 April 2018, 3, 10 May 2018, 31 May 2018 (submissions) Date of orders: 21 June 2018 Decision date: 21 June 2018 Jurisdiction: Class 1 Before: Brown C Decision: The orders of the Court are: (1) The appeal is upheld. (2) Development Application No. DA 18/2017 for the demolition of three dwelling houses and associated structures, construction of a part 4 and 5 storey residential flat building comprising 37 residential apartments with part 2 and 3 basement car park levels accommodating 58 car spaces at 608-612 Mowbray Road, Lane Cove North is approved subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION: demolition of three dwelling houses and associated structures, construction of a part 4 and 5 storey residential flat building; condition relating to the imposition of a deferred commencement condition ramp grade Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Lane Cove Development Control Plan 2010 Texts Cited: Australian Standard 2890.2 Category: Principal judgment Parties: Staldone Corporation Pty Ltd (Applicant) Lane Cove Council (Respondent) Representation: Counsel: M Staunton (Applicant) Dr J Smith (Respondent) Solicitors: Lindsay Taylor Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2017/233003 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application No. DA 18/2017 for the demolition of three dwelling houses and associated structures, construction of a part 4 and 5 storey residential flat building comprising 37 residential apartments (18 x 1 bedroom, 16 x 2 bedroom and 3 x 3 bedroom units) with part 2 and 3 basement car park levels accommodating 58 car spaces (50 residential and 8 visitor spaces) at 608-612 Mowbray Road, Lane Cove North (the site). 2. The appeal was subject of a conciliation conference on 8 February 2018 under s 34 of the Land and Environment Court Act 1979 (the Court Act) by another commissioner. As no agreement was reached, the conciliation conference was terminated pursuant to s 34(4)(a) on 21 March 2018. The parties were referred to the Registrar on 3 April 2018 where it was agreed between the parties that further discussions had resulted in changes that would likely result in an agreement. The Registrar referred the matter to me as Duty Commissioner on 20 April 2018 having converted the matter back to the s34 conciliation process. 3. On 20 April 2018, the parties attended and unfortunately could not agree on whether a deferred commencement condition proposed by the council should be included on the consent. The condition states; Amended plans are to be prepared which demonstrate a maximum grade of 1 in 6.5 for the access ramp and other ramps within the basement where a service vehicle is required to travel in accordance with AS2890.1 and AS2890.2. The amended plans are to be submitted to Council for their consideration and written approval. 1. This condition addresses the grade for part of the ramp to and from the basement carpark. The matter was adjourned for further discussion by the parties and the ongoing discussion resulted in further mentions before me on 27 April 2018 and 3 May 2018 however without the condition being settled. 2. By email on 10 May 2018, the parties agreed on the following directions; 1.1 With the exception of the matter referred to in 1.2, the Commissioner presiding over the s34 conference notes that the parties have agreed on amendments to the plans and related conditions to resolve the matter. 1.2 The Council nevertheless contends that the areas of the ramp leading to the landing adjacent to the garbage room on the upper ground level that are in excess of a grade of 1:6.5 as shown on proposed long section DA14B are non-compliant with the relevant provisions of Council's Development Control Plan and AS2890.2 in particular and unsatisfactory in that regard. 1.3 The parties nevertheless consent to the Commissioner disposing of the proceedings under s34(4) of the Act on the basis of what has occurred at the conciliation conference, which relevantly comprises the following; 1.3.1 the draft amended plans, leave to rely upon which is sought by the Applicant and not opposed by the Council, subject to an order being made for the Applicant to pay the Respondent's costs thrown away as a result of the amendments made, pursuant to section 8.15(3) of the EP&A Act such amount be the subject of discussion between the parties with a view to quantification before judgment; 1.3.2 the draft conditions, in which the deferred commencement condition is the only matter in issue, and which the Council proposes and the Applicant says should be deleted; 1.3.3 a joint report to be prepared by the parties' traffic experts on the matter in paragraph 2 by 24 May; 1.3.4 any short written submissions (no more than 5 pages). 1.4 The joint report, the submissions of the parties, draft amended plans, conditions and relevant planning controls are to be provided to the Commissioner by 31 May. 1. The parties agree that the extent of the ramp grade in contention is that section leading to the landing adjacent to the garbage room on the upper ground level. It is in excess of a grade of 1:6.5 as shown on proposed long section DA14B, in particular: * a distance of 5.0m (1:5) on the inside of the ramp; and * a distance of 5.8m (1:5) and 5.9m (1:6.2) on the outside of the ramp. 1. Lane Cove Development Control Plan 2010 (the DCP) is the relevant council planning document for the dispute. Part Q addresses Waste Management and Minimisation. Appendix D to Part Q addresses Waste Recycling/Storage Rooms in Residential Flat Buildings and relevantly states; 1.5 Access The waste storage and recycling room must provide adequate space for manoeuvring 240 litre garbage bins and should also comply with the following: . . Access . e) The maximum grade of any access road leading to a waste and recycling room must be not more than 1:5 (20%). The turning area at the base of any ramp must be sufficient to allow for the manoeuvre of a 6.8m rigid vehicle to exit the building in a forward direction. 1. Part R of the DCP addresses Traffic, Transport and Parking. Clause 2.10 provides the follow provisions: a) Parking areas shall be provided and designed to allow for access and loading by Council's waste collection contractor. b) All parking areas for delivery and service vehicles must be designed in accordance with AS 2890.2:2002 Parking facilities—Off-street commercial vehicle facilities. On site delivery and service areas for residential flat buildings must be large enough to accommodate removal trucks. c) Developers should refer to Part Q - Waste Management & Minimisation for relevant dimensions and requirements. 1. There is no dispute that the ramp grade complies with the requirement in cl 1.5 to Appendix D to Part Q (where the maximum grade is 1:5) but not AS2890.2 in cl 2.10(b)(where the maximum grade is 1.65:1). 2. Expert evidence on the dispute was provided by Mr Andrew Morse for the council and Mr Craig McLaren for the applicant 3. Mr McLaren states that while the entry ramp from Mowbray Road to the servicing area will be used by occasional service vehicles, the internal ramp is fundamentally a ramp that serves basement car parking for some 57 cars and 1 bay (designed for use by a small garbage truck, small delivery trucks / vans and car wash bay). The internal layout is therefore appropriately designed in accordance with AS2890.2. Mr McLaren considers that strict application of AS2890.2 is not necessary in these circumstances as the vast majority of generated traffic will be by car-size vehicles with extremely low use by small trucks. Speed within the first short ramp section from ground level to the service bay will be low, being 10km/h or less. Mr McLaren notes that the 1:5 grade ramp segment lengths from ground level to the service bay is very short, being 5.0 m for the entry descent and 5.8 m for the exit ascent. Mr McLaren expects that drivers of trucks are highly likely to travel at low speed over this very short distance. While not considered necessary, Mr McLaren states that a maximum speed sign of 10km/h can be installed at the ground level entry for entering vehicles and that transverse grooves in the concrete surface could be applied to the short 1:5 segments to increase skid resistance. 4. Mr Morse states that the entry ramp from Mowbray Road to the servicing area within the development will be used by service vehicles and therefore AS2890.2 is applicable with regard to grades and geometry. The ramp grade requirements for single rigid vehicles (SRV's) are presented in a number of sections in AS2890.2. Clause 3.3.3 states: The maximum allowable grades and rates of grade change on circulation roadways including ramps (but excluding access driveways and parts of circulation roadway immediately adjacent to them (see Clause 3.4.4), shall be as specified in Table 3 1. Mr Morse notes that the grade satisfies Appendix D of Part Q of Council's DCP but not AS2890.2. SRV's or smaller commercial vehicles, according to AS2890.2; require a maximum grade of 1 in 6.5 with suitable transitions. It is Mr Morse's' opinion that the maximum gradients for service vehicles are defined in the standard to acknowledge the abilities of commercial vehicles and drivers, to reduce the risk of an errant vehicle through lack of traction or mechanical limitations (brakes, clutch, engine output/torque, etc.) and to manage the risk of load shift within the vehicle. Providing a ramp of grades greater than those specified in the standard increases those risks and in doing so does not represent an acceptable outcome with regard to safety. 2. While cl 1.5 to Appendix D to Part Q of the DCP states that the maximum grade of a ramp serving a waste room may be up to 1 in 5, the ramp within the development is proposed to provide all servicing associated with the building, which in Mr Morse's opinion goes beyond the scope of Part Q of the DCP. Clause 2.10(b) (Parking and access for service vehicles) of Part R of the DCP states: b) All parking areas for delivery and service vehicles must be designed in accordance with AS 2890.2:2002 Parking facilities-Off-street commercial vehicle facilities. Onsite delivery and service areas for residential flat buildings must be large enough to accommodate removal trucks. 1. Mr Morse acknowledges that Council permits ramps to be steeper than stipulated in AS2890.2 with regard to waste collection, however the requirements of Part R likely override this provision on the basis that service vehicles and drivers will use the ramp other than Council's trained waste management employees and the specific waste vehicles used by Council, e.g. retail deliveries, furniture removalists, self-drive truck hire etc. 2. Overall, Mr Morse concludes that the proposal to provide a ramp with a grade of 1 in 5 within the development, for use by service vehicles does not comply with the requirements of AS2890.2 and therefore has an unacceptable safety impact on users of the ramp 3. On this matter I agree with the conclusions of Mr McLaren. While there is clearly conflict between cl 1.5 to Appendix D to Part Q and cl 2.10(b) of Part R, I note that cl 1.5 seeks to specifically address the type of development sought in this application; that is residential flat buildings. Contrary to the evidence of Mr Morse, it would seem reasonable to accept that as the grade suggested in cl 1.5 was specifically for residential flat buildings; "retail deliveries, furniture removalists, self-drive truck hire" would have been considered in coming to the grade in cl 1.5. 4. Further, I am not satisfied that the potential consequences outlined by Mr Morse, such as "an errant vehicle through lack of traction or mechanical limitations (brakes, clutch, engine output/torque, etc.)" and to manage the risk of load shift within the vehicle are such a reality or likelihood that the ramp should be designed to strictly comply with AS2890.2, particularly given the provisions of cl 1.5. When combined with the limited area where the grade exceeds 1:5 and the principal use by motor vehicles rather SRV's, I accept that the condition sought to be imposed by the council can be deleted. 5. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. DA 18/2017 for the demolition of three dwelling houses and associated structures, construction of a part 4 and 5 storey residential flat building comprising 37 residential apartments with part 2 and 3 basement car park levels accommodating 58 car spaces at 608-612 Mowbray Road, Lane Cove North is approved subject to the conditions in Annexure A. ___________ G Brown Commissioner of the Court Annexure A SR (155 KB, pdf) Amendments 29 June 2018 - Pursuant to UCPR 36.17, the slip rule, by consent of the parties amend order (2) and Annexure A. Correction to typographical errors at paragraphs [1] and [18]. 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. Decision last updated: 29 June 2018