Land and Environment Court of New South Wales CITATION : Herriott v Armidale Dumaresq Council [2006] NSWLEC 250 APPLICANT Iain Herriott PARTIES : RESPONDENT Armidale Dumaresq Council FILE NUMBER(S) : 11004 of 2005 CORAM: Hussey C KEY ISSUES: Development Application :- Construction of rural dwelling, provision of all weather access LEGISLATION CITED: Dumaresq Local Environmental Plan No. 1 Development Control Plan No.2 - Erection of Dwellings DATES OF HEARING: 9-10/03/2006 EX TEMPORE JUDGMENT DATE : 03/10/2006 APPLICANT Mr I Hemmings, barrister LEGAL REPRESENTATIVES: RESPONDENT Ms M Hawley, solicitor SOLICITORS Lindsay Taylor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 10 March 2005 11004 of 2005 Iain Herriott v Armidale Dumaresq Council JUDGMENT The following decision and orders were handed down extempore on 10 March 2006. Some minor alterations and additions have been made in the interests of clarity and completeness. Background 1 This appeal was lodged against conditions of consent imposed on a development application for the construction of a dwelling on a rural lot at 550 Cunnawarra Trail, Point Look Out. The proposed dwelling is to be constructed with external walls of local stone on blockwork, a colorbond roof and an on-site waste management system. 2 The conditions appealed against are: 6. The applicant shall construct Cunnawarra Fire Trail from the end of the existing construction of Point Lookout Road to a point 20 metres past the proposed point of access to the subject property. Construction shall be a minimum 5.6 metre wide pavement, including shoulders, with a minimum 200 mm pavement depth (actual pavement depth to be ascertained by CBR testing of the existing subgrade material). In this regard the applicant shall provide detailed engineering drawings of the proposed construction. Additionally the applicant is advised that some sections of the existing track may not be located within the road reserve, and consequently the formation may require relocation to ensure the constructed road, including all formation structures and batters are contained within the dedicated road reserve. Relevant work to be completed in accordance with Council's standards prior to the issue of a Construction Certificate for the dwelling. 7. The applicant shall construct a safe all-weather vehicle access at the junction with Cunnawarra Fire Trail in accordance with Council's specification for property access (copy attached). The junction is to be constructed at least to gravel road standard. A concrete pipe culvert with not less than 375 mm diameter, with standard concrete headwalls may need to be constructed at a suitable location relative to the shoulder drain and clear of the edge of the road carriageway. The entrance shall be located such as to provide a minimum Entering Stopping Sight Distance of 160 metres in both directions. Prior to the commencement of construction, the applicant shall confirm the location with Councils Development Engineer. Relevant work to be completed in accordance with Council's standards prior to the issue of a Construction Certificate for the dwelling. 3 These conditions deal with the access arrangements to the new dwelling and are relevant because of the remoteness of the lot and the standard of the existing access road. However, the applicant has subsequently agreed to Condition 7, relating to the internal access arrangements. 4 The full details of the site and proposal, together with the relevant planning controls are contained within the Statement of Basic Facts, on which I rely. The site 5 It is known as Lot 31, DP 751447, Cunnawarra Trail and it has an area of approximately 36.8 ha. The Cunnawarra Trail runs along the western boundary of the site and is currently an unsealed track, of variable width – but in the order of 4 m. The access to the proposed new dwelling is via a gravel track off Cunnawarra Trail and it forms a U shape link with a further entry point some 0.75 km to the south. The area is characterised as rural agricultural with considerable forest vegetation. 6 A National Park is located along the opposite side of the property boundary. Planning controls a) Dumaresq Local Environmental Plan No. 1 : Under which the site is zoned 1(a) General Agriculture and the dwelling house is permitted under the provision of cl 13(b), on the basis of it being an existing holding, providing the council is satisfied : i) that there will be adequate vehicular access to the dwelling house; … ii) the erection of the dwelling house … b) Development Control Plan No. 2 - Erection of Dwellings: This DCP applies to all land covered by the Dumaresq DCP. It contains a number of objectives including: To ensure that existing rate payers (except for the developer) are not required to meet additional costs for the provision of, or the upgrading of, existing amenities and services required because of subdivisions or the general erection of additional dwellings in the Armidale Dumaresq Council; 7 Clause 6 requires all dwellings to have legal and properly constructed access, subject to the status of the accessway. Where the access is by public road Clause 6 provides: Where a new road is to be constructed it shall be constructed in accordance with council's specification for access and subdivision roads. Each new dwelling is to be provided with an adequate all weather access to enable satisfactory passage from the public road into the allotment. This will generally require gravelling from the road shoulder to the boundary and, in most cases, will require the provision of a piped gutter crossing in accordance with Council's specification for the property accesses. c) Policy POL 092 - Roads 8 The objective of this policy is to effectively manage and maintain the network of public roads within council's area of responsibility. The policy provides that where council is requested to accept responsibility for the ongoing maintenance of a dedicated public road, which is not on council's list of maintened roads, the public road must first be upgraded in accordance with Council's Engineering Code at the expense of the land owner(s) making the request. The evidence 9 Detailed evidence on behalf of the council was presented by: + Mr A Harvey, council's transport operations manager (Exhibit 3) 10 For the applicant, evidence was presented by: + Mr G Griffiths, consulting engineer and his report is (Exhibit A) 11 In response to the access issue, both engineers inspected the access road and Mr Griffiths undertook some material sampling to test the adequacy of the road material. He also undertook C.B.R. testing (California Bearing Ratio) to check the bearing capacity of the subgrade of the road. From this he concluded: Access along this road to the Lot 31 access driveway may present some difficulties for 2WD vehicles during or after prolonged wet weather. The road in its current condition and level of usage is considered to be adequate for all weather access via 4WD vehicles with care. The Cunnawarra Trail is considered to be a single lane road serving only two occupied properties". 12 With respect to the incremental change in traffic volumes due to the proposed development, he did not consider the standard and safety of the road would be rendered insufficient because of the level and nature of the development application. 13 In his evidence, Mr Harvey provided details of the road status in the context of the planning controls. On the basis of his assessment, sections of the road were unsatisfactory to provide the appropriate level of access to the new dwelling. 14 Considering the disparate conclusions of the engineering experts, further conferencing was undertaken and this resulted in agreements regarding the appropriate road criteria for this relatively isolated section of unsealed, rural road. This agreement that the road should satisfy the following: + 40 km/hr design speed + Safe sight distance SSD of 60 m + provide reasonable access for the standard 85% vehicle (2WD) 15 The application of this critera to the subject road then resulted in some further agreements on the adequacy of sections of road. For convenience the various sections of the road were referred to: 0 - Cl Start 0-1 - Satisfactory access, 1-2 - Section needs widening and resurfacing, 2-3 - Acceptable considering its secondary access status 16 The conference addressed the two principle components of this road, being its alignment and its surface. The engineers agree that the alignment requires some upgrading, by way of widening at appropriate sections so as to achieve the 60 m SSD and this involves some additional construction works. They agreed that the existing road is not suitable for all weather access by 2WD and also that safety signage should be provided. 17 But there were still some differences of opinions regarding the adequacy of the road surface, considering its surface composition and roughness to accommodate the agreed 85% vehicle, which would be a 2WD, generally under all weather conditions. 18 Accordingly this aspect was further reviewed at a subsequent site inspection today, resulting in the assessment sheet and estimate of works contained in Exhibit "B". 19 On the basis of these estimates Mr Hemmings' initial submission is that the additional cost of this resurfacing work was unreasonable in the context of this development application. However, the cross examination of the engineering experts indicated the additional resurfacing work was relatively minimal and could be undertaken within construction time frame (i.e. 3 days) when the other agreed realignment work was to be undertaken. 20 The clarification by Mr Harvey that suitable road surfacing material could be obtained within the road reserve or close proximity to the site addresses to a reasonable extent the issue about the unreasonable additional costs. Conclusions 21 Having considered the evidence, submissions and undertaken a view, I am satisfied that the further detailed assessment of the access road to this development, now allows the appealed conditions to be amended. 22 The principal contested issue in this matter concerns the adequacy of access to the new approved dwelling house. Clause 13(b) and (c) requires the consent authority to be satisfied on the adequacy of the access arrangements and this is complimented by DCP No. 2 provisions. 23 I accept the evidence that the location of the site is somewhat remote and the incremental vehicle generation small. Notwithstanding this, it is likely there will be various people visiting to the property (and I note it is in a most attractive scenic locality adjacent to the National Park). Accordingly it is reasonable to assume some visitors will drive 2WD vehicles, others will drive 4WD. 24 Therefore as a general rule, I consider it appropriate that where satisfactory vehicle access is required in the general context, such public access should be suitable for a 85% vehicle, which is 2WD and generally accessible in all weather conditions. I do not consider predominant 4WD access is adequate. 25 On the basis of yesterday's site inspection, which was carried out in a typical 85% type vehicle, the existing road surface required additional driver care. Under difficult conditions such as wet weather, bush fire or other emergency situations – particularly at night time, I consider sections of this road would be hazardous under certain conditions. In this regard I also note Mr Harvey's evidence that in his experience the existing road surface is not satisfactory compared to all other council maintained accessways in the area. 26 Part of this hazard would be reduced to an acceptable level of risk by the agreed upgrading of the road alignment to provide the widening to facilitate passing of vehicle on the basis of a 60 m SSD. I accept the engineers' agreement is satisfactory in this regard. 27 With respect to the road surface, I note that this partially relates to section 1-2, which is the lead-in road to the amended main entry point to the property. The further assessment by the engineers revealed only certain sections needed to be regraded and as appropriate material can be obtained locally, I consider that an appropriate balance between the property owner gaining consent for the dwelling and being required to construct reasonable all-weather access for an 85% vehicle is achieved by the adoption of the agreed, revised condition in Exhibit C as follows: The applicant shall carry out, at its own cost, works to the Cunnawarra Fire Trail Road as follows: (a) the road shall be widened to 5.6 m for a distance of 20 m from the Point Lookout Road table drain; (b) at chainage 245 – light vegetation clearing on the right hand side of the road; (c) at ch 290 – place a minimum 8 m3 gravel to cover large surface rocks; (d) from ch 345 to ch 429 – widen the road pavement to 5.6 m; (e) from ch 447 to ch 671 – widen the road pavement to 5.6 m; (f) ch 635 – place a minimum 4 m3 of gravel to cover large surface rocks; (g) at ch 697 – place a minimum 8 m3 of gravel over steal pipe; (h) from ch 841 to ch 883 – carry out tree clearing on right hand side to achieve 60 m drivers eye to drivers eye sight distances; (i) from ch 906 to 936 – widen the road pavement to 5.6 m; (j) at ch 939 – construct mitre drain on right hand side; (k) from ch 1024 to 1063 – place 100 mm layer of gravel on road pavement; (l) at ch 1209 – remove large rock or provide 4 m3 of gravel over rock; (m) from ch 1261 to 1442 – widen the road pavement to 5.6 m; (n) at ch 1306 – lightly grade the road; (o) at ch 1316 – provide spot gravel of 8 m3 over large surface rocks; (p) from ch 1396 to 1466 – provide gravel over existing road surface; The road formation widening referred to in conditions, 6(a), (d), (e), (i), and (m) is to be carried out to achieve a minimum 60 m sight distance (drivers eye to drivers eye). Chainage 00 is the centreline intersection with Forest Way. Road widening works to be carried out using local material compacted to 98% standard compaction. Note (1): If gravel for the above works cannot be sourced from within the site of the works, Council will not unreasonably withhold consent to the use of gravel won from within the Currawarra Trail Road reserve. Note (2): Upon expiry of the defects liability period specified in Council's specification, Council will take over the maintenance responsibility for this section of the road (up to chainage 1446). 28 In summary then I am satisfied that Condition 6 should be amended as agreed by the parties. In doing so, I consider this satisfies the requirement of 13(2) of the LEP which is the relevant planning control in this matter. Court orders 29 The orders of the Court therefore are: 1. The appeal is upheld. 2. Condition 6 of the development consent for DA 0405/0123 for the erection of a dwelling house at Lot 31 DP 751 447 Point Look Out is amended as shown in Annexure "A". 3. The exhibits may be returned except for Exhibits 1, 3, 4, A, C and D. ___________________ R Hussey Commissioner of the Court 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.