Land and Environment Court of New South Wales CITATION : Bethmont, C v Blue Mountains City Council [2006] NSWLEC 810 APPLICANT: PARTIES : Christian Bethmont RESPONDENT: Blue Mountains City Council FILE NUMBER(S) : 10839 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Dwelling house: Fire access provision Blue Mountains Local Environmental Plan 2005, (BMLEP) LEGISLATION CITED: Blue Mountains Development Control Plan 31, Public Infrastructure Works in Subdivisions and Developments, (DCP31) Environmental Planning and Assessment Act 1979, ss79C and 97 DATES OF HEARING: 30/11/2006 EX TEMPORE JUDGMENT DATE : 11/30/2006 APPLICANT: Mr C Bethmont, self-represented SOLICITORS: LEGAL REPRESENTATIVES: N/A RESPONDENT: Mr A Seton, solicitor SOLICITORS: Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 30 November 2006 10839 of 2006 - Christian Bethmont v Blue Mountains City Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Blue Mountains City Council (the council) to impose conditions in respect of a development application to erect a dwelling house in a cul de sac at Lot 11, Section B, DP 1383, being No 33 Lee Street, Lawson. The disputed conditions relate to the need for the applicant to pay the full cost of bushfire vehicular access and to its width. The applicant considers the council unreasonable in seeking to impose these conditions. 2 I visited the land in company with the parties on the morning of the hearing. 3 I have concluded that the appeal should be dismissed as the council' planning controls clearly indicate fire access requirements and the council has no s 94 Plan in place and it has no works program to upgrade 'unformed' roads such as the northern end of Lee Street. As a result if a dwelling is to be built on the subject land the applicant must submit to the conditions imposed by the council that include a condition to upgrade the road access to a reasonable standard. Conditions in dispute 4 Development consent X05/1191, was issued 19 October 2006, and Condition No 17 (second dot point) and Condition No 31 point 10 principally are in dispute. These conditions are: Condition No 17 (second dot point only) Widening of the existing construction to 4m wide in heavy-duty reinforced concrete and provision of 1 m wide mountable, verges on both sides of the carriageway. Condition No 31, point 10 Public Road Access for fire fighting vehicles is to be extended to the end of Lee Street road reserve directly adjoining the western property boundary and proposed driveway to require the construction of a turning circle to meet the following conditions: · To have a 10m radius such that this encompasses the entire 20m-road reserve. · To be a two wheel drive all weather road surface. · The capacity of the road surface should be sufficient to carry fully loaded fire fighting [vehicle] at all times. · The turning circle to be clearly signposted and indicating the turning radius to fire fighting personnel. 5 The requirements for upgrading the road at the northern end of Lee Street required by the council and the Rural Fire Service (RFS) are shown in concept form in the plan prepared by Barker Ryan Consulting Engineers, [Note: Exhibit A, Tab 13]. 6 The council is content to amend Condition 31(10) to delete reference to a 10m radius turning head and replaced with Condition 17. The other parts of Condition 31(10) are to remain and to be consistent with the Condition 17 requirements. 7 The applicant also objects to Conditions 18 to 25 and then Conditions 29 and 30 in so far as they relate to the widening of the access road within the council's verge. The land 8 The land is situated on the eastern side of Lee Street and is the last lot on the eastern side of the cul-de-sac. It has a frontage to Lee Street of around 20.115m and a depth of around 50m and an area of 1011m2. To the north is North Lawson Park and to the south there is a vacant residential lot similar in size to the subject land. Native vegetation exists on the subject land. The land slopes steeply down towards the west from the dwelling and in the southeastern corner. 9 Near the junction with Park Road, Lee Street, north of Park Road is bitumen paved. Further to the north and to the north of Park Road, Lee Street is a 3m wide concrete road pavement about 37m long that slopes up towards the land at a grade of around 9% to 23%. Further to the north in front of the subject land is a level unmade section of road used as a restricted turning area and access to No 34 Lee Street opposite the subject. Lee Street, south of the junction with Park Road is another cul-de-sac with a limited turning head provided to permit the manoeuvring of vehicles. This turning head is largely level with the road surface and slightly more accessible. 10 The area to the north is a public reserve in a bushland state and adjoins the Blue Mountains National Park. The subject land is 'bushfire prone' under s 146 of the Environmental Planning and Assessment Act 1979, and is identified as Category 2 by the council on the bushfire prone land map. Relevant planning controls Blue Mountains Local Environmental Plan 2005, (BMLEP) 11 Under the provisions of the BMLEP, the land is zoned 'living - bushland conservation' and the proposal with adequate fire safety measures in place is permissible with consent. The front and rear southeast portions of the site are designated as a 'protected area-slope constraint area'. 12 The subject land and Lot 31 abutting to the south is within Bushfire Category 2 as shown on the extract of the BMLEP map in Exhibit 2. 13 The northern part of Lee Street, north of Park Road and north of the bitumen seal is designated as 'unformed road' under the BMLEP, [Note: Exhibit 3]. 14 Relevant provisions of the BMLEP include: Part 1 – Preliminary · Clauses 1-9 – Administration; and · Clauses 10-12 -Planning principles. Part 2 - Locality Management · Clause 13 - General Locality Management; · Clause 15 - Locality Management within the Living Zone, (including the provisions of Schedule 2 Part 3; · Clause 24 - Living-Bushland Conservation zone objectives; and · Clause 32 - Land use matrix. Part 3 - Assessing the site and environmental context · Division 1 (clauses 41-43) - Site Analysis; · Clause 44 - Environmental impact; · Clause 45 - Slope constraint; · Clause 56 - Site disturbance and erosion control; · Clause 57 - Stormwater management; · Clause 58 - Modification of landform; · Clause 60 - Consideration of character and landscape; · Clause 65 - Landscaping for residential development; and · Division 5 (Clauses 78-86) – Bush fire protection. Part 4 - Consideration for development · Clause 94 - General provision of services; · Clause 98 - Access to land from a public road; · Clause 99 - Car parking provision; · Clause 100 - Design for car parking; · Clause 103 - Privacy for dwelling houses and granny flats; and · DCP: Better Living Development Control Plan that requires roads to "…facilitate bushfire management", [Note: Exhibit 5]. Blue Mountains Development Control Plan 31, Public Infrastructure Works in Subdivisions and Developments, (DCP31) 15 The council's requirements for fire vehicle access are set out DCP31 that came into force 19 May 1999 and reiterate the requirements of the NSW Rural Fire Service 'Planning for Bushfire Protection'-2006 publication ISBN 0 9585987 8 9, produced by the RFS, for new development that are: …sufficient width to allow fire fighting vehicle crews to work with fire fighting equipment about the vehicle; and, …safe operational access to structures and water supplies for emergency vehicles while residents are seeking to evacuate the area. 16 Relevant BMDCP provisions are: · Part A – Introduction; · Part B - Site Planning; · Part C - General Principles; · Part C5.3 - Vehicular access, parking & roads; · Part D - Standards for development 2005; and · Part D1 - Dwelling house and ancillary structures. 17 The council does not have a s 94 Contribution Plan for the upgrading of Lee Street, Lawson. Further the council does not have a long-term works program for the upgrading of the 'unformed' northern end of Lee Street. The proposal and its history 18 Development application No X05/1191 was lodged with the respondent council on 27 October 2005 to erect a new single -storey mud-brick dwelling house with an attic on the land. 19 The height of the proposal would be around 8.7m to the ridge measured off the northern elevation; 8.5m to the ridge measured off the south elevation; 3.4m to the eave on the east and west elevations. The setbacks are to the northern boundary 9.5m; to the eastern boundary 22m; to the southern boundary 1.5m; and to the western boundary 19m. The council had originally conditioned the setback to the northern boundary to be 10m however, before the hearing this was amended to 9.5m and thus there is no longer any issue with regard to setbacks or height. 20 The applicant supported the development application with details of a 'driveway for access to and onto the site'. A 3.5m wide driveway paved with heavy-duty paviors with an on-site turning area was proposed. No upgrading was proposed concrete pavement within Lee Street. 21 Under s 79BA of the Environmental Planning and Assessment Act 1979 the application was referred to the Rural Fire Service (RFS) for comment. The RFS conditions were imposed following that consultation. Notification 22 The application was notified to nearby owners and occupants and the council received no objections. The council's decision 23 By notice dated 19 October 2006 the council approved the application subject to conditions. 24 The applicant objects to being required to fund the upgrading of the northern end of Lee Street. The hearing 25 The appeal was filed on 13 September 2006 against the deemed refusal of the application. 26 At the hearing the court heard evidence on behalf of the respondent council from: · Mr P Koen, Executive Principal, Engineering, Blue Mountains City Council. · Mr B A Crane, Bushfire expert. The issues 27 On 25 October 2006 the applicant filed a statement of issues. 1. The absence of a contribution plan for the financing of the turning bay to be constructed at the northern end of Lee St. 2. The discrepancy in the respective classifications of both ends of Lee St. Both were constructed when the standard for road width was of 3 m. as stated in Annexure "K". Both are of comparable width with a verge on one side only. While the southern end, of poor quality, is classified 'Formed', the northern end, of superior quality, is classified 'Unformed'. 28 The applicant maintains that this discrepancy in each end of Lee Street raises two further issues: 1. In the case that the concreted part of Lee St is rightly classified 'Unformed', BMCC has failed to inform me, verbally and as part of the Section 149 Certificate, of the likelihood of costly road requirements, as specified in DPC 31. Had I known this I would not have bought the property located at 33 Lee St, Lawson. 2. In the case that BMCC has overlooked the re-classification of the concreted part of Lee St following its opening and construction in 1989, Council is showing itself to be unreasonable in maintaining that this ratepayer is responsible to finance its improvement, for it is now a 'formed' road, as its existence testifies it, and Council is responsible for its maintenance and construction as stated in DCP 31. 29 The salient issue is whether the fire access conditions sought to be imposed by the council aught be imposed when an application is considered under s 79C of the Environmental Planning and Assessment Act 1979. The evidence and findings Whether the fire access conditions aught be imposed 30 Mr Bethmont told the Court that the dispute is not about the Rural Fire Service (RFS) requirements. Those he fully accepts. He also accepted that the northern end of Lee Street, north of Park Road would need to be upgraded to improve vehicular access, especially in times of bushfire. He maintained that the council has acted unreasonably in imposing conditions that require him to pay the full costs of the bush fire access works. He said that he does not object to the fact that the road needs to be widened or that a turning bay needs to be constructed to satisfy the RFS requirements. He stated that he would be willing to contribute to the fire safety infrastructure but maintained that the works are not wholly and solely generated by his development. 31 Mr Bethmont also stated, [On-site notes]: The dispute lies not with the rock shelf part of the access road which is definitely 'unformed' and for which I have proposed to construct a turning bay, which would link with the end of the existing road to No 34 driveway and the proposed driveway at No 33 Lee Street. The dispute is centred around the existing concrete road [and whether it should be widened]. The council is expecting me to pay entirely for the widening of the road as well as the construction of the turning bay. The total cost would be about $40,000 and $70000 according to whether the council maintains all the conditions attached to the consent or accepts a less costly alternative. To justify its requirements the council has argued for the past year that the concrete road is 'unformed', that it has never been formed and in short it does not exist [as defined by the Oxford dictionary] and I dispute this. The existing road was constructed in 1989 according to road standards of the time and under council's approval and supervision. I would like to present that BMCC shows unreasonableness in expecting the single ratepayer, who is proposing to build a single dwelling, should be held responsible to entirely finance the widening of an existing road and the construction of a turning bay. Both of which are not entirely generated by his development but furthermore would benefit all residents on the northern side of Lee Street or thirteen houses. 32 Mr Seton submitted that the council's position is that in order to maintain fire safety the applicant must improve the fire access to the land before a dwelling is erected on the land. 33 I accept the submissions and evidence of the council and endorse the conditions that the council originally imposed. The land is fire prone, and presently does not have adequate access to permit the erection of the proposed dwelling house. Under present day standards of bush fire safety the northern end of Lee Street should be upgraded, as the council requires. The minimum standard required for council roads to service single dwellings constructed beyond the extent of council's trafficable road system is, [Note: Exhibit 4, p 13]: · a road pavement of at least 4m wide, with a further 1m shoulder on both sides; · the road must incorporate adequate turning facilities for vehicles at the end of its construction. This should be sized to accommodate bush fire fighting vehicles and council waste and effluent removal vehicles; · the road construction must be sealed (two coat bitumen seal, asphaltic concrete or concrete) for any section where the grade exceeds 10% [as here where the maximum grade of the proposed road 23.9%]... Where more than 50% of the road is to be sealed because of this requirement, the whole road is to be sealed; · the road pavement must meet the appropriate geo-technical standards identified in the Blue Mountains City Council Specification for Public Infrastructure – Design; and Blue Mountains City Council Specification for Public Infrastructure – Construction. As a minimum the pavement must consist of 150mm thick DGB 20; and · the passing bays should be provided at least every 100m. The council will not contribute to the cost of the design or construction of road works beyond the extent of its trafficable road system [as here], where the works are proposed to provide access to development proposals. Once a road is designed and constructed in accordance with this specification, [the] council will reclassify the road and undertake the appropriate maintenance in accordance with its maintenance schedules. 34 The council officers agreed that the 3m wide road that was constructed to give access to the dwelling at No 34 Lee Street opposite was constructed to the standard required for such a road in about 1989, but was not designated other than 'unformed'. That 'unformed' road must be brought up to present day standards before a house is built on the subject land. That upgrade should be similar to that designed by Barker Ryan Consulting Plan No 06065E1, Revision B in Exhibit A, Tab 13, but perhaps with less cut and fill that would reduce costs. 35 For the above reasons, the appeal is dismissed. Conditions 36 The conditions are those in Exhibit 6 as amended during the hearing and re-engrossed after the hearing. Orders 37 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed. 2. The development consent in respect of development application No X05/1191 granted by the respondent council on 19 October 2006 to erect a new dwelling house at Lot 11, Section B, DP 1383, being No 33 Lee Street, Lawson, is confirmed with amended conditions agreed to during the hearing as Conditions 1 to 33 in Annexure A. 3. The exhibits except for Exhibits C, 1 and part of 6 being folios 78-86 are returned. S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.