Land and Environment Court of New South Wales CITATION : Groeneveld v Wollongong City Council [2007] NSWLEC 184 APPLICANT John Groeneveld PARTIES : RESPONDENT Wollongong City Council FILE NUMBER(S) : 10823 of 2006 CORAM: Moore C Development Application - Subdivision :- KEY ISSUES: Steepness of access Denial of access to neighbours Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Threatened Species Conservation Act 1995 Wollongong Local Environmental Plan 1990 Stockland Development Proprietary Limited v Manly Council [2004] NSWLEC 472; CASES CITED: Sodhi v Stanes [2007] NSWSC 177; Hayward v Muswellbrook Shire Council [2001] NSWLEC 8 DATES OF HEARING: 1, 2, 8 and 13 March 2007 EX TEMPORE JUDGMENT DATE : 13 March 2007 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT Mr M Mantei, solicitor Kells the Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C 13 March 2007 10823 of 2006 John Groeneveld v Wollongong City Council This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. JUDGMENT 1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal on 22 December 2005, by Wollongong City Council (the Council), of Development Application 2004/1446. It is an application to subdivide a property at 77 New Mt Pleasant Road, Mt Pleasant being Lot 60 DP 1011298 (the site). The site has an area of some 5,443 sq m. 2 The site has two frontages. The first is to New Mt Pleasant Road and is a frontage of approximately 17 m. The second is a frontage to an unformed part of a dedicated public road known as Cabbage Tree Lane. 3 The proposal is to retain the existing dwelling, which is on the New Mt Pleasant Road frontage portion of the allotment and is a dwelling which, by its existence, renders physically impractical any access to the rear of the allotment. 4 It is proposed to retain the house on an allotment of some 1,774 sq m and to create a further five new allotments ranging in size from 816 sq m to 450 sq m. These are proposed to be accessed by both replacing and constructing an extension to the presently existing access structure constructed on Cabbage Tree Lane. The presently existing access structure constructed on Cabbage Tree Lane provides the only access to a number of existing dwellings. 5 Mr Groeneveld, who is a self-represented applicant in these proceedings, indicated that access was not desired through New Mt Pleasant Road (for understandable reasons relating for the retention of the present dwelling and the design of the subdivision). As a consequence, I set aside that possibility in its entirety. 6 However, as a consequence of the existence of a physical frontage and possible access (being a possible access about which I have no evidence) from New Mt Pleasant Road, I am satisfied that there are no issues of the orderly economic development of land arising pursuant to s 5(a)(ii) of the Act arising in these proceedings. 7 The proposal is in an area zoned 2(a), Low Density Residential under the Wollongong Local Environmental Plan 1990 (the LEP). Subdivision is permissible pursuant to cl 10(1a) of the LEP and there is no issue of non-compliance with relevant allotment size requirements contained in the LEP. 8 The site also contains remnant Illawarra Subtropical Rainforest, which is listed as a threatened ecological community under the Threatened Species Conservation Act 1995. 9 I am satisfied that all possible issues with respect to the retention of that remnant have been dealt with during the course of the development application assessment process. 10 The only point I take from the existence of the rainforest remnant is that rainforest remnants are inevitably associated with higher than average levels of rainfall. Levels of rainfall in a recent storm event were in evidence as to the run-off in the vicinity - from photographs provided by Mr and Mrs Whittaker, the downhill (and thus downstream) neighbours immediately to the east. Those photographs, whilst primarily dealing with a streamway that traverses the Whittaker property and is only fed, to a minor degree, by run-off from the site, nonetheless shows significant run-off downslope from the site. 11 Because of the special responsibilities that the Court has to ensure that appropriate procedural fairness is provided to self-represented litigants, a deal of procedural indulgence has been permitted to Mr Groeneveld in the conduct of the proceedings. 12 Because of thse special responsibilities, on the last occasion that the matter was before me, I directed that Mr Mantei, solicitor for the Council, to put Mr Groeneveld on notice, in writing, of the issues which the Council proposed to put as warranting either refusal of the application or, if not regarded by the Council as separately determinative, as ones which would contribute to refusal of it. Mr Mantei did so by letter of 9 March 2007. His closing submissions have been confined substantively to those matters and to responding to questions with respect to them. 13 I indicated, prior to the commencement of closing submissions, that, whilst there were a number of other matters raised by the residents pursuant to s 79C of the Act, I was, prima facie, satisfied that, if I did not find that the application warranted refusal on any of the bases put by Mr Mantei, then appropriate conditions would be a way of dealing with those other matters. 14 I turn now to the matters that are set out in Mr Mantei's letter of notice to Mr Groeneveld. 15 The first of them is that the proposed road within the Cabbage Tree Lane road reserve does not comply with cl D1.10 of the Wollongong City Council Subdivisional Code (the subdivision code). The subdivision code, in table D1.10, includes description of residential road carriageway grades and suggests that a maximum desirable grade of 17% is appropriate but that greater than 17% and up to 20% might be permitted for distances not exceeding 100 m. 16 There is no dispute that the proposed reconstruction of the existing access via Cabbage Tree Lane or its extension to serve the present proposal will require construction of gradients up to and marginally in excess of 28%. 17 I raised with Mr Mantei the question of the terms of cl D1.02, the aims of the subdivision code. 18 I accept, in dealing with the subdivision code, that, if the strictures of McClellan CJ given in Stockland Development Proprietary Limited v Manly Council [2004] NSWLEC 472 at paras 90-92 are complied with and the subdivision code is applicable then the subdivision code is a significant inhibition on this development. To the extent that matters contained in para 92 of McClellan CJ's judgment have been canvassed in the evidence in these proceedings, I have no basis to set aside the subdivision code. 19 However, as I raised with Mr Mantei, the aims contained in D1.02 specifically say the subdivision code is directed to the provision of a road system within a subdivision (which road system is to be designed to achieve a series of enumerated aims). 20 I am satisfied that the present road, Cabbage Tree Lane is, in fact, not a road within a subdivision for the purposes of the subdivision code. 21 I am therefore satisfied that, for the subdivision code to have applied to this application, the subdivision code would need to have been written in a form which suggested that it applies not merely to roads within a subdivision but to roads within existing un-constructed road reserves serving proposed new subdivisions. Presently, it is not so written. 22 The potential implication of such a rewriting is not one of which I would have any knowledge concerning the Wollongong City Council area.and it is certainly not one with respect to which I could draw any conclusion for the tests set out by McClellan CJ in para 92 of Stockland, particularly the first of them relating to public consultation in its application. 23 However, drawing the conclusion that the terms of the subdivision code are not applicable to this application is not to say that the question of the safety or otherwise of the proposed road and its gradients are irrelevant. 24 In a decision of Austin J in the Supreme Court, given this morning, in Sodhi v Stanes [2007] NSWSC 177, his Honour dealt with the question of safety of roads proposed to be created in what might be described as paper road reserves. 25 I am not suggesting in the citing of his Honour's decision that it has any relevant application in these proceedings. The gradients that his Honour was dealing with in those proceedings ranged up to 37.5%. It is simply necessary to note, for the purposes of these proceedings, that questions of safety of proposed construction of roads in paper road reserves can be relevant issues in appropriate proceedings. They are clearly appropriately raised by the Council in these proceedings. 26 To the extent that I have evidence in these proceedings concerning the safety of that proposed road, I have had evidence given concurrently by Mr Pindar, a traffic engineer on behalf of the applicant, and Mr Mellor, a traffic engineer on behalf of the Council. That evidence shows that there was agreement that the proposed road grades are non-compliant with relevant standards; that the existing structure is substandard; and that the proposal would essentially leave unchanged the gradient of that portion of what is proposed to replace that which presently exists as an access to the current dwellings. 27 However, there was a significant disagreement between them as to whether or not gradients of up to or somewhat above 28% could be safe or not. 28 Mr Pindar put the view that, under the circumstances, particularly the level of likely traffic, even if the allotments capable of further development to the south of the existing access structure were developed to their maximum subdivisional potential, such grades were acceptable under the circumstances. Mr Mellor's view was that this was not the case. 29 As a consequence of my determinations relating to other matters which follow, I have concluded that I need not deal with that question. As a consequence, I am prepared, for the purposes of a continuing assessment of the issues, to accept Mr Pindar's evidence that the construction might be capable of being safe and that the necessary design detail could be required to be provided at the construction certificate stage. 30 The second issue raised by the Council (and put as being determinative) is that the proposed reconstruction of Cabbage Tree Lane will have an unacceptable adverse impact on existing users of Cabbage Tree Lane during the construction period. 31 Two matters arise out of this issue. 32 There are six existing dwellings served by access from Cabbage Tree Lane, three of them toward Brokers Road at the west and three of them substantially down the existing access structure. Those down the access structure are, reading from west to east, the Murphy dwelling, the Goodwin dwelling and the Byrne dwelling. 33 In the course of the proceedings, Mr Groeneveld has addressed, through the evidence of Mr Dowey, his civil engineering expert, the question of the provision of access to the three easterly dwellings during the construction stages of the access down Cabbage Tree Lane. 34 Mr Groeneveld has been on notice, for some time, that this question of access was a matter of concern to the Council as this was pleaded as a substantive issue in the proceedings. 35 Although Mr Mantei has taken me to the case of Hayward v Muswellbrook Shire Council [2001] NSWLEC 8, a decision of Cowdroy J, I am satisfied that, because that decision related to public works by a public authority permanently altering the road levels, in a topographic sense, that that decision has little or no relevance in these proceedings. 36 What arises in these proceedings is the fact that, during the daytime, for an unspecified period of construction, during normal construction hours Monday to Friday and on Saturday mornings, the Murphys, the Goodwins and the Byrnes will have no vehicle access to their properties. 37 Outside those hours, it is proposed that non-skid metal plates would be placed over the construction works – with these plates being fixed in place and removed to enable the works to be continued on the next permitted working occasion. The civil construction methodology provided by Mr Dowey, in Mr Groeneveld's supplementary bundle puts it as "provide overnight temporary access to existing houses, reinforced with steel plates with non-slip surface if required." 38 Mr Short, civil engineer on behalf of the Council, and Mr Dowey both gave evidence that neither of them had seen such steel plates used at gradients over 10%, although both of them were familiar with the use of such plates at grades below 10%. 39 There are two reasons why the application must fail with respect to access to these three properties. 40 The first is that I consider it entirely unreasonable, for private benefit for a private subdivision, to permit the residents of these three properties to be denied access to their properties for an unspecified overall length of time, during the daytime construction periods, as would follow from approving the subdivision. 41 Although Mr Groeneveld provided a letter, at the final stages of the hearings after the issue was raised with him, to those residents offering a range of possible compensatory options, I have no evidence that any of those residents have accepted any of those offers. 42 Non-acceptance by them is consistent with the evidence that was given orally on site by the residents and I am prepared to draw the inference, which Mr Mantei asks me to (there being no evidence of positive responses coupled with the evidence given on site by those residents) that those residents have not accepted those offers. 43 I am satisfied that the denial to residents, for an unspecified period of time, of daytime access to their own homes is unreasonable and the application should be refused on that basis. 44 In addition, although access is proposed to be provided on a temporary basis, out of construction hours, by the proposed steel plates, in light of the lack of evidence of any use of such steel plates for access on gradients even remotely approaching the gradients that are proposed in these proceedings, when coupled with the physical evidence of the photographs of the degree of rainfall in the vicinity provided by the Whittakers, I cannot be satisfied that, even after hours, under all climatic conditions, temporary access would be both available and safe for the length of the unspecified period of construction. That, in itself, is a separate and ground warranting refusal of the appeal. 45 There are three further matters that were put by the Council as being of concern but not being determinative in the proceedings. 46 They related to adequate provision of material concerning the location of trees within and adjacent to the Cabbage Tree Lane road reserve; the question of inadequate information relating to the proposed or possible construction of retaining walls in the vicinity of the Mason property at the upper end of the existing access way; and the proposed removal of a number of trees. 47 With respect to the first two of those – that is lack of information, had I been satisfied that access could have been provided on a satisfactory times and safety basis, I would have been prepared to adjourn the matter to enable Mr Groeneveld to obtain further information and evidence but that would have had to have been on the basis of the usual undertaking as to his meeting the additional costs and expenses to the Council. 48 With respect to the third of these matters put as contributing to warranting refusal – that is the removal of trees, Mr Groeneveld offered to redesign a particular retaining wall at the eastern end of the property so as to ensure that six of the eight trees proposed for removal would be retained. 49 I am satisfied that, under the circumstances, a condition to require that and the requiring of submission of amended plans to the satisfaction of the Council would not offend against any decisions of appellate tribunals as to certainty and that, absent compelling evidence that the two trees proposed to be removed were themselves critical, the application would not fail on that basis. The question of the two trees to be removed on a new design would have been a matter for another day. 50 However, I am satisfied that the two distinct and separate reasons discussed above require that this appeal should be dismissed. 51 The first is the daytime denial of access to the three downhill residences on the existing access way. The second is my lack of satisfaction that there could be appropriate and safe after hours access provided to those residences, even if I were satisfied that the daytime denial of access were acceptable, which I clearly am not. 52 The result of the appeal therefore is that the appeal will be dismissed and Development Application 2004/1446 will be determined by the refusal of development consent. 53 The exhibits are returned. Tim Moore 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.