Trevor Beesley v Ballina Shire Council [2004] NSWLEC 428

Land and Environment Court of New South Wales

CITATION : Trevor Beesley v Ballina Shire Council [2004] NSWLEC 428 Applicant: Trevor Beesley

PARTIES : Respondent: Ballina Shire Council

Intervener: Natuna Pty Ltd FILE NUMBER(S) : 10267 of 2004 CORAM: Roseth SC KEY ISSUES: Subdivision :- right-of-way to allow condition of consent to be met LEGISLATION CITED: CASES CITED: DATES OF HEARING: 26/07/2004 DATE OF JUDGMENT: 08/11/2004

Mr J Webster, barrister instructed by Allan Arthur Robinson

Mr P Clay, barrister LEGAL REPRESENTATIVES: instructed by Mr A Smith, solicitor

Intevener: Mr D Wilson instructed by Ms Susan Hill, solictor

JUDGMENT: - 1 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Roseth SC

11 August 2004

10267 of 2004 Trevor Beesley v Ballina Shire Council

JUDGMENT 1. SENIOR COMMISSIONER: This is an appeal against three conditions of development consent 2004-627 issued by Ballina Shire Council (the council) for the re-subdivision into three allotments by way of consolidation and boundary adjustment of land in the Riveroaks Estate. That estate is in the ownership of Mr D Cook and Natuna Pty Ltd, however DA 2004-627 is made in respect of that part of the Estate that is in Mr Cook's ownership. 2. The parties have reached agreement on all three conditions and sought consent orders at the hearing. Subsequent to the hearing the applicant approached the Court in writing seeking to add another sentence to Condition 1.8, to the effect that the interim vehicular access needs to be provided only when other access becomes unavailable (see par 19). The council opposed the addition, so that the orders are no longer by consent. The second landowner of the Estate, Natuna Pty Ltd, objects to the amended form of one of the conditions, Condition 1.6. The Court granted leave to the objector to adduce evidence, examine witnesses and make submissions. In the event, the objector's counsel, Mr D Wilson, availed himself only of the leave to make submissions. 3. To understand Natuna's objection to the amended form of Condition 1.6, the background to DA 2004-627 is required. In 2002 the council approved DA 2002-566, an application to create a new residential community on land adjoining the Pacific Highway and in the ownership of Mr Cook and Natuna. Condition 1.70(c) of that consent requires the applicant to provide the council with a detailed Rehabilitation Management Plan containing: Details of the precise areas to be regenerated as mangrove forest, salt marshes and buffer zone plantings." 4. In conjunction with the consent to DA 2002-566, the council adopted Development Control Plan No 1 – Urban Land, Riveroaks Estate (the Riveroaks DCP). Figure 3 of the Riveroaks DCP shows an area at the south end of the site marked "area proposed for mangrove revegetation". That area falls within proposed lot 2 of Consent DA 2004-627. Condition 1.70(c) refers to this area. 5. Existing Condition 1.6 of DA 2004-627 states that lot 2 should be burdened with a s88 instrument that permits "the developer of the Riveroaks Estate" (presumably Mr Cook and Natuna) access for the construction and maintenance of works associated with (a). Stormwater drainage works (b). Mangrove regeneration works (c). Installation and relocation of council services (d). Installation and relocation of public utility services (e). Creation of easements over the above mentioned works and/or services to the benefit of council or public utility as appropriate, (f). The carrying out of development in accordance with the terms and conditions of Development Consent No 2002-566. 6. The amended version of Condition 1.6, agreed to by the council and the applicant but objected to by Natuna, specifically excludes "mangrove regeneration works" from the purposes for which access may be gained over lot 2. In addition it changes the person or entity that may gain access from "developer of the Riveroaks Estate" to "the developer of lot 1", ie only Mr Cook or future owner(s) of his land. The significant difference between the two versions of the disputed condition for Natuna is that the existing version allowed Natuna access through lot 2 in order to carry out mangrove regeneration, while the amended version excludes both Natuna and the activity of mangrove regeneration. 7. Mr J Webster, counsel for the applicant, submitted that the existing version of Condition 1.6 is beyond the council's or the Court's power to impose for two reasons. First, it grants access rights over private land to private interests. Second, it does not relate to the development application. In addition, in Mr Webster's submission, the condition is unreasonable. In his submission, Natuna should negotiate with Mr Cook, and pay for any easements it needs to implement mangrove regeneration. 8. In the council's submission, both versions of Condition 1.6 are within power, but the council's purpose was achieved by the amended version with which the applicant agreed. The council was not concerned with how the two owners achieved compliance with the conditions of consent, as long as they achieved it.