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. Findings 9. There are two questions before the Court: · Can the existing version of Condition 1.6 be lawfully imposed? · Is Natuna's objection to the amended version of Condition 1.6 valid? 10. For a condition of development consent to be lawfully imposed, it must meet three criteria: · It must relate to the development application. · It must be for a planning purpose. · It must be reasonable. 11. I turn to the first criterion. In Mr Webster's submission, a condition requiring access to the mangrove regeneration area does not relate to DA 2004-627, which is only for boundary re-adjustment. I do not accept this submission. DA 2004-627 is integrally related to DA 2002-566. The council's report of 11 March 2004 stated: "The applicant has advised that the purpose of this application is to facilitate the development of Stage 1of the Riveroaks Estate (emphasis added) ." 12. Further down the report it stated: "The proposal involves adjusting boundaries and creating lots to create like-zoned lots to facilitate the residential subdivision and residue lands of the Riverview Estate (emphasis added)." 13. Again, under Conclusions the report stated "The stated objectives of the proposal are to facilitate the future development of the Riveroaks Estate (emphasis added) ." 14. It is clear that DA 2004-627 could not and would not have been approved if DA 2002-566 (ie the subdivision of the Riveroaks Estate) had not been approved first. DA 2004-627 is an extension of (or afterthought to) the 2002 consent. There is no question that the existing version of Condition 1.6 relates to DA 2002-566. Hence it also relates to DA 2004-627. 15. I turn to the question whether the condition serves a planning purpose. The existing version of Condition 1.6 grants the developer of the estate (ie Mr Cook and Natuna) right of access to the area on which mangrove regeneration is required by Condition 1.70(c) of DA 2002-567. The area of mangrove regeneration is identified also in the Riveroaks DCP. The existing version of Condition 1.6 thus facilitates the achievement of a condition of a related consent. It also facilitates the achievement of a requirement of the DCP. It clearly serves a planning function. 16. I turn to the reasonableness of the condition. The applicant submits that the condition is unreasonable because it gives Natuna unfettered rights over the applicant's land. I do not accept this submission. The only right that existing Condition 1.6 confers on the developers of the Estate, including Natuna, is the right of access for the purposes of mangrove regeneration. Mangrove regeneration is required both by the consent and the Riveroaks DCP. 17. I have considered Mr Webster's submission that the existing version of Condition 1.6 is ultra vires because it grants access over the applicant's land to a private, rather than a public interest. However, conditions granting rights-of-way to private interests are not unusual. To take but one example, conditions requiring interallotment drainage easements are usually over private land in favour of other private land. Moreover, the amended version of Condition 1.6, with which the applicant agreed, also grants access to a private interest, namely the developer of lot 1. 18. Finally I turn to the principal reason why, in my opinion, the Court should not accept the amended version of Condition 1.6. The existing version is more likely to achieve the regeneration of the mangrove forest than the amended version. Given that the relationship between the applicant and the objector appears to have broken down, it is unlikely that they will reach speedy agreement over access to the mangrove regeneration area. Without access rights, Natuna would have to go to Court to seek an easement. Further litigation and its attendant delays and costs are likely to slow down the achievement of the Riveroaks DCP's objectives. It would be more sensible to put the cost of litigation towards the regeneration of the mangroves. For the above reasons, the existing version of Condition 1.6 remains. 19. The parties, including the objector, have agreed to amend Conditions 1.2, 1.4(d), 1.8, as well as to add a new condition 1.13. In relation to Condition 1.8 the council and the applicant disagreed whether the interim residential vehicular access should be constructed at the time lots 1 and 3 are created (as the council wants) or only when access otherwise is not available (as the applicant wants). The council submitted that the existing access is unsafe and should not be used when lots 1 and 3 are created. The Court accepts this submission. Orders 1 The appeal is allowed in part. 2 The conditions of Development Consent 2004-627 granted by Ballina Shire Council on 11 March 2004 are amended as follows: · Condition 1.2 is replaced with the following: "The Pacific Highway frontages of propose lot s 1 and 3 shall have a 8m wide strip of land dedicated to council as road reserve for the purposes of landscaping buffer and noise attenuation separation. The dedication of this land shall be at no cost to council. This condition will be subject to the approval by council of the design of interim residential vehicular access points to the Pacific Highway in conformity with Condition 1.8." · Condition 1.4(d) is replaced with the following: "To immediately relinquish vehicular access to the Pacific Highway from proposed lot 3 once alternative constructed public road access is provided across proposed lot 1 as detailed in the Riveroaks Development Control Plan and DA 2002-566. The works associated with the changing of vehicular access on proposed lot 3 shall be completed at no cost to council." · Condition 1.6 is retained unchanged. · Condition 1.8 is amended as follows: "The interim residential vehicular access points to the Pacific Highway, other than the existing access that is situated immediately to the west of Fishery Creek Bridge, for proposed lots 1 and 3 shall be constructed in accordance with an approved design to the satisfaction of council and the Roads and Traffic Authority of NSW. · New condition 1.13 is added: "Notwithstanding any other condition, the easement described on Plan 03404981 as "Proposed Right-of-Way 5m wide in favour of lot 2" shall be extinguished upon the construction of the Link Road shown on Development Consent 2002-566 to the boundary of lots 1 and 2." 3 Exhibit 1 is returned; the other exhibits are retained on the Court's files. __________________ Dr John Roseth Senior Commissioner 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.